Table of Contents
As filed with the Securities and Exchange Commission on May 12, 2006
Registration No. 333-
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTEGRATED ELECTRICAL SERVICES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 76-0542208 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
| 1800 West Loop South | ||
| Suite 500 | ||
| Houston, Texas | 77027-3233 | |
| (Address of Principal Executive Offices) | (Zip code) |
Integrated Electrical Services, Inc.
2006 Equity Incentive Plan
(Full title of the plan)
2006 Equity Incentive Plan
(Full title of the plan)
Curt L. Warnock
Senior Vice President, General Counsel and Corporate Secretary
Integrated Electrical Services, Inc.
1800 West Loop South, Suite 500
Houston, Texas 77027-3233
(Name and address of agent for service)
Senior Vice President, General Counsel and Corporate Secretary
Integrated Electrical Services, Inc.
1800 West Loop South, Suite 500
Houston, Texas 77027-3233
(Name and address of agent for service)
(713) 860-1500
(Telephone number, including area code, of agent for service)
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
| Proposed | Proposed | |||||||||||||||||||||
| Title of securities | Amount to be | Maximum offering | maximum aggregate | Amount of | ||||||||||||||||||
| to be registered | registered (1) | price per share (2) | offering price (2) | registration fee | ||||||||||||||||||
Common Stock, $0.01 par
value per share |
2,002,542 shares | $ | 23.93 | $ | 47,920,830 | $ | 5,127.53 | |||||||||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Integrated Electrical Services, Inc. 2006 Equity Incentive Plan. | |
| (2) | Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(h) under the Securities Act. The price for the 2,002,542 shares issuable under the Integrated Electrical Services, Inc. 2006 Equity Incentive Plan was based on a price of $1.40, the last sale reported over-the-counter on May 10, 2006, as adjusted for the estimated exchange ratio pursuant to the Second Amended Plan of Reorganization of 17.0927, or $23.93. |
TABLE OF CONTENTS
Table of Contents
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given
to participants as specified by Rule 428(b)(1) promulgated under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement is being filed to register the offer and sale of shares of Common
Stock that may be issued under the Integrated Electrical Services, Inc. 2006 Equity Incentive Plan.
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and Exchange Commission
are incorporated by reference in this Registration Statement:
| (a) | The Registrant’s Annual Report on Form 10-K, as amended, for the fiscal year ended September 30, 2005. | ||
| (b) | The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2006, filed on May 10, 2006, and the Form 10-Q/A, filed on May 11, 2006. | ||
| (c) | The Registrant’s Current Reports on Form 8-K filed on October 5, 2005, November 15, 2005, November 22, 2005, December 9, 2005, December 19, 2005, December 22, 2005, December 29, 2005, January 6, 2006, January 20, 2006, January 23, 2006, January 25, 2006, January 27, 2006, January 30, 2006, February 7, 2006, February 15, 2006, February 21, 2006, April 3, 2006 (and the Form 8-K/A filed on April 3, 2006), April 17, 2006, April 21, 2006, April 24, 2006 (and the Form 8-K/A filed on April 24, 2006) and May 1, 2006; provided, however, the Company does not incorporate by reference any information furnished under Item 2.02 or Item 7.01 or any exhibits submitted in connection therewith and included in any of these Current Reports on Form 8-K. | ||
| (d) | The description of the Registrant’s Common Stock contained in the Registration Statement on Form 8-A (No. 1-13783), dated January 14, 1998, including any subsequent amendment(s) or report(s) filed for the purpose of updating such description. |
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that deregisters all securities then remaining unsold shall
also be deemed to be incorporated by reference herein and to be a part hereof from the dates of
filing of such documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this Registration Statement. Upon the written
or oral request of any person to whom a copy of this Registration Statement has been delivered, the
Registrant will provide without charge to such person a copy of any and all documents (excluding
exhibits thereto unless such exhibits are specifically incorporated by reference into such
documents) that have been incorporated by reference into this Registration Statement but not
delivered herewith. Requests for such documents should be directed to Integrated Electrical
Services, Inc., 1800 West Loop South, Suite 500, Houston, Texas 77027-3233, Attention: General
Counsel, telephone (713) 860-1500.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company’s second amended and restated certificate of incorporation and bylaws, as amended,
each provide that the Company shall indemnify each director, officer, employee, or agent of the
Company against all liabilities and expenses reasonably incurred in connection with any action,
suit or proceeding to which he may be made a party by reason of his being or having been a
director, officer, employee, or agent of the Company, to the full extent permitted by Delaware
General Corporation Law. Pursuant to Section 145 of the Delaware General Corporation Law, the
Company generally has the power to indemnify its present and former directors and officers
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against expenses and liabilities incurred by them in connection with any suit to which they are, or
are threatened to be made, a party by reason of their serving in those positions so long as they
acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best
interests of the Company, and with respect to any criminal section, so long as they had no
reasonable cause to believe their conduct was unlawful.
With respect to suits by or in the right of the Company, however, indemnification is generally
limited to attorneys’ fees and other expenses and is not available if the person is adjudged to be
liable to the Company, unless the court determines that indemnification is appropriate. The
statute expressly provides that the power to indemnify authorized thereby is not exclusive of any
rights granted under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Company also has the power to purchase and maintain insurance for its directors and
officers.
The preceding discussion of the Company’s certificate of incorporation and bylaws and Section
145 of the Delaware General Corporation Law is not intended to be exhaustive and is qualified in
its entirety by the Company’s certificate of incorporation, bylaws and Section 145 of the Delaware
General Corporation Law.
The Company has entered into indemnity agreements with its directors and officers. Pursuant
to such agreements, the Company will, to the extent permitted by applicable law, indemnify such
persons against all expenses, judgments, fines and penalties incurred in connection with the
defense or settlement of any actions brought against them by reason of the fact that they were
directors or officers of the Company or assumed certain responsibilities at the direction of the
Company.
The Company has a directors’ and officers’ insurance policy insuring its directors and
officers against certain liabilities, including liabilities under the Securities Act. In the
opinion of the Commission, such indemnification is contrary to public policy and is therefore
unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the
Registrant with the Commission, each of the following exhibits is filed herewith:
| Exhibit Number | Description | |
4.1
|
Second Amended and Restated Certificate of Incorporation of Integrated Electrical Services, Inc. | |
4.2
|
Bylaws of Integrated Electrical Services, Inc. | |
4.3
|
Specimen common stock certificate | |
4.4
|
Integrated Electrical Services, Inc. 2006 Equity Incentive Plan | |
5.1
|
Opinion of Vinson & Elkins LLP | |
23.1
|
Consent of Ernst & Young LLP | |
23.2
|
Consent of Vinson & Elkins LLP (included in the opinion filed as Exhibit 5.1 hereto) | |
24.1
|
Powers of Attorney (included in the signature pages hereto) |
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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;
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with
the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate offering price set forth
in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3 and the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant’s annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to Section 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses incurred or paid by
a director, officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on
May 12, 2006.
| INTEGRATED ELECTRICAL SERVICES, INC. |
||||
| By: | /s/ Curt L. Warnock | |||
| Curt L. Warnock | ||||
| Senior Vice President, General Counsel and Corporate Secretary | ||||
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Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed by the following persons in the capacities and on the date indicated. Each person
whose signature appears below authorizes and appoints each of C. Byron Snyder and Curt L. Warnock,
and each of them severally, acting alone and without the other, as his attorney-in-fact to execute
in the name of such person and to file any amendments to this Registration Statement necessary or
advisable to enable the Registrant to comply with the Securities Act of 1933 and any rules,
regulations and requirements of the registration of the securities which are the subject of this
Registration Statement, which amendments may make such changes in the Registration Statement as
such attorney-in-fact may deem appropriate.
| Signature | Capacity | Date | ||
/s/
C. Byron Snyder
|
Chairman of the Board, Chief | May 12, 2006 | ||
| Executive Officer and President | ||||
/s/ Ronald P. Badie |
||||
| Director | May 12, 2006 | |||
/s/ Donald L. Luke |
||||
| Director | May 12, 2006 | |||
/s/ Charles H. Beynon |
||||
| Director | May 12, 2006 | |||
| Director | May __, 2006 | |||
/s/
David A. Miller
|
Senior Vice President and Chief | |||
| Financial Officer | May 12, 2006 | |||
/s/ Gregory H. Upham |
||||
| Chief Accounting Officer | May 12, 2006 |
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EXHIBIT INDEX
| 4.1 | Second Amended and Restated Certificate of Incorporation of Integrated Electrical Services, Inc. | ||
| 4.2 | Bylaws of Integrated Electrical Services, Inc. | ||
| 4.3 | Specimen common stock certificate | ||
| 4.4 | Integrated Electrical Services, Inc. 2006 Equity Incentive Plan | ||
| 5.1 | Opinion of Vinson & Elkins LLP | ||
| 23.1 | Consent of Ernst & Young LLP | ||
| 23.2 | Consent of Vinson & Elkins LLP (included in the opinion filed as Exhibit 5.1 hereto) | ||
| 24.1 | Powers of Attorney (included in the signature pages hereto) |
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SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
INTEGRATED ELECTRICAL SERVICES, INC.
CERTIFICATE OF INCORPORATION OF
INTEGRATED ELECTRICAL SERVICES, INC.
Integrated Electrical Services, Inc. (the “Corporation”), a corporation organized and existing
under and by virtue of the General Corporation Law of the State of Delaware (“DGCL”), hereby
certifies as follows:
A. The original Certificate of Incorporation of the Corporation was filed in the Office of the
Secretary of State of the State of Delaware (the “Secretary of State”) on June 26, 1997.
B. On February 14, 2006, the Corporation and certain of its affiliates filed voluntary
petitions for relief under Chapter 11 of Title 11 of the United States Code (the “Bankruptcy Code”)
in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division (the
“Bankruptcy Court”) (Case No. 06-30602-BJH-11). This Second Amended and Restated Certificate of
Incorporation amends and restates the Amended and Restated Certificate of Incorporation of the
Corporation, as amended to date (the “Certificate of Incorporation”), and has been duly adopted in
accordance with Sections 242, 245 and 303 of the DGCL, pursuant to the authority granted to the
Corporation under Section 303 of the DGCL to put into effect and carry out the Joint Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code of the Corporation, et al., as confirmed on
April 26, 2006 by order (the “Order”) of the Bankruptcy Court. Provision for amending the
Certificate of Incorporation is contained in the Order of the Bankruptcy Court having jurisdiction
under the Bankruptcy Code for the reorganization of the Corporation.
C. The Certificate of Incorporation of the Corporation is hereby amended and restated to read
in its entirety as follows:
1. The name of the Corporation is Integrated Electrical Services, Inc.
2. The address of its registered office in the State of Delaware is 1209 Orange Street,
Wilmington County of New Castle, Delaware 19801. The name of its registered agent at such
address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or promoted is to engage in
any lawful act or activity for which corporations may be organized under the DGCL.
4. The total number of shares of all classes of stock which the Corporation shall have
authority to issue is one hundred ten million (110,000,000), consisting of ten million
(10,000,000) shares of preferred stock par value $.01 per share (hereinafter called
“Preferred Stock”), and one hundred million (100,000,000) shares of common stock, par value
$.01 per share (hereinafter called “Common Stock”).
(a) The Preferred Stock may be issued from time to time in one or more series
and in such amounts as may be determined by the Board of Directors. The voting
powers, designations, preferences and relative, participating, optional or other
special rights, if any, and the qualifications, limitations, or restrictions
thereof, if any, of the Preferred Stock of each series shall be such as are fixed by
the Board of Directors, authority so to do being hereby expressly granted, and as
are stated and expressed in a resolution or resolutions adopted by the Board of
Directors providing for the issue of such series of Preferred Stock (herein called
the “Directors’ Resolution”). The Directors’ Resolution as to any series shall (1)
designate the series, (2) fix the dividend rate, if any, of such series, establish
whether dividends shall be cumulative or non-cumulative, fix the payment dates for
dividends on shares of such series and the date or dates, or the method of
determining the date or dates, if any, from which dividends on shares of such series
shall be cumulative, (3) fix the amount or amounts payable on shares of such series
upon voluntary or involuntary liquidation, dissolution or winding up of the affairs
of the Corporation, and (4) state the price or prices or rate or rates, and
adjustments, if any, at which, the time or times and the terms and conditions upon
which, the shares of such series may be redeemed at the option of the Corporation or
at the option of the holder or holders of shares of such series or upon the
occurrence of a specified event, and state whether such shares may be redeemed for
cash, property or rights, including securities of the Corporation or another entity;
and such Directors’ Resolutions may (i) limit the number of shares of such series
that may be issued, (ii) provide for a sinking fund for the purchase or redemption
of shares of such series and specify the terms and conditions governing the
operations of any such fund, (iii) grant voting rights to the holders of shares of
such series, (iv) impose conditions or restrictions upon the creation of
indebtedness of the Corporation or upon the issuance of additional Preferred Stock
or other capital stock ranking on a parity therewith, or prior thereto, with respect
to dividends or distributions of assets upon liquidation, (v) impose conditions or
restrictions upon the payment of dividends upon, or the making of other
distributions to, or the acquisition of, shares ranking junior to the Preferred
Stock or to any series thereof with respect to dividends or distributions of assets
upon liquidation, (vi) state the time or times, the price or prices or the rate or
rates of exchange and other terms, conditions and adjustments upon which shares of
any such series may be made convertible into, or exchangeable for, at the option of
the holder or the Corporation or upon the occurrence of a specified event, shares of
any other class or classes or of any other series of Preferred Stock or any other
class or classes of stock or other securities of the Corporation, and (vii) grant
such other special rights and impose such qualifications, limitations or
restrictions thereon as shall be fixed by the Board of Directors, to the extent not
inconsistent with this Section 4 and to the full extent now or hereafter permitted
by the laws of the State of Delaware.
Except as by law expressly provided, or except as may be provided in any
Directors’ Resolution, the Preferred Stock shall have no right or power to
2
vote on any question or in any proceeding or to be represented at, or to
receive notice of, any meeting of stockholders of the Corporation.
Preferred Stock that is redeemed, purchased or retired by the Corporation
shall, assume the status of authorized but unissued Preferred Stock and may
thereafter, subject to the provisions of any Directors’ Resolution providing for the
issue of any particular series of Preferred Stock, be reissued in the same manner as
authorized but unissued Preferred Stock.
(b) Subject to the preferred rights of the holders of shares of any class or
series of Preferred Stock as provided by the Board of Directors with respect to any
such class or series of Preferred Stock, the holders of the Common Stock shall be
entitled to receive, as and when declared by the Board of Directors out of the funds
of the Corporation legally available therefor, such dividends (payable in cash,
stock or otherwise) as the Board of Directors may from time to time determine,
payable to stockholders of record on such dates, not exceeding 60 days preceding the
dividend payment dates, as shall be fixed for such purpose by the Board of Directors
in advance of payment of each particular dividend.
In the event of any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, after the distribution or payment to the holders
of shares of any class or series of Preferred Stock as provided by the Board of
Directors with respect to any such class or series of Preferred Stock, the remaining
assets of the Corporation available for distribution to stockholders shall be
distributed among and paid to the holders of Common Stock ratably in proportion to
the number of shares of Common Stock held by them.
Except as otherwise required by law, each holder of shares of Common Stock
shall be entitled to one vote for each share of Common Stock standing in such
holder’s name of the books of the Corporation.
(c) The Corporation shall be entitled to treat the person in whose name any
share of its stock is registered as the owner thereof for all purposes and shall not
be bound to recognize any equitable or other claim to, or interest in, such share on
the part of any other person, whether or not the Corporation shall have notice
thereof, except as expressly provided by applicable laws.
(d) To the extent required by Section 1123(a)(6) of the Bankruptcy Code, no
nonvoting equity securities of the Corporation shall be issued. This provision
shall have no further force and effect beyond that required by Section 1123(a)(6) of
the Bankruptcy Code and is applicable only for so long as such Section is in effect
and applicable to the Corporation.
5. No holder of stock of the Corporation shall be entitled as of right to purchase or
subscribe for any part of any unissued stock of the Corporation or any
3
additional stock to be issued whether or not by reason of any increase of the authorized
capital stock of the Corporation, or any bonds, certificates of indebtedness, debentures or other
securities convertible into stock or such additional authorized issuance of new stock, but rather
such stock, bonds, certificates of indebtedness, debentures and other securities may be issued and
disposed of pursuant to resolution of the Board of Directors to such persons, firms, corporations
or associations, and upon such terms as may be deemed advisable by the Board of Directors in the
exercise of their discretion.
6. The following provisions are inserted for the management of the business and for the
conduct of the affairs of the Corporation, and for creating, defining, limiting and regulating the
powers of the Corporation, the directors and the stockholders.
(a) Subject to any limitation contained in the bylaws, the Board of Directors
may make bylaws, and from time to time may alter, amend or repeal any bylaws, but
any bylaws made by the Board of Directors may be altered, amended or repealed by the
stockholders at any meeting of stockholders by the affirmative vote of the holders
of at least a majority of the outstanding shares entitled to vote thereon, provided
notice that an amendment is to be considered and acted upon is inserted in the
notice of waiver of notice of such meeting.
(b) The Corporation shall, to the maximum extent permitted from time to time
under the DGCL, indemnify and upon request shall advance expenses to any person who
is or was a party or is threatened to be made a party to any threatened, pending or
completed action, suit, proceeding or claim, whether civil, criminal, administrative
or investigative, by reason of the fact that he is or was or has agreed to be a
director or officer of the Corporation, or while a director or officer 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,
including service with respect to employee benefit plans, against expenses
(including attorneys’ fees and expenses), judgments, fines, penalties and amounts
paid in settlement or incurred in connection with the investigation, preparation to
defend or defense of such action, suit, proceeding or claim, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or was
or has agreed to be a director or officer of the Corporation, or while a director or
officer 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, including service with respect to employee benefit plans, against
expenses (including attorneys’ fees and expenses), judgments, fines, penalties and
amounts paid in settlement or incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding, claim or
counterclaim initiated by or on behalf of such person. Such indemnification shall
not be exclusive of other indemnification rights arising under any bylaw, agreement,
vote of directors or stockholders or otherwise and shall inure to the benefit of the
heirs and legal representatives of such person. Any repeal or modification of the
foregoing provisions of this Section 6(b) shall be prospective only, and shall not
adversely affect any right or protection
4
of a director or officer of the Corporation existing at the time of such repeal
or modification.
(c) A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the DGCL, or (iv) for any transaction from which the
director derived an improper personal benefit. If the DGCL is amended to authorize
corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal
or modification of this Section by the stockholders of the Corporation shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the Corporation existing at the time of such repeal or
modification.
7. Subject to the rights of the holders of any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation to elect additional directors under
specific circumstances:
(a) any action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by any consent in writing of
such stockholders;
(b) special meetings of the stockholders of the Corporation may be called only
by the Chairman of the Board of Directors and shall be called within ten (10) days
after (i) receipt of the written request of the Board of Directors, pursuant to a
resolution approved by a majority of the whole Board of Directors, or (ii) receipt
of the written request of the holders of least 25% of the outstanding shares of
Common Stock; and
(c) the business permitted to be conducted at any special meeting of the
stockholders is limited to the business brought before the meeting by the Chairman
or by the Secretary at the request of a majority of the Board of Directors.
8. The number of directors which shall constitute the whole board shall be such as from time
to time shall be fixed by, or in the manner provided in, the bylaws.
No decrease in the number of directors constituting the Corporation’s Board of Directors shall
shorten the term of any incumbent director. Any vacancy in the Board of Directors, whether arising
through death, resignation or removal of a director, or through an increase in the number of
directors, shall be filled by the majority vote of the remaining
5
directors, although less than a quorum, or by a sole remaining director. The right to
cumulate votes in the election of directors is expressly prohibited.
Any or all of the directors may be removed, with or without cause, by the holders of a
majority of the shares of stock outstanding and entitled to vote for the election of directors.
Notwithstanding the foregoing, whenever the holders of any one or more classes or series of
Preferred Stock issued by the Corporation shall have the right, voting separately by class or
series, to elect directors at an annual or special meeting of stockholders, the election, term of
office, filling of vacancies and other features of such directorships shall be governed by the
terms of the Directors’ Resolutions applicable thereto, and such directors so elected shall not be
subject to the provisions of this Section 8 unless expressly provided by such terms.
9. Election of directors need not be by written ballot unless the bylaws of the Corporation
shall so provide. Meetings of stockholders may be held within or outside of the State of Delaware,
as the bylaws may provide. The books of the Corporation may be kept (subject to any provisions
contained in the statutes of the State of Delaware) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or the bylaws of the
Corporation.
10. The Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation in the manner set forth below, and all rights and
conferred upon the directors or stockholders of the Corporation herein or in any amendment hereof
are granted subject to this reservation.
The affirmative vote of the holders of at least 75% of the then outstanding shares entitled to
vote thereon and the affirmative vote of the holders of at least 75% of the then outstanding shares
of each class of stock of the Corporation voting separately as a class, shall be required to adopt
any amendment to Sections 6, 7, 8 and 10 of the Certificate of Incorporation of the Corporation.
The affirmative vote of the holders of at least a majority of the then outstanding shares
entitled to vote thereon and the affirmative vote of the holders of at least a majority of the then
outstanding shares of each class of stock of the Corporation voting separately as a class, shall be
required to adopt any amendment to the Certificate of Incorporation of the Corporation, other than
Sections 6, 7, 8 and 10.
IN WITNESS WHEREOF, this Second Amended and Restated Certificate of Incorporation has been
executed for and on behalf of the Corporation by its officers thereunto duly authorized as of
May 12, 2006.
| /s/ Curt L. Warnock | ||||
| Curt L. Warnock | ||||
| Senior Vice President, General Counsel and Corporate Secretary | ||||
6
BYLAWS
OF
INTEGRATED ELECTRICAL SERVICES, INC.
(AS AMENDED)
(Effective as of May 12, 2006)
ARTICLE I
OFFICES
Section 1. The registered office of Integrated Electrical Services, Inc. (the “Corporation”)
shall be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such other places both within and outside
of the state of Delaware as the Board of Directors may from time to time determine or the business
of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. All meetings of the stockholders for the election of Directors shall be held at
such place as may be fixed from time to time by the Board of Directors and stated in the notice of
the meeting. Meetings of stockholders for any other purpose may be held at such time and place,
within or outside of the State of Delaware, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
Section 2. Annual meetings of stockholders shall be held on such date and at such time as
shall be designated from time to time by the Board of Directors and stated in the notice of the
meeting. At the annual meeting, the stockholders shall elect by a plurality vote the Directors
pursuant to Article III of these Bylaws, and transact such other business as may properly be
brought before the meeting.
Section 3. Written notice of the annual meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to a vote at such meeting not less than ten
(10) nor more than sixty (60) days before the date of the meeting.
At an annual meeting of the stockholders, only such business shall be conducted as shall have
been properly brought before the meeting. To be properly brought before an annual meeting,
business must be (i) specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or
at the direction of the Board of Directors, or (iii) otherwise properly brought before the meeting
by a stockholder. For business to be properly brought before an annual meeting by a stockholder,
the stockholder must have given timely notice thereof in writing to the Secretary of the
Corporation. To be timely, a stockholder’s notice must be delivered to or mailed to and received
at the principal executive offices of the Corporation not less than 80 days prior to the meeting;
provided, however, that in the event that less than 90 days’ notice or prior public disclosure of
the date of the meeting is given or made to stockholders, notice by the stockholder to be timely
must be so received not later than the close of business on
the tenth day following the date on which such notice of the date of the annual meeting was
mailed or such public disclosure made.
A stockholder’s notice to the Secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (a) a brief description of the business desired to be
brought before the annual meeting and the reasons for conducting such business at the annual
meeting, (b) the name and address, as they appear on the Corporation’s books, of the stockholder
proposing such business, (c) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, and (d) any material interest of the stockholder in such
business. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted
at an annual meeting except in accordance with the procedures set forth in this Section 3.
The presiding officer of an annual meeting shall, if the facts warrant, determine and declare
to the meeting that business was not properly brought before the meeting in accordance with this
Section 3, and if the presiding officer should so determine, the presiding officer shall so declare
to the meeting and any such business not properly brought before the meeting shall not be
transacted.
Section 4. The officer who has charge of the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the
address of each stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose germane to the
meeting, during ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place where the meeting is
to be held. The list shall also be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present.
Section 5. Special meetings of the stockholders for any purpose may be called only by the
Chairman of the Board of Directors and shall be called within 10 days after (i) receipt of the
written request of the Board of Directors, pursuant to a resolution approved by a majority of the
entire Board of Directors, or (ii) receipt of the written request of the holders of least 25% of
the outstanding shares of Common Stock. The business permitted to be conducted at any special
meeting of the stockholders is limited to the business brought before the meeting by the Chairman
or by the Secretary at the request of a majority of the entire Board of Directors.
Section 6. Written notice of a special meeting stating the place, date and hour of the
meeting, and the purpose or purposes for which the meeting is called, shall be given not less than
ten (10) nor more than sixty (60) days before the date of the meeting, to each stockholder entitled
to vote at such meeting.
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Section 7. The holders of a majority of the stock issued, outstanding and entitled to vote,
present in person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by statute or by the
certificate of incorporation. If, however, such quorum shall not be present or represented at any
meeting of the stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have power to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present or represented.
Section 8. When a meeting is adjourned to another time or place, notice need not be given of
the adjourned meeting, except as otherwise required by this Section 8, if the time and place
thereof are announced at the meeting at which the adjournment is taken. At such adjourned meeting
the Corporation may transact any business which might have been transacted at the original meeting.
If the adjournment is for more than thirty (30) days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting.
Section 9. If a quorum exists, action on a matter (other than the election of directors) shall
be approved if the votes cast in favor of the matter exceed the votes cast opposing the matter. In
determining the number of votes cast, shares abstaining from voting or not voted on a matter will
not be treated as votes cast. The provisions of this paragraph will govern with respect to all
votes of stockholders except as otherwise provided for in these Bylaws or in the certificate of
incorporation or by a specific statutory provision superseding the provisions contained in these
Bylaws or the certificate of incorporation.
Section 10. Each stockholder shall at every meeting of the stockholders, subject to any
restriction or qualification set forth in the Certificate of Incorporation, be entitled to one vote
in person or by proxy for each share of the capital stock having voting power held by such
stockholder, but no proxy shall be voted after three years from its date, unless the proxy provides
for a longer period.
Section 11. Any action required or permitted to be taken by the stockholders of the
Corporation must be affected at a duly called annual or special meeting of stockholders of the
Corporation and may not be effected by any consent in writing of such stockholders.
Section 12. At each meeting of stockholders, the Chairman or Vice-Chairman of the Board of
Directors shall preside, and the secretary shall keep records, and in the absence of either such
officer, his duty shall be performed by a person appointed at the meeting.
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ARTICLE III
DIRECTORS
Number, Nomination, Removal
Section 1. The number of Directors shall be fixed from time to time by the Board of Directors,
but shall not be less than 1 nor more than 15 persons. The Directors shall be elected at the
annual meeting of the stockholders in accordance with the provisions of Section 2 of this Article,
and each Director elected shall hold office until the next annual meeting of stockholders and until
his or her successor is elected and qualified or until his or her earlier resignation or removal.
Directors need not be stockholders.
Section 2. Subject to the rights of holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, nominations for the election
of Directors may be made by the Board of Directors or a committee appointed by the Board of
Directors or by any stockholder entitled to vote in the election of Directors generally. Any
stockholder entitled to vote in the election of Directors generally may nominate one or more
persons for election as Directors at a meeting only if written notice of such stockholder’s intent
to make such nomination or nominations has been given, either by personal delivery or by United
States mail, postage prepaid, to the Secretary of the Corporation not later than 80 days prior to
the date of any annual or special meeting. In the event that the date of such annual or special
meeting was not publicly announced by the Corporation by mail, press release or otherwise more than
90 days prior to the meeting, notice by the stockholder to be timely must be delivered to the
Secretary of the Corporation not later than the close of business on the tenth day following the
day on which such announcement of the date of the meeting was communicated to the stockholders.
Each such notice shall set forth: (a) the name and address of the stockholder who intends to
make the nomination and of the person or persons to be nominated; (b) a representation that the
stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to nominate the person or persons specified
in the notice; (c) a description of all arrangements or understandings between the stockholder and
each nominee and any other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (d) such other information regarding
each nominee proposed by such stockholder as would be required to be included in a proxy statement
filed pursuant to the proxy rules of the Securities and Exchange Commission had the nominee been
nominated, or intended to be nominated, by the Board of Directors, and (e) the consent of each
nominee to serve as a Director of the Corporation if so elected.
5
If the presiding officer of the meeting for the election of Directors determines that a
nomination of any candidate for election as a Director at such meeting was not made in accordance
with the applicable provisions of these Bylaws, such nomination shall be void.
Section 3. Subject to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect additional Directors
under specified circumstances, newly created directorships resulting from any increase in the
number of Directors and any vacancy on the Board of Directors resulting from death, resignation,
disqualification, removal or other cause shall be filled solely by the affirmative vote of a
majority of the remaining Directors then in office, even though less than a quorum of the Board of
Directors, or by a sole remaining Director. Any Director elected or chosen as provided herein
shall hold office until the sooner of the following events: (i) the expiration of the term of the
directorship to which he is appointed, (ii) such time as his successor is elected and qualified or
(iii) his resignation or removal. No decrease in the number of Directors constituting the Board of
Directors shall shorten the term of an incumbent Director.
Section 4. Subject to the rights of the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon liquidation to elect additional Directors
under specified circumstances, any or all Directors may be removed from office, with or without
cause, by the holders of a majority of the shares of Voting Stock.
For the purpose of this Section 4, “Voting Stock” shall mean the outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of Directors. In any vote
required by or provided for in this Section 4, each share of Voting Stock shall have the number of
votes granted to it generally in the election of Directors.
Section 5. The business of the Corporation shall be managed by its Board of Directors, which
may exercise all such powers of the Corporation and do all such lawful acts and things as are not
by statute or by the certificate of incorporation or by these Bylaws directed or required to be
exercised or done by the stockholders.
Meetings of the Board of Directors
Section 6. The Board of Directors of the Corporation may hold meetings, both regular and
special, either within or outside of the State of Delaware.
Section 7. Meetings of the Board of Directors may be held at such time and place as shall be
specified in a notice given in the manner hereinafter provided, or as shall be specified in a
written waiver signed by all of the Directors.
6
Section 8. Regular meetings of the Board of Directors may be held without notice at such time
and at such place as shall from time to time be determined by the Board of Directors.
Section 9. Special meetings of the Board of Directors may be called by the Chairman of the
Board on 24 hours’ notice to each Director, either personally or by telecopy or telegram; special
meetings shall be called by the president, chief executive officer or secretary in like manner and
on like notice on the written request of three Directors.
Section 10. Except as provided in these Bylaws to the contrary, at all meetings of the board a
majority of the total number of Directors shall constitute a quorum for the transaction of business
and the vote of a majority of the Directors entitled to vote and present at a meeting at which a
quorum is present shall be the act of the Board of Directors, unless the certificate of
incorporation shall require a vote of a greater number. If a quorum shall not be present at any
meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time
to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 11. Unless otherwise restricted by the certificate of incorporation or these Bylaws,
any action required or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting, if all members of the board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board of Directors or committee.
Section 12. At all meetings of the Board of Directors, business shall be transacted in such
order as from time to time the Board of Directors may determine.
At all meetings of the Board of Directors, the Chairman or Vice-Chairman of the Board of
Directors shall preside, and in the absence of either such Director a person shall be chosen by the
board from among the Directors present to act as chairman of the meeting.
The secretary of the Corporation shall act as secretary of the meeting of the Board of
Directors, but in the absence of the secretary, the presiding officer may appoint any person to act
as secretary of the meeting.
Committees of Directors
Section 13. The Board of Directors may, by resolution adopted by a majority of the whole
board, designate one (1) or more committees, each committee to consist of one (1) or more
Directors. The board may designate one (1) or more directors as alternate members of any
committee, who may replace any absent or disqualified member of any meeting of the committee. In
the absence or disqualification of a
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member, and the alternate or alternates, if any, designated for such member, of any committee,
the member or members thereof present at the meetings and not disqualified from voting, whether or
not he or they constitute a quorum, may unanimously appoint another director to act at the meeting
in the place of any such absent or disqualified member.
Any such committee, to the extent provided in the resolution establishing such committee,
shall have and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the corporation, and may authorize the seal of the
Corporation to be affixed to all papers which may require it; but no such committee shall have the
power or authority in reference to the following matters: (i) approving or adopting, or
recommending to the stockholders, any action or matter expressly required by the Delaware General
Corporation Law to be submitted to stockholders for approval or (ii) adopting, amending or
repealing any bylaw of the Corporation. Such committee or committees shall have such name or names
as may be determined from time to time by resolution adopted by the Board of Directors.
Section 14. Each committee shall keep regular minutes of its meetings and report the same to
the Board of Directors.
Compensation of Directors
Section 15. The Directors may be paid their expenses, if any, of attendance at each meeting of
the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of
Directors or a stated salary or retainer as Director. No such payment shall preclude any Director
from serving the Corporation in any other capacity and receiving compensation therefor. Members of
special or standing committees may be allowed like compensation for attending committee meetings.
The Chairman of the Board of Directors
Section 16. The Chairman of the Board of Directors of the Corporation shall preside at all
meetings of stockholders and the Board of Directors. He shall perform such duties and have such
powers as usually appertain to the office or as the Board of Directors may from time to time
prescribe.
The Vice Chairman of the Board of Directors
Section 17. The Vice Chairman of the Board of Directors of the Corporation shall perform such
duties and have such powers as the Board of Directors or Chief Executive Officer may from time to
time prescribe.
8
ARTICLE IV
NOTICES
Section 1. Whenever notice is required to be given to any Director or stockholder pursuant to
a statutory provision or the certificate of incorporation or these Bylaws, it shall not be
construed to mean personal notice, but such notice may be given in writing, by mail, addressed to
such Director or stockholder, at his address as it appears in the records of the Corporation, with
postage thereon prepaid, and such notice shall be deemed to be given at the time when the same
shall be deposited in the United States mail. Notice to Directors may also be given personally or
by telegram or telecopy.
Section 2. Whenever notice is required to be given pursuant to a statutory provision or the
certificate of incorporation or Bylaws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated therein, shall be deemed
equivalent thereto.
ARTICLE V
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the Board of Directors and shall
be a chief executive officer, a president, a vice president, a secretary and a treasurer. The
Board of Directors may also appoint chief operating officers, additional vice presidents and one or
more assistant secretaries and assistant treasurers. Any number of offices may be held by the same
person, unless the certificate of incorporation or these Bylaws otherwise provide.
Section 2. The Board of Directors at its first meeting after each annual meeting of
stockholders shall choose a chief executive officer, a president, one or more chief operating
officers, one or more vice presidents, a secretary and a treasurer.
Section 3. The Board of Directors may appoint such other officers and agents as it shall deem
necessary who shall hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board.
Section 4. The salaries of all officers and agents of the Corporation shall be fixed by the
Board of Directors, a committee thereof or any such party to which either of them may delegate such
authority.
Section 5. The officers of the Corporation shall hold office until their successors are chosen
and qualify. Any officer elected or appointed by the Board of Directors may be removed at any time
by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors.
9
The Chief Executive Officer
Section 6. The Chief Executive Officer of the Corporation shall have general and active
management of the business of the Corporation and shall see that all orders and resolutions of the
Board of Directors are carried into effect. He shall have the authority to execute all documents
and instruments necessary to carry out the management of the business of the Corporation. He shall
execute bonds, mortgages and other contracts requiring a seal, under the seal of the Corporation,
except where required or permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of this Corporation. He shall perform such other duties and have such other
powers as the Board of Directors may from time to time prescribe. He shall report to the Board of
Directors.
The President
Section 7. The President of the Corporation shall perform such duties and have such powers as
usually appertain to the office or as the Chief Executive Officer or the Board of Directors may
from time to time prescribe. He shall have the authority to execute all documents and instruments
necessary to carry out the management of the business of the Corporation. He shall report to the
Chief Executive Officer.
The Chief Operating Officers
Section 8. The chief operating officers of the Corporation shall be responsible for the
day-to-day operations of the Corporation and shall have the authority to execute all documents and
instruments necessary to carry out such operations. They shall perform such other duties and have
such other powers as the Board of Directors may from time to time prescribe. They shall report to
the Board of Directors.
The Vice Presidents
Section 9. In the absence of the president or in the event of his inability or refusal to act,
the vice president (or in the event there is more than one, the vice presidents in the order
determined by the Board of Directors, or, if there be no such determination, then in the order of
their election), shall perform the duties of the president, and when so acting, shall have all the
powers of and be subject to all the restrictions imposed upon the president. The vice presidents
shall perform such other duties and have such other powers as the Board of Directors may from time
to time prescribe.
The Secretary and the Assistant Secretary
Section 10. The secretary shall attend all meetings of the Board of Directors and all meetings
of the stockholders and record all the proceedings of the meetings to be kept for that purpose and
shall perform like duties for the standing committees when required. He shall give, or cause to be
given, notice of all meetings of
10
the stockholders and special meetings of the Board of Directors, and shall perform such other
duties as may be prescribed by the Board of Directors or president, under whose supervision he
shall be. He shall have custody of the corporate seal of the Corporation, if any such seal be
adopted by resolution of the Board of Directors, and he, or an assistant secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by his signature or by the signature of such assistant secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and to attest the
affirming thereof by his signature.
Section 11. The assistant secretary (or if there be more than one, the assistant secretaries
in the order determined by the Board of Directors, or, if there be no such determination, then in
the order of their election) shall, in the absence of the secretary or in the event of his
inability or refusal to act, perform the duties and exercise the powers of the secretary and shall
perform such other duties and have such other powers as the Board of Directors may from time to
time prescribe.
The Treasurer and Assistant Treasurer
Section 12. The treasurer shall have the custody of the corporate funds and securities and
shall keep full and accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name and to the credit
of the Corporation in such depositories as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper
vouchers for such disbursements, and shall render to the president and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of all his
transactions as treasurer and of the financial condition of the Corporation.
Section 13. The assistant treasurer (or, if there shall be more than one, the assistant
treasurers in the order determined by the Board of Directors, or, if there be no such
determination, then in the order of their election) shall, in the absence of the treasurer or in
the event of his inability or refusal to act, perform the duties and exercise the powers of the
treasurer and shall perform such other duties and have such other powers as the Board of Directors
may from time to time prescribe.
ARTICLE VI
CERTIFICATES OF STOCK
Section 1. Every holder of stock in the Corporation shall be entitled to a certificate, signed
by, or in the name of the Corporation by, the Chairman of the Board, the chief executive officer,
the president or a vice president and the secretary or an assistant secretary of the Corporation,
certifying the number of shares owned by him in the Corporation. Any signature on the certificate
may be a facsimile. If the Corporation shall be authorized to issue more than one class of stock
or more than one series of any
11
class of stock, the designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such class or series of
stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of
Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the
certificate which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder who so requests the
designations, preferences and relative, participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
Section 2. Where a certificate is countersigned (1) by a transfer agent other than the
Corporation or its employee or, (2) by a registrar other than the Corporation or its employee, any
signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to
be such officer, transfer agent or registrar before such certificate is issued, it may be issued by
the Corporation with the same effect as if he were such officer, transfer agent or registrar at the
date of issue.
Lost Certificates
Section 3. The Board of Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the Corporation alleged to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the
certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate or certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate
or certificates, or his legal representative, to advertise the same in such manner as it shall
require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
Transfers of Stock
Section 4. Upon surrender to the Corporation or the transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by a proper evidence of succession, assignment
or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction upon its books.
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Fixing Record Date
Section 5. In order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive
payment of any dividend or other distribution or allotment of any rights, or entitled to exercise
any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be
more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than
sixty (60) days prior to any other action. A determination of stockholders of record entitled to
notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
Registered Stock Holders
Section 6. The Corporation shall be entitled to recognize the exclusive right of a person
registered on its books as the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise provided by the laws of Delaware.
ARTICLE VII
GENERAL PROVISIONS
Dividends
Section 1. Dividends upon the capital stock of the Corporation, subject to the provisions of
the certificate of incorporation, if any, may be declared by the Board of Directors at any regular
or special meetings, pursuant to law. Dividends may be paid in cash, in property, or in shares of
the capital stock, subject to the provisions of the certificate of incorporation.
Section 2. Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Directors from time to time, in their
absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation, or for such other
purpose as the Directors shall think conducive to the interest of the Corporation, and the
Directors may modify or abolish any such reserve in the manner in which it was created.
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Checks
Section 3. All checks or demands for money and notes of the Corporation shall be signed by
such officer or officers or such other person or persons as the Board of Directors may from time to
time designate.
Fiscal Year
Section 4. The fiscal year of the Corporation shall begin on the first day of October of each
year and end on the last day of September of each year, unless otherwise determined by the Board of
Directors.
Seal
Section 5. The corporate seal, if any such seal be adopted by resolution of the Board of
Directors, will be in such form as the Board of Directors may prescribe. The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise placed
thereon.
Interested Directors and Officers
Section 6.
(a) No contract or transaction between the Corporation and one or more of its Directors or
officers, or between the Corporation and any other corporation, partnership, association, or other
organization in which one or more of its Directors or officers are Directors or officers, or have a
financial interest, shall be void or voidable solely for this reason, or solely because the
Director or officer is present at or participates in the meeting of the board or committee thereof
which authorizes the contract or transaction, or solely because his or their votes are counted for
such purposes, if;
(1) the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or the
committee, and the board or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested Directors,
even though the disinterested Directors be less than a quorum; or
(2) or the material facts as to his relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled to
vote thereon, and the contract for transaction is specifically approved in good
faith by vote of the stockholders; or
(3) the contract or transaction is fair as to the Corporation as of the time
it is authorized, approved or ratified, by the Board of Directors, a committee
thereof, or the stockholder.
14
(b) Common or interested Directors may be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE VIII
AMENDMENTS
These Bylaws may be altered, amended or repealed, or new Bylaws may be adopted by the
affirmative vote of a majority of the entire Board of Directors at any meeting and without the
consent or vote of the stockholders. These Bylaws may be altered, amended or repealed, or new
Bylaws may be adopted by the stockholders at any regular meeting of the stockholders or at any
special meeting of the stockholders, if notice of such alteration, amendment, repeal or adoption of
new Bylaws is contained in the notice of such meeting, by the holders of at least a majority of the
total voting power of all shares of stock of the Corporation entitled to vote in the election of
directors, considered for purposes of this Article VIII as one class.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
Section 1. The Corporation shall, to the full extent permitted by Section 145 of Title 8 of
the General Corporation Law of the State of Delaware, as amended from time to time, indemnify all
officers and directors of the Corporation whom it may indemnify pursuant thereto. The provisions
of this Article IX shall apply to acts or omissions occurring before or after the adoption hereof.
The right of indemnification herein provided for shall not be exclusive of any other right to which
any Director or officer may now or hereafter be entitled under any statute, bylaw, agreement, vote
of stockholders or disinterested Directors or otherwise, shall continue as to a person who has
ceased to be such Director or officer entitled to indemnification pursuant to this Article IX and
shall inure to the benefit of the heirs, executors and administrators of such Director or officer.
Section 2. The Corporation may purchase and maintain insurance on behalf of any person who 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 against any liability asserted against him
and incurred by him in any such 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
this Article IX or of Section 145 of the General Corporation Law of the State of Delaware.
Section 3. The indemnification provided by this Article IX shall be subject to all valid and
applicable laws, and, in the event this Article IX or any of the
15
provisions hereof or the indemnification contemplated hereby are found to be inconsistent with
or contrary to any such valid laws, the latter shall be deemed to control, and this Article IX
shall be regarded as modified accordingly and, as so modified, shall continue in full force and
effect.
16
INTEGRATED ELECTRICAL SERVICES, INC.
The Corporation will furnish to any stockholder, upon request and without charge, a
statement of the
powers, designations, and relative rights, preferences and
limitations of each class of stock
or series thereof
of the Corporation, and the qualifications, limitations or restrictions of such preferences
and/or rights. Such request may be made to the Corporation or the Transfer Agent.
The
following abbreviation, when used In the Inscription on the logo of
this certificate,
shall be construed as though they were written out in full
according to applicable laws or regulations:
| TEN COM — | as tenants In common | UNIF GIFT MIN ACT — | Custodian | |||||
| TEN ENT — | as tenants by the entireties | (Cust) (Minor) | ||||||
| JT TEN — | as joint tenants with | under Uniform Gifts to Minors | ||||||
| right of survivorship and | Act | |||||||
| not as tenants In common | (State) | |||||||
| UNIF TRF MIN ACT — | Custodian (until age ) | |||||||
| (Cust) | ||||||||
| under Uniform Transfers | ||||||||
| (Minor) | ||||||||
| to Minors Act | ||||||||
| (State) |
Additional
abbreviation may also be used though not In the above list
For
Value
received hereby
sell assign and transfer unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
IDENTIFYING NUMBER OF ASSIGNEE
| Shares of the capital stock represented by the within Certificate and do hereby irrovocably constitute and appoint | ||
| Attorney to transfer the said stock on the books of the within named Company with full power of substatution in the premises. | ||
Dated |
||
| (SIGNATURE) | ||
| (SIGNATURE) | ||
| NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. |
SIGNATURE(S) GUARANTEED BY: |
||||
| THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C RULE 17Ad-15. | ||||
Integrated Electrical Services, Inc.
2006 Equity Incentive Plan
2006 Equity Incentive Plan
Effective as of
May 12, 2006
TABLE OF CONTENTS
| Page | ||||||
SECTION 1.
|
PURPOSE | 1 | ||||
SECTION 2.
|
ADMINISTRATION | 1 | ||||
SECTION 3.
|
ELIGIBILITY | 2 | ||||
SECTION 4.
|
STOCK SUBJECT TO PLAN | 2 | ||||
SECTION 5.
|
AWARDS | 2 | ||||
SECTION 6.
|
OPTIONS | 3 | ||||
SECTION 7.
|
STOCK AWARDS | 5 | ||||
SECTION 8.
|
PAYMENT FOR SHARES | 6 | ||||
SECTION 9.
|
TERMINATION OF SERVICE | 7 | ||||
SECTION 10.
|
ADJUSTMENT OF SHARES | 8 | ||||
SECTION 11.
|
GENERAL TERMS | 9 | ||||
SECTION 12.
|
DURATION AND AMENDMENTS | 10 | ||||
SECTION 13.
|
DEFINITIONS | 11 | ||||
SECTION 14.
|
MISCELLANEOUS | 15 |
Integrated
Electrical Services, Inc.
2006 Equity Incentive Plan
2006 Equity Incentive Plan
SECTION 1. PURPOSE.
The purpose of the Integrated Electrical Services, Inc. 2006 Equity Incentive Plan (the
“Plan”) is to promote the success and enhance the value of Integrated Electrical Services,
Inc. (the “Company”) and its Subsidiaries by linking the personal interests of the
employees, consultants and directors of the Company and its Subsidiaries who have been or will be
given responsibility for the management or administration of the Company (or one of its
Subsidiaries) to those of Company stockholders and by providing such individuals with an incentive
for outstanding performance to generate superior returns to Company stockholders. The Plan is
further intended to provide flexibility to the Company in its ability to motivate, attract, and
retain the services of employees, consultants and directors of the Company and its Subsidiaries
upon whose judgment, interest, and special effort the successful conduct of the Company’s operation
is largely dependent. Unless the context otherwise requires, capitalized terms used herein are
defined in Section 13 of the Plan.
SECTION 2. ADMINISTRATION.
(a) Committee. The Plan will be administered by a Compensation Committee of the Board of Directors
and shall be comprised solely of not less than two (2) members who shall be (i) “non-employee
directors” within the meaning of Rule 16b-3(b)(3) (or any successor rule) promulgated under the
Exchange Act, (ii) “outside directors” within the meaning of Treasury Regulation Section
1.162-27(e)(3) under Section 162(m) of the Code, and (iii) “independent directors” within
the meaning of the listing standards of the New York Stock Exchange or, if listed thereon, the
Nasdaq Stock Market (and each other exchange on which the Company may be listed).
(b) Authority of the Committee. The Committee shall have full authority and sole discretion to
take any actions it deems necessary or advisable for the administration and operation of the Plan,
including, without limitation, the right to construe and interpret the provisions of the Plan or
any Award Agreement, to provide for any omission in the Plan, to resolve any ambiguity or conflict
under the Plan or any Award Agreement, to accelerate vesting of or otherwise waive any requirements
applicable to any Award, to extend the term or any period of exercisability of any Award, to modify
the purchase price or exercise price under any Award and to establish terms or conditions
applicable to any Award. All decisions, interpretations and other actions of the Committee shall
be final and binding on all participants and other persons deriving their rights from a
participant.
1
SECTION 3. ELIGIBILITY
The Committee in its sole discretion is authorized to grant Awards to Employees, Consultants and
Directors. Such persons who have been granted Awards shall be participants in the Plan with
respect to such Awards. No individual shall have the right to be selected to receive an Award
under the Plan, or, having been so selected, to be selected to receive a future Award.
SECTION 4. STOCK SUBJECT TO PLAN.
(a) Basic Limitation. Subject to the provisions of this Section 4 and Section 10 of the Plan, the
maximum number of shares of common stock of the Company that may be issued pursuant to Awards under
the Plan is 2,002,542 Shares. Shares may be treasury shares or authorized but unissued shares.
(b) Annual Award Limitation. Subject to the provisions of Section 10 of the Plan, the maximum
number of Shares with respect to which Options or Stock Awards may be granted to any individual
participant under the Plan in any calendar year shall be 1,001,271 Shares.
(c) Additional Shares. In the event that any outstanding Award expires, is cancelled or otherwise
terminated, Shares allocable to the unexercised or unvested portion of such Award shall again be
available for the purposes of the Plan. In the event that Shares issued under the Plan are
reacquired by the Company pursuant to any forfeiture provision, right of repurchase, right of first
offer or withholding requirements, such Shares shall again be available for purposes of the Plan.
In the event a participant pays for any Award through the delivery of previously acquired Shares,
the number of Shares available shall be increased for purposes of the Plan by the number of Shares
delivered by the participant. To the extent permitted by applicable law or any exchange rule,
Shares issued in assumption of, or in substitution for, any outstanding awards of any entity
acquired in any form of combination by the Company or any Subsidiary shall not be counted against
Shares available for grant pursuant to the Plan.
SECTION 5. AWARDS.
(a) Types of Awards. The Committee may, in its sole discretion, make Awards of one or more of the
following: Options and Stock Awards (including Restricted Stock). The Company shall make Awards
directly to the participant.
(b) Award Agreements. Each Award made under the Plan shall be evidenced by an Award Agreement
between the participant and the Company, and no Award shall be valid without any such agreement.
An Award shall be subject to all applicable terms and conditions of the Plan and to any other terms
and conditions which the Committee in its sole discretion deems appropriate for inclusion in the
Award Agreement provided such terms and conditions are not inconsistent with the Plan.
Accordingly, in the event of any conflict between the provisions of the Plan and any Award
Agreement, the provisions of the Plan shall prevail, unless it is expressly specified in such Award
Agreement or other
2
written document that a specific provision of the Plan shall not apply. Each Award Agreement shall
provide, in addition to any terms and conditions required to be provided in such agreement pursuant
to any other provision of this Plan, the following terms:
| (i) | Number of Shares. The number of Shares subject to the Award, if any, which number shall be subject to adjustment in accordance with Section 10 of the Plan. | ||
| (ii) | Price. Where applicable, each Award Agreement shall designate the price, if any, to acquire any Shares underlying the Award, which price shall be payable in a form described in Section 8 of the Plan and subject to adjustment pursuant to Section 10 of the Plan. | ||
| (iii) | Vesting. Each Award Agreement shall specify the dates and/or events on which all or any installment of the Award shall be vested and nonforfeitable. Except as otherwise set forth in the Award Agreement, all unvested Awards shall vest upon a Change in Control. |
(c) No Rights as a Stockholder. A participant, or a transferee of a participant, shall have no
rights as a stockholder with respect to any Shares covered by an Award until Shares are actually
issued in the name of such person (or if Shares will be held in street name, to a broker who will
hold such Shares on behalf of such person).
SECTION 6. OPTIONS.
(a) Generally. The Committee may, in its sole discretion, grant Options. Each Award Agreement
evidencing an Award of Options shall contain the following information, which shall be determined
by the Committee in its sole discretion:
| (i) | Exercise Price. Each Award Agreement shall specify the exercise price per Share subject to the Option; provided, however, that the exercise price per Share shall not be less than 100% of the Fair Market Value of such Share on the date such Option is granted. | ||
| (ii) | Exercisability and Vesting. Each Award Agreement shall specify the dates and/or events when all or any installment of the Option becomes exercisable or vested, as applicable; provided, however, that by a resolution adopted after an Option is granted, the Committee may, on such terms and conditions as it may determine to be appropriate, accelerate the time at which such Option or any portion thereof may be exercised or vested, as applicable. | ||
| (iii) | Term. Each Award Agreement shall state the term of each Option (including the circumstances under which such Option will expire prior to the stated term thereof), which shall not exceed ten (10) years from the date of grant. |
3
(b) Persons Eligible to Exercise Options. During the lifetime of a holder of an Option, only the
holder may exercise the Option (or any portion thereof) granted to him or her; provided, however,
that the holder’s Eligible Representative may exercise the holder’s Option during the period of the
holder’s Disability. After the death of the holder, any exercisable portion of an Option may,
prior to the time when such portion becomes unexercisable under the Plan or the applicable Award
Agreement, be exercised by his or her Eligible Representative.
(c) Manner of Exercise of Options. At any time and from time to time prior to the time when the
Option expires or is otherwise cancelled under the Plan or the applicable Award Agreement, the
exercisable portion of an Option may be exercised in whole or in part; provided, however, that the
Company shall not be required to issue fractional shares of stock and the Committee may, by the
terms of the Option, require any partial exercise to exceed a specified minimum number of Shares.
An exercisable Option, or any exercisable portion thereof, may be exercised solely by delivery to
the Secretary of the Company of all of the following prior to the time when such Option or such
portion expires or is otherwise cancelled under the Plan or the applicable Award Agreement:
| (i) | Notice in writing signed by the holder or his or her Eligible Representative, stating that such Option or portion thereof is exercised, and specifically stating the number of Shares with respect to which the Option or a portion thereof is being exercised; | ||
| (ii) | Full payment of the aggregate exercise price of the Shares with respect to which such Option (or portion thereof) is thereby exercised in accordance with any method prescribed by Section 8 of the Plan; | ||
| (iii) | The payment to the Company of all amounts necessary to satisfy any and all federal, state and local tax withholding requirements arising in connection with the exercise of the Option in accordance with any method prescribed by Sections 8 and 11(d) of the Plan; | ||
| (iv) | Such representations and documents as the Committee deems necessary or advisable to effect compliance with all applicable provisions of the Securities Act and any other federal or state securities laws or regulations. The Committee may, in its sole discretion, also take whatever additional actions it deems appropriate to effect such compliance including, without limitation, placing legends on share certificates and issuing stop-transfer orders to transfer agents and registrars; and | ||
| (v) | In the event that the Option or portion thereof shall be exercised pursuant to Section 6(b) by any person or persons other than the holder, appropriate proof of the right of such person or persons to exercise the Option or portion thereof. |
4
SECTION 7. STOCK AWARDS.
(a) Generally. The Committee may, in its sole discretion, make Stock Awards. Payment in Shares of
all or a portion of any bonus under any other arrangement may be treated by the Committee as a
Stock Award under the Plan. A Stock Award shall not be deemed made until accepted by a participant
in a manner prescribed by the Committee at the time of grant.
(b) Restricted Stock. A Stock Award of Restricted Stock shall be subject to such restrictions on
transferability and other restrictions as the Committee may impose (including, without limitation,
limitations on the right to vote Restricted Stock or the right to receive dividends on Restricted
Stock). These restrictions may lapse separately or in combination at such times, pursuant to such
circumstances, in such installments, or otherwise, as the Committee determines at the time of the
grant of the Award or thereafter.
(c) Certificates for Restricted Stock. Restricted Stock granted pursuant to the Plan may be
evidenced in such manner as the Committee shall determine. If certificates representing Shares of
Restricted Stock are registered in the name of the participant, certificates must bear an
appropriate legend referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, and the Company may, at its discretion, retain physical possession of the
certificates until such time as all applicable restrictions lapse.
(d) No Purchase Price Necessary. In lieu of a purchase price, a Stock Award may be made in
consideration of services previously rendered by a participant to the Company or its Subsidiaries.
SECTION 8. PAYMENT FOR SHARES.
(a) General Rule. The purchase price of Shares issued under the Plan shall be payable in cash or
personal check at the time when such Shares are acquired upon exercise of an Award or otherwise
purchased, except as otherwise provided in this Section.
(b) Surrender of Shares. At the discretion of the participant, all or any part of the purchase
price and any applicable withholding requirements may be paid by surrendering, or attesting to the
ownership of, Shares that are already owned by the participant. Such Shares shall be surrendered
to the Company in good form for transfer and shall be valued at their Fair Market Value on the date
when the Award is exercised. Notwithstanding the foregoing, the participant shall not surrender,
or attest to the ownership of, Shares in payment of any portion of the purchase price (or
withholding) if such action would cause the Company or any Subsidiary to recognize an additional
compensation expense with respect to the applicable Award for financial reporting purposes, unless
the Committee consents thereto.
5
(c) Services Rendered. At the sole discretion of the Committee, Shares may be awarded under the
Plan in consideration of services rendered to the Company or a Subsidiary prior to or after the
Award.
(d) Net Exercise At the discretion of the participant, payment of all or any portion of the
purchase price under any Award subject to the Plan and any applicable withholding requirements may
be made by reducing the number of Shares otherwise deliverable pursuant to the Award by the number
of such Shares having a Fair Market Value equal to the purchase price and any applicable
withholding requirement. Notwithstanding the foregoing, the participant shall not be permitted to
pay any portion of the purchase price (or withholding) in such manner if such action would cause
the Company or any Subsidiary to recognize an additional compensation expense with respect to the
applicable Award for financial reporting purposes unless the Committee consents thereto.
(e) Exercise/Sale. Payment may be made in whole or in part by the delivery (on a form prescribed
by the Company) of an irrevocable direction (i) to a securities broker approved by the Company to
sell Shares and to deliver all or part of the sales proceeds to the Company, or (ii) to pledge
Shares to a securities broker or lender approved by the Company as security for a loan, and to
deliver all or part of the loan proceeds to the Company, in each case in payment of all or part of
the purchase price and any withholding requirements.
(f) Exercise of Discretion. Should the Committee exercise its discretion to permit the participant
to pay the purchase price or any applicable withholding requirement under an Award in whole or in
part in accordance with subsections (b) through (e) through above, it shall not be bound to permit
such alternative method of payment for the remainder of any such Award or with respect to any other
Award or participant under the Plan.
SECTION 9. TERMINATION OF SERVICE.
(a) Termination of Service (except for Cause). Except as otherwise provided in the applicable
Award Agreement or under any employment agreement between the participant and the Company or any
Subsidiary executed after the Chapter 11 Plan Effective Date, in the event a participant’s Service
terminates for any reason other than for Cause, then:
| (i) | Any Options to the extent vested as of the date of such termination shall expire on the earliest of: (i) the expiration of their term, (ii) twelve (12) months following such termination as a result of death or Disability, and (iii) three (3) months following such termination for any other reason. Any Options to the extent unvested as of the date of such termination shall immediately expire and lapse upon such termination. | ||
| (ii) | Any unvested Stock Awards on the date of such termination shall immediately expire and lapse upon such termination; provided, however, that if the vesting of any such Award is conditioned upon satisfying |
6
| performance conditions and the participant has satisfied such conditions except that the participant is not in Service on the payment date due to the termination of the participant’s Service on account of the participant’s death or Disability, such Award shall be payable to the participant or, if applicable, the participant’s Eligible Representative at the regularly scheduled payment date. |
(b) Termination of Service (for Cause). Except as otherwise provided in the applicable Award
Agreement, in the event a participant’s Service is terminated for Cause or Cause exists on the date
a participant’s Service terminates, then:
| (i) | All of the participant’s Options on the date of such termination (whether vested or unvested and including any exercised Options for which Shares have not been delivered to the participant) shall be cancelled and forfeited immediately on the date of such termination, and the Company shall return to the participant the price (if any) paid for such undelivered Shares. Should a participant die or have a Disability at a time when Cause exists but prior to the date the participant’s Service is terminated for Cause, all of the participant’s Options on the date of such termination (whether vested or unvested and including any exercised Options for which Shares have not been delivered to the participant) shall be cancelled and forfeited immediately as of the date of the participant’s death of Disability and the Company shall return to the participant or Eligible Representative, as applicable, the price (if any) paid for such undelivered Shares. | ||
| (ii) | Any unvested Stock Awards on the date of such termination shall immediately expire and lapse upon such termination. |
(c) Leave of Absence. For purposes of this Section 9, Service shall be deemed to continue while a
participant is on a bona fide leave of absence, if such leave is approved by the Company in writing
or if continued crediting of service for this purpose is expressly required by the terms of such
leave or by applicable law (as determined by the Committee).
SECTION 10. ADJUSTMENT OF SHARES.
(a) General. If there shall be a Recapitalization, an adjustment shall be made to each outstanding
Award such that each such Award shall thereafter be exercisable or payable, as the case may be, in
such securities, cash and/or other property as would have been received in respect of Shares
subject to (or referenced by) such Award had such Award been exercised and/or settled in full
immediately prior to such Recapitalization and such an adjustment shall be made successively each
time any such change shall occur. In addition, in the event of any Recapitalization, to prevent
dilution or enlargement of participants’ rights under the Plan, the Committee shall, and will have
the authority to adjust, in a fair and equitable manner, the number and kind of Shares that
may be issued under the Plan, the number and kind of Shares subject to outstanding Awards, and the
7
purchase price applicable to outstanding Awards. Should the vesting of any Award be conditioned
upon the Company’s attainment of performance conditions, the Committee may make such adjustments to
such terms and conditions of such Awards and the criteria therein to recognize unusual and
nonrecurring events affecting the Company or in response to changes in applicable laws, regulations
or accounting principles.
(b) Mergers and Consolidations. In the event that the Company is a party to a merger or
consolidation, outstanding Awards shall be subject to the agreement of merger or consolidation.
Such agreement, without the participants’ consent, may provide for:
| (i) | The continuation or assumption of such outstanding Awards under the Plan by the Company (if it is the surviving corporation) or by the surviving corporation or its parent; | ||
| (ii) | The substitution by the surviving corporation or its parent of stock awards with substantially the same terms for such outstanding Awards; | ||
| (iii) | The acceleration of the vesting of or right to exercise such outstanding Awards immediately prior to or as of the date of the merger or consolidation, and the expiration of such outstanding Awards to the extent not timely exercised or purchased by the date of the merger or consolidation or other date thereafter designated by the Committee; or | ||
| (iv) | The cancellation of all or any portion of such outstanding Awards by a cash payment of the excess, if any, of the fair market value of the Shares subject to such outstanding Awards or portion thereof being canceled over the purchase price with respect to such Awards or portion thereof being canceled. |
SECTION 11. GENERAL TERMS.
(a) Nontransferability of Awards. No Award (other than vested Awards of Shares, which are subject
to Section 11(b) of the Plan) may be transferred, assigned, pledged or hypothecated by any
participant during the participant’s lifetime, whether by operation of law or otherwise, or be made
subject to execution, attachment or similar process, except by beneficiary designation, will or the
laws of descent and distribution. Subject to the limitations contained in this Section 11(a), an
Option or other right to acquire Shares under the Plan, may be exercised during the lifetime of the
participant only by the participant or by the participant’s Eligible Representative. Such Option
or other right shall not be transferable and shall be exercisable only by the participant to whom
such right was granted, except in the case of a transfer by the participant with the prior written
consent of the Committee in its sole discretion.
(b) Restrictions on Transfer of Shares. Any Shares issued under the Plan shall be subject to such
vesting and special forfeiture conditions, repurchase rights, rights of
first offer and other transfer restrictions as the Committee may determine. Such restrictions
8
shall be set forth in the applicable Award Agreement, and shall apply in addition to any
restrictions that may apply to holders of Shares generally.
(c) Securities Law Requirements. Notwithstanding anything contained in the Plan or any Award
Agreement, in the event that the disposition of Shares acquired pursuant to the Plan is not covered
by a then current registration statement under the Securities Act, and is not otherwise exempt from
such registration, such Shares shall be restricted against transfer to the extent required by the
Securities Act or other rules and regulations promulgated thereunder. The Committee may require
any individual receiving Shares pursuant to an Award granted under the Plan, as a condition
precedent to receipt of such Shares, to represent and warrant to the Company in writing that the
Shares acquired by such individual are acquired without a view to any distribution thereof and will
not be sold or transferred other than pursuant to an effective registration thereof under the
Securities Act or pursuant to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any of such Shares shall have an
appropriate legend placed thereon to reflect their status as restricted securities as aforesaid.
(d) Withholding Requirements. As a condition to the receipt or purchase of Shares pursuant to an
Award, a participant shall make such arrangements as the Committee may require for the satisfaction
of any federal, state, local or foreign withholding obligations that may arise in connection with
such receipt or purchase. The participant shall also make such arrangements as the Committee may
require for the satisfaction of any federal, state, local or foreign withholding obligations that
may arise in connection with the disposition of Shares acquired pursuant to an Award.
(e) No Retention Rights. Nothing in the Plan or in any Award granted under the Plan shall confer
upon a participant any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company (or any Subsidiary
employing or retaining the participant) or of the participant, which rights are hereby expressly
reserved by each, to terminate his or her Service at any time and for any reason, with or without
Cause.
(f) Unfunded Plan. Participants shall have no right, title or interest whatsoever in or to any
investments which the Company may make to aid it in meeting its obligations under the Plan.
Nothing contained in the Plan, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind, nor a fiduciary relationship between the Company and any
participant, beneficiary, legal representative or any other person. To the extent that any person
acquires a right to receive payments from the Company under the Plan, such right shall be no
greater than the rights of an unsecured general creditor of the Company. All payments to be made
hereunder shall be paid from the general funds of the Company and no special or separate fund shall
be established and no segregation of assets shall be made to assure payment of such amounts. The
Plan is not intended to be subject to the Employee Retirement Income Security Act of 1974, as
amended.
9
SECTION 12. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, shall become effective on the Chapter 11 Plan
Effective Date. The Plan shall terminate automatically on the day preceding the tenth anniversary
of such date unless earlier terminated pursuant to Section 12(b) below.
(b) Right to Amend or Terminate the Plan. The Committee may amend, suspend or terminate the Plan
at any time and for any reason; provided, however, that any amendment of the Plan (except as
provided in Section 10 of the Plan) which increases the maximum number of Shares issuable to any
person or available for issuance under the Plan in the aggregate, changes the legal entity
authorized to make Awards under this Plan from the Company (or its successor) to any other legal
entity or materially changes the class of persons who are eligible for the grant of Award, shall be
subject to the approval of the Company’s stockholders. Stockholder approval shall not be required
for any other amendment of the Plan.
(c) Effect of Amendment or Termination. Except as otherwise expressly provided under the Plan, any
amendment of the Plan shall not adversely affect in any material respect any participant’s rights
under any Award previously made or granted under the Plan without the participant’s consent. No
Shares shall be issued or sold under the Plan after the termination thereof, except pursuant to an
Award granted prior to such termination. Except as otherwise expressly provided under the Plan,
the termination of the Plan shall not adversely affect in any material respect any participant’s
rights under any Award outstanding on the termination date.
(d) Modification, Extension and Assumption of Awards. Within the limitations of the Plan, the
Committee may modify, extend or assume outstanding Awards or may provide for the cancellation of
outstanding Awards in return for the grant of new Awards for the same or a different number of
Shares and at the same or a different price. The foregoing notwithstanding, no modification of an
Awards shall, without the consent of the participant, materially impair the participant’s rights or
increase the participant’s obligations under such Award or impair the economic value of any such
Award.
SECTION 13. DEFINITIONS.
(a) “Award” shall mean the grant of an Option or Stock Award to a participant under the Plan.
(b) “Award Agreement” shall mean any written agreement, contract or other instrument or document
evidencing an Award, including through electronic medium.
(c) “Board of Directors” shall mean the Board of Directors of the Company, as constituted from time
to time.
(d) “Cause” shall mean (i) participant’s willful, material and irreparable breach of his/her terms
of employment as provided in an employment agreement or otherwise (which
10
remains uncured 5 days after delivery of written notice); (ii) participant’s gross
negligence in the performance or intentional nonperformance (in either case continuing for 10 days
after receipt of written notice of need to cure) of any of participant’s material duties and
responsibilities to the Company or any Subsidiary; (iii) participant’s dishonesty or fraud with
respect to the business, reputation or affairs of the Company or any Subsidiary which materially
and adversely affects the Company or any Subsidiary (monetarily or otherwise); (iv) participant’s
conviction of a felony crime or crime involving moral turpitude; (v) participant’s drug or alcohol
abuse that materially affects participant’s Service or results in a material violation of Company
or Subsidiary policy; or (vi) participant’s material violation of Company or Subsidiary policy,
such policy having been made available to participant by the Company or Subsidiary (which remains
uncured or continues 5 days after delivery of written notice).
(e) “Change in Control” shall mean the first to occur of any of the following events:
| (i) | Any person or any persons acting together which would constitute a “group” for purposes of Section 13(d) of the Exchange Act (other than the Principal Stockholders, Company or any Subsidiary) shall “beneficially own” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, at least fifty percent (50%) of the ordinary voting power of all classes of capital stock of the Company entitled to vote generally in the election of the Board of Directors; | ||
| (ii) | Either (A) “current directors”, as defined below, shall cease for any reason to constitute at least a majority of the members of the Board of Directors (for these purposes, a “current director” means, as of the date of determination, any person who (1) was a member of the Board of Directors on the date of the Chapter 11 Plan Effective Date or (2) was nominated for election or elected to the Board of Directors with the affirmative vote of a majority of the current directors who were members of the Board of Directors at the time of such nomination or election), or (B) at any meeting of the stockholders of the Company called for the purpose of electing directors, a majority of the persons nominated by the Board of Directors for election as directors shall fail to be elected; or | ||
| (iii) | The consummation of a sale, lease, exchange or other disposition (in one transaction or a series of transactions) of all or substantially all of the assets of the Company. |
A transaction shall not constitute a Change in Control if its sole purpose is to change the state
of the Company’s incorporation or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company’s securities immediately before such
transaction.
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(f) “Chapter 11 Plan Effective Date” shall mean the date that the Company’s Joint Plan of
Reorganization under Chapter 11 of the United States Bankruptcy Code, which has been confirmed by
the United States Bankruptcy Court, becomes effective.
(g) “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder.
(h) “Committee” shall mean a Compensation Committee of the Board of Directors, as described in
Section 2(a) of the Plan.
(i) “Company” shall mean Integrated Electrical Services, Inc., a Delaware corporation, and its
successors and assigns.
(j) “Consultant” shall mean a person who performs bona fide services for the Company or a
Subsidiary as a consultant or advisor, excluding Employees and Directors.
(k) “Director” shall mean a member of the Board of Directors or the board of directors of a
Subsidiary who is not an Employee.
(l) “Disability” shall mean with respect to a participant, (i) “disability” as defined in any
employment agreement between the participant and the Company (or, if applicable, the Subsidiary
employing the participant) or (ii) if the participant is not a party to an employment agreement or
“disability” is not defined therein, the participant’s inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment, as
determined by the Committee in its sole discretion, unless another meaning is specifically provided
in the participant’s Award Agreement.
(m) “Eligible Representative” for a participant shall mean such participant’s personal
representative or such other person as is empowered under the deceased participant’s will or the
then applicable laws of descent and distribution to represent the participant under the Plan.
(n) “Employee” shall mean any individual who is a common-law employee of the Company or a
Subsidiary.
(o) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.
(p) “Fair Market Value” of a Share as of a given date shall be:
| (i) | If the Shares are listed on any established stock exchange or a national market system, including, without limitation, The New York Stock Exchange, The Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing sales price for a share of such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system for the date of grant (or if not traded on such date, last market trading day prior to such date), |
12
| as reported in The Wall Street Journal or such other source as the Committee deems reliable; |
| (ii) | If the Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, its Fair Market Value shall be the mean between the high bid and low asked prices for a Share for the date of grant (or if not traded on such date, last market trading day prior to such date); or | ||
| (iii) | In the absence of an established market for the Shares, the Fair Market Value thereof shall be determined in good faith by the Committee, in accordance with the principles set forth in Section 409A of the Code. Such determination shall be conclusive and binding on all persons. |
(q) “Option” shall mean a stock option not described in Section 422(b) of the Code granted pursuant
to Section 6 the Plan entitling the holder to acquire Shares upon exercise.
(r) “Plan” shall mean this Integrated Electrical Services, Inc. 2006 Equity Incentive Plan, as may
be amended from time to time.
(s) “Principal Stockholders” shall mean Fidelity Management & Research Co., Southpoint Capital
Advisors LP, Tontine Capital Partners L.P. and their affiliates.
(t) “Recapitalization” shall mean an event or series of events affecting the capital structure of
the Company such as a stock split, reverse stock split, stock dividend, distribution,
recapitalization, combination or reclassification of the Company’s securities.
(u) “Restricted Stock” shall mean Shares granted pursuant to Section 7 of the Plan which are
subject to restrictions on transfer or forfeiture.
(v) “Securities Act” shall mean the Securities Act of 1933, as amended from time to time.
(w) “Service” shall mean service as an Employee, Director or Consultant.
(x) “Share” shall mean one share of common stock of the Company, with a par value of [$0.01 per
share], as adjusted in accordance with Section 10 of the Plan.
(y) “Stock Award” shall mean the grant or sale of Shares pursuant to Section 7 of the Plan.
(z) “Subsidiary” shall mean any corporation or other entity (other than the Company) in an unbroken
chain of corporations or other entities beginning with the Company, if each of the corporations or
other entities other than the last one in the unbroken chain owns stock or equity interests
possessing fifty percent (50%) or more of
the total combined voting power of all classes of stock or equity interests in one of the other
corporations or
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other entities in such chain. A corporation or other entity that attains the
status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary
commencing as of such date.
SECTION 14. MISCELLANEOUS.
(a) Choice of Law. The Plan shall be governed by, and construed in accordance with, the laws of
the State of Delaware, as such laws are applied to contracts entered into and performed in such
State.
(b) Execution. To record the adoption of the Plan by the Board of Directors, the Company has
caused its authorized officer to execute the same.
| INTEGRATED ELECTRICAL SERVICES, INC. |
||||
| By: | /s/ Curt L. Warnock | |||
| Curt L. Warnock | ||||
| Senior Vice President, General Counsel and Corporate Secretary | ||||
14
May 12, 2006
| Vinson & Elkins LLP | ||
| 2001 Ross Ave., Suite 3700 | ||
| Dallas, Texas 75201 |
Integrated Electrical Services, Inc.
1800 West Loop South, Suite 500
Houston, Texas 77027
1800 West Loop South, Suite 500
Houston, Texas 77027
Ladies and Gentlemen:
We have acted as counsel for Integrated Electrical Services, Inc., a Delaware corporation (the
“Company”), with respect to certain legal matters in connection with the registration by the
Company under the Securities Act of 1933 (the “Securities Act”), of the offer and sale of up to
2,002,542 shares of Common Stock, par value $0.01 per share (the “Shares”) pursuant to the 2006
Equity-Based Compensation Plan as amended (the “Plan”).
In connection herewith, we have examined or are familiar with the Plan, the Restated
Certificate of Incorporation of the Company as in effect on the date hereof, the Bylaws of the
Company as in effect on the date hereof, the corporate proceedings with respect to the approval of
the Plan, and the Registration Statement on Form S-8 filed in connection with the registration of
the Shares (the “Registration Statement”), and such other certificates, instruments and documents
as we have considered necessary for purposes of this opinion letter.
Based upon the foregoing and subject to the limitations set forth herein, we are of the
opinion that the Shares have been duly authorized and, when the Shares are issued in accordance
with the terms of the Plan and instruments executed pursuant to the Plan which govern the awards to
which the Shares relate, will be validly issued and fully paid and non-assessable.
The foregoing opinion is limited to the laws of the United States of America, the State of
Texas, and to the General Corporation Law of the State of Delaware, as interpreted by federal
courts and the courts of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement.
In giving this consent, we do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act and the rules and regulations thereunder.
| Very truly yours, | ||
| /s/ VINSON & ELKINS LLP |
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the Integrated Electrical Services, Inc. 2006 Equity
Incentive Plan of our reports dated December 19, 2005, with respect to the
consolidated financial statements of Integrated Electrical Services,
Inc.,
Integrated Electrical Services, Inc. management’s assessment of the effectiveness
of internal control over financial reporting, and the effectiveness of internal
control over financial reporting of Integrated Electrical Services, Inc., included in its Annual Report (Form 10-K) for the year ended
September 30, 2005 filed
with the Securities and Exchange Commission.
/s/ Ernst
& Young LLP
Houston, Texas
May 12, 2006
May 12, 2006