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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 13, 1999.
REGISTRATION NO. 333-50031
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE
AMENDMENT NO. 5
TO FORM S-1
ON
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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INTEGRATED ELECTRICAL SERVICES, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 76-0542208
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
515 POST OAK BOULEVARD, SUITE 450
HOUSTON, TEXAS 77027-9408
(713) 860-1500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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JOHN F. WOMBWELL
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
515 POST OAK BOULEVARD, SUITE 450
HOUSTON, TEXAS 77027-9408
(713) 860-1500
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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copy to:
DAVID P. OELMAN
ANDREWS & KURTH L.L.P.
600 TRAVIS, SUITE 4200
HOUSTON, TEXAS 77002
(713) 220-4200
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
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If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to rule 415 under the Securities Act of
1933, check the following box. [X]
If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
THIS REGISTRATION STATEMENT CONTAINS A COMBINED PROSPECTUS PURSUANT TO RULE
429 UNDER THE SECURITIES ACT, WHICH RELATES TO THE COMPANY'S EARLIER
REGISTRATION STATEMENT NO. 333-45479.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (a) of section 145 of the General Corporation Law of the State
of Delaware empowers a corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he 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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
made to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in the defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; that indemnification provided for by Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of such person's heirs, executors and administrators; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation 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 liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a certificate of incorporation may contain a provision eliminating
or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director
provided that such provision shall not eliminate or limit the liability of a
director (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 Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
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Article Eighth of the Company's Amended and Restated Certificate of
Incorporation states that:
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty by such director as a director; provided, however, that this Article Eighth
shall not eliminate or limit the liability of a director to the extent provided
by applicable law (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. No amendment to or repeal of this Article
Eighth shall apply to, or have any effect on, the liability or alleged liability
of any director of the Corporation for or with respect to any acts or omissions
of such director occurring prior to such amendment or repeal. 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.
In addition, Article VI of the Company's Bylaws further provides that the
Company shall indemnify its officers, directors and employees to the fullest
extent permitted by law.
The Company has entered into indemnification agreements with each of its
executive officers and directors.
These limitations on liability would apply to violations of the federal
securities laws. However, the registrant has been advised that in the opinion of
the SEC, indemnification for liabilities under the Securities Act of 1933 is
against public policy and therefore unenforceable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
3.1 -- Amended and Restated Certificate of Incorporation as
amended. (Incorporated by reference to Exhibit 3.1 to the
Registration Statement on Form S-1 (File No. 333-38715)
of the Company)
3.2 -- Bylaws, as amended. (Incorporated by reference to Exhibit
3.2 to the Annual Report on Form 10-K for the year ended
September 30, 1998 of the Company)
4.1 -- Specimen Common Stock Certificate. (Incorporated by
reference to Exhibit 4.1 to the Registration Statement on
Form S-1 (File No. 333-38715) of the Company)
4.2 -- Indenture, dated January 28, 1999, by and among
Integrated Electrical Services, Inc. and the subsidiaries
named therein and State Street Bank and Trust Company
covering up to $150,000,000 9 3/8% Senior Subordinated
Notes due 2009 (Incorporated by reference to Exhibit 4.2
to the Post-Effective Amendment No. 3 to Form S-1 on Form
S-4 (File No. 333-50031) of the Company)
5.1 -- Opinion of John F. Wombwell (Incorporated by reference to
Exhibit 5.1 to the Registration Statement on Form S-1
(File No. 333-50031) of the Company)
10.1 -- Form of Employment Agreement (Incorporated by reference
to Exhibit 10.1 to the Registration Statement on Form S-1
(File No. 333-38715) of the Company)
10.2 -- Form of Officer and Director Indemnification Agreement.
(Incorporated by reference to Exhibit 10.2 to the
Registration Statement on Form S-1 (File No. 333-38715)
of the Company)
10.3 -- Integrated Electrical Services, Inc. 1997 Stock Plan.
(Incorporated by reference to Exhibit 10.3 to the
Registration Statement on Form S-1 (File No. 333-38715)
of the Company)
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10.4 -- Integrated Electrical Services, Inc. 1997 Directors Stock Plan. (Incorporated by
reference to Exhibit 10.4 to the Registration Statement on Form S-1 (File No.
333-38715) of the Company)
10.5 -- Credit Agreement dated July 30, 1998, among the Company, the Financial Institutions
named therein and NationsBank of Texas, N.A., including Guaranty, Pledge Agreement,
Security Agreement, form of promissory note, and form of swing line note. (Incorporated
by reference to Exhibit 10.5 to Post-Effective Amendment No. 1 to the Registration
Statement on Form S-1 (File No. 333-50031) of the Company)
10.6 -- Amendment No. 1 dated September 30, 1998, to the Credit Agreement dated July 30, 1998,
among the Company, the Financial Institutions named therein and NationsBank of Texas,
N.A. (Incorporated by reference to Exhibit 10.6 to the Company's Annual Report on Form
10-K/A for the year ended September 30, 1998)
10.7 -- Amendment No. 2 dated January 18, 1999, to the Credit Agreement dated July 30, 1998,
among the Company, the Financial Institutions named therein and NationsBank of Texas,
N.A. (Incorporated by reference to Exhibit 10.7 to Post-Effective Amendment No. 2 to
the Registration Statement on Form S-1 (File No. 333-50031) of the Company)
10.8 -- Form of Lock-up Agreement entered into by the Company and the stockholders set forth on
Schedule A thereto. (Incorporated by reference to Exhibit 10.6 to the Registration
Statement on Form S-1 (File No. 333-38715) of the Company)
23.1 -- Consent of John F. Wombwell (included in Exhibit 5.1)
23.2 -- Consent of Arthur Andersen LLP
23.3 -- Consent of Hertzbach & Company, P.A.
23.4 -- Consent of KPMG Peat Marwick LLP
23.5 -- Consent of Peck & Kopacek, P.C.
23.6 -- Consent of Arthur Andersen LLP
ITEM 22. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
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The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. 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 20% 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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.
(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter within
the meaning of Rule 145(c), the issuer undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other Items
of the applicable form.
(6) That every prospectus (i) that is filed pursuant to paragraph (5)
immediately preceding, or (ii) that purports to meet the requirements of
section 10(a)(3) of the Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to
the registration statement and will not be used until such amendment is
effective, and that, for purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Items 4, 10(b), 11, or 13 of this
Form, within one business day of receipt of such request, and to send the
incorporated documents by first class main or other equally prompt means.
This includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of responding
to the request.
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(8) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved therein,
that was not the subject of and included in the registration statement when
it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post Effective on Form S-4 to its Registration Statement on
Form S-1 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on April 9, 1999.
INTEGRATED ELECTRICAL SERVICE, INC.
By: /s/ JIM P. WISE*
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Jim P. Wise
President and Chief Executive
Officer
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 dates indicated.
SIGNATURE TITLE DATE
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/s/ JIM P. WISE* President, Chief Executive April 9, 1999
- ----------------------------------------------------- Officer and Director (Principal
Jim P. Wise Executive Officer)
/s/ STANLEY H. FLORANCE Senior Vice President and Chief April 12, 1999
- ----------------------------------------------------- Financial Officer (Principal
Stanley H. Florance Financial Officer)
/s/ J. PAUL WITHROW* Vice President and Chief April 9, 1999
- ----------------------------------------------------- Accounting Officer (Principal
J. Paul Withrow Accounting Officer)
/s/ C. BYRON SNYDER* Chairman of the Board of April 9, 1999
- ----------------------------------------------------- Directors
C. Byron Snyder
/s/ JON POLLOCK* Vice Chairman of the Board of April 9, 1999
- ----------------------------------------------------- Directors
Jon Pollock
Director
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Donald Paul Hodel
/s/ JERRY M. MILLS* Director April 9, 1999
- -----------------------------------------------------
Jerry M. Mills
/s/ BEN L. MUELLER* Director April 9, 1999
- -----------------------------------------------------
Ben L. Mueller
/s/ RICHARD MUTH* Director April 9, 1999
- -----------------------------------------------------
Richard Muth
/s/ ALAN R. SIELBECK* Director April 9, 1999
- -----------------------------------------------------
Alan R. Seilbeck
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SIGNATURE TITLE DATE
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/s/ ROBERT STALVEY* Director April 9, 1999
- -----------------------------------------------------
Robert Stalvey
/s/ RICHARD L. TUCKER* Director April 9, 1999
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Richard L. Tucker
/s/ BOB WEIK* Director April 9, 1999
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Bob Weik
*By: /s/ JOHN F. WOMBWELL
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John F. Wombwell
Pursuant to a power-of-attorney
filed
with the Registration Statement
on
Form S-1 (333-50031) on
April 14, 1998.
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