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EXHIBIT 10.6
AGREEMENT
For good and valuable consideration, receipt and sufficiency of which
is hereby acknowledged, the undersigned hereby agrees as follows:
1. TRANSFER RESTRICTIONS.
1.1 TRANSFER RESTRICTIONS. Unless otherwise agreed by Integrated
Electrical Services, Inc. (the "Company"), except for transfers to immediate
family members who agree to be bound by the restrictions set forth herein (or
trusts for the benefit of the undersigned or family members, or trusts in which
the undersigned is both the grantor and the beneficiary, the trustees of which
so agree), for a period of two years from the date of issuance, except pursuant
to Section 3 hereof, the undersigned shall not sell, assign, exchange,
transfer, appoint, or otherwise dispose of any shares of common stock of the
Company sold and issued by the Company or transferred to the undersigned prior
to the date of this Agreement (the "Restricted Stock"). The certificates
evidencing the Restricted Stock will bear a legend substantially in the form
set forth below and containing such other information as the Company may deem
necessary or appropriate.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED,
EXCHANGED, TRANSFERRED, DISTRIBUTED, APPOINTED OR OTHERWISE DISPOSED OF WITHOUT
THE WRITTEN CONSENT OF THE COMPANY, AND THE ISSUER SHALL NOT BE REQUIRED TO
GIVE EFFECT TO ANY ATTEMPTED SALE, ASSIGNMENT, EXCHANGE, TRANSFER,
DISTRIBUTION, APPOINTMENT OR OTHER DISPOSITION PRIOR TO SEPTEMBER 4, 1999.
UPON THE WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE ISSUER AGREES
TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH THE TRANSFER
AGENT) AFTER THE DATE SPECIFIED ABOVE.
2. FEDERAL SECURITIES ACT REPRESENTATIONS
2.1 COMPLIANCE WITH LAW. The undersigned acknowledges that the
shares of Restricted Stock have not been and will not be registered under the
Securities Act of 1933, as amended (the "1933 Act") (except as provided in
Section 3 hereof) and therefore may not be resold without compliance with the
1933 Act. The Restricted Stock was acquired solely for the undersigned's own
respective account, for investment purposes only, and with no present intention
of distributing, selling or otherwise disposing of it in connection with a
distribution. The undersigned covenants, warrants and represents that none of
the Restricted Stock will be offered, sold, assigned, pledged, hypothecated,
transferred or otherwise disposed of except after full compliance with all of
the applicable provisions of the 1933 Act and the rules and regulations of the
SEC. All the Restricted Stock shall bear the following legend in addition to
the legend required under Section 1 of this Agreement:
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THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IF THE HOLDER
HEREOF COMPLIES WITH THE ACT AND APPLICABLE SECURITIES LAW.
3. REGISTRATION RIGHTS
3.1 PIGGYBACK REGISTRATION RIGHTS. At any time following the date
hereof, whenever the Company proposes to register any common stock of the
Company for its own or others account under the 1933 Act for a public offering,
other than (i) any shelf or other registration of shares to be used as
consideration for acquisitions of additional businesses by the Company and (ii)
registrations relating to employee benefit plans, the Company shall give the
undersigned prompt written notice of its intent to do so. Upon the written
request of the undersigned given within 10 days after receipt of such notice,
the Company shall cause to be included in such registration all of the
Restricted Stock (including any stock issued as or issuable upon the conversion
or exchange of any convertible security, warrant, right or other security which
is issued by the Company as a stock split, dividend or other distribution with
respect to, or in exchange for, or in replacement of such common stock) which
the undersigned requests, other than shares of common stock of the Company
which may be sold under Rule 144(k) (or any similar or successor provision)
promulgated under the 1933 Act, and other than shares of common stock of the
Company that have been theretofore sold by the undersigned in accordance with
the 1933 Act. If the Company is advised in writing in good faith by any
managing underwriter of an underwritten offering of the securities being
offered pursuant to any registration statement under this section that the
number of shares to be sold by persons other than the Company is greater than
the number of such shares which can be offered without adversely affecting the
success of the offering, the Company may reduce pro rata (among the undersigned
and all other selling security holders in the offering) the number of shares
offered for the accounts of such persons (based upon the number of shares held
by such person) to a number deemed satisfactory by such managing underwriter.
If the undersigned disapproves of the terms of the underwriting, he may elect
to withdraw therefrom by written notice to the Company and the managing
underwriter. The undersigned's shares of Restricted Stock so withdrawn shall
also be withdrawn from registration.
3.2 REGISTRATION PROCEDURES. Whenever the Company is required to
register shares of common stock pursuant to Section 3, the Company will, as
expeditiously as possible:
(i) Prepare and file with the SEC a registration
statement with respect to such shares and use its best efforts to
cause such registration statement to become effective (provided that
before filing a registration statement or prospectus or any amendments
or supplements or term sheets thereto, the Company will furnish a
representative of the undersigned with copies of all such documents
proposed to be filed) as promptly as practical;
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(ii) Notify the undersigned of any stop order issued or
threatened by the SEC and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(iii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 120 days, cause the
prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 474 under the 1933
Act; and comply with the provisions of the 1933 Act applicable to it
with respect to the disposition of all securities covered by such
registration statement during the applicable period in accordance with
the intended methods of disposition by the sellers thereof set forth
in such registration statement or supplement to the prospectus;
(iv) Furnish to the undersigned such number of copies of
such registration statement, each amendment and supplement thereto and
the prospectus included in such registration statement (including each
preliminary prospectus and any term sheet associated therewith), and
such other documents as the undersigned may reasonably request in
order to facilitate the disposition of the relevant shares;
(v) Make "generally available to its security holders"
(within the meaning of Rule 158) an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder no
later than 90 days after the end of the 12-month period beginning with
the first day of the Company's first fiscal quarter commencing after
the effective date of the registration statement;
(vi) Make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the registration
statement at the earliest possible moment;
(vii) If requested by the managing underwriter or
underwriters, if any, or any participating selling stockholder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters
or any participating selling stockholder, as the case may be,
reasonably requests to be included therein, including, without
limitation, information with respect to the number of shares of common
stock of the Company being sold by participating selling stockholders
to any underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any
other terms of an underwritten offering of the shares of common stock
to be sold in such offering, and promptly make all required filings of
such prospectus by supplement or post-effective amendment;
(viii) Make available for inspection by participating
selling stockholders, any underwriter participating in any disposition
pursuant to such registration statement, and the counsel retained by
the participating selling stockholders, counsel for the underwriters
and
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any accountant or other agent retained by participating selling
stockholders or any such underwriter (collectively, the "Inspectors"),
all financial and other records, pertinent corporate documents and
properties of the Company (the "Records"), as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Inspectors in connection with such registration statement; provided,
that records which the Company determines, in good faith, to be
confidential and which the Company notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction after delivery of
sufficient notice to the Company to enable the Company to contest such
subpoena or order;
(ix) Take all other steps reasonably necessary to effect
the registration of the shares of common stock of the Company
contemplated hereby;
(x) Use its best efforts to register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the undersigned, and to keep such registration
or qualification effective during the period such registration
statement is required to be kept effective, provided that the Company
shall not be required to become subject to taxation, to qualify
generally to do business or to file a general consent to service of
process in any such states or jurisdictions;
(xi) Cause all such shares of common stock of the Company
to be listed or included not later than the date of the first sale of
shares of common stock of the Company under such registration
statement on any securities exchanges or trading systems on which
similar securities issued by the Company are then listed or included;
and
(xii) Notify the undersigned at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act within
the period that the Company is required to keep the registration
statement effective of the happening of any event as a result of which
the prospectus included in such registration statement (as then in
effect), together with any associated term sheet, contains an untrue
statement of a material fact or omits to state any fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and, at the
request of the undersigned, the Company promptly will prepare a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of the covered shares, such prospectus
will not contain an untrue statement of material fact or omit to state
any fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were made)
not misleading.
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All expenses incurred in connection with the registration under this
Article 3 and compliance with securities and blue sky laws (including all
registration, filing, listing, escrow agent, qualification, legal, printer and
accounting fees, but excluding underwriting commissions and discounts), shall
be borne by the Company.
3.3 INDEMNIFICATION.
(a) In connection with any registration under Section
3.1, the Company shall indemnify, to the extent permitted by law, the
undersigned (an "Indemnified Party") against all losses, claims, damages,
liabilities and expenses arising out of or resulting from any untrue or alleged
untrue statement of material fact contained in any registration statement,
prospectus or preliminary prospectus or associated term sheet or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading except
insofar as the same are caused by or contained in or omitted from any
information furnished in writing to the Company by such Indemnified Party
expressly for use therein or by any Indemnified Parties' failure to deliver a
copy of the registration statement or prospectus or any amendment or
supplements thereto after the Company has furnished such Indemnified Party with
a sufficient number of copies of the same.
(b) In connection with any registration under Section
3.1, the undersigned shall furnish to the Company in writing such information
concerning the undersigned and his proposed offering of shares as is reasonably
requested by the Company for use in any such registration statement or
prospectus and will indemnify, to the extent permitted by law, the Company, its
directors and officers and each person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of a material
fact or any omission or alleged omission to state therein a material fact
required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, but only to the extent that such untrue or alleged
untrue statement or omission or alleged omission is contained in or omitted
from information so furnished in writing to the Company by the underwriter
expressly for use in the registration statement. Notwithstanding the
foregoing, the liability of the undersigned under this Section 3.3 shall be
limited to an amount equal to the net proceeds actually received by the
undersigned from the sale of the relevant shares covered by the registration
statement.
(c) Any person entitled to indemnification hereunder will
(i) give prompt notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified parties'
reasonable judgment, a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. Any failure to give prompt notice shall
deprive a party of its right to indemnification hereunder only to the extent
that such failure shall have adversely affected the indemnifying party. If the
defense of any claim is assumed, the indemnifying party will not be subject to
any liability for any settlement
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made without its consent (but such consent shall not be unreasonably withheld).
An indemnifying party that is not entitled or elects not, to assume the defense
of a claim, will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party, a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
3.4 UNDERWRITING AGREEMENT. In connection with each registration
pursuant to Section 3.1 covering an underwritten registered offering, the
undersigned agrees to enter into a written agreement with the managing
underwriters in such form and containing such provisions as are customary in
the securities business for such an arrangement between such managing
underwriters and companies of the Company's size and investment stature,
including indemnification; provided, however, that the undersigned shall be
exempt and excluded from any indemnification of the managing underwriters other
than with respect to information provided by the undersigned to the Company or
the managing underwriters.
3.5 TRANSFER OF RIGHTS. The right to cause the Company to
register shares of common stock under this Agreement may be assigned to a
transferee or assignee of the undersigned to the extent that such transferee or
assignee is a member of the immediate family of the undersigned, or a trust or
partnership for the benefit of any such persons.
3.6 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the SEC that may permit the sale
of common stock of the Company to the public without registration, the Company
agrees to use its reasonable efforts to:
(i) make and keep public information regarding the
Company available as those terms are understood and defined in Rule
144 under the 1933 Act for a period of six years beginning 90 days
following the effective date of the Registration Statement on Form S-1
(No. 333-38715) of the Company (the "Registration Statement");
(ii) file with the SEC in a timely manner all reports and
other documents required of the Company under the 1933 Act and the
Securities and Exchange Act of 1934, as amended (the "1934 Act"), at
any time after it has become subject to such reporting requirements;
and
(iii) so long as the undersigned owns any restricted common
stock of the Company, furnish to the undersigned forthwith upon
written request a written statement by the Company as to its
compliance with the current public information requirements of Rule
144 (at any time from and after 90 days following the effective date
of the Registration Statement, and of the 1933 Act and the 1934 Act
(any time after it has become subject to such reporting requirements),
a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents so filed as the undersigned may
reasonably
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request in availing himself of any rule or regulation of the SEC
allowing the undersigned to sell any such shares without registration.
4. GENERAL
4.1 SUCCESSORS AND ASSIGNS. This Agreement and the rights of the
parties hereunder may not be assigned (except by operation of law) and shall be
binding upon and shall inure to the benefit of the parties hereto, the
successors of the Company, and the heirs and legal representatives of the
undersigned.
4.2 NOTICES. All notices or communication required or permitted
hereunder shall be in writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the
same in person to an officer or agent of such party.
(a) If to the Company addressed to it at:
Integrated Electrical Services, Inc.
0000 Xxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
(b) If to the undersigned, addressed to him at:
___________________________________________
___________________________________________
___________________________________________
or to such other address or counsel as any party hereto shall specify pursuant
to this section from time to time.
4.3 GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Texas, excluding any conflicts of
law, rule or principle that might refer same to the laws of another
jurisdiction.
4.4 REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. No provision of this Agreement shall be interpreted or construed
against any party solely because that party or its legal representative drafted
such provision.
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The parties hereto have entered into and executed this Agreement as of
January 30, 1998.
By:
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Name: C. Xxxxx Xxxxxx
INTEGRATED ELECTRICAL SERVICES, INC.
By:
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Name:
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Title:
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SCHEDULE A
PARTIES TO FORM OF AGREEMENT
Party Expiration Date
----- ---------------
C. Xxxxx Xxxxxx September 4, 1999
Xxxxx Xxxxxx Xxxxxx Trust September 4, 1999
Worth Xxxxx Xxxxxx Trust September 4, 1999
D. Xxxxxx Xxxxxxxx September 4, 1999
Xxx Xxxxxxx September 4, 1999
Xxxxx Xxxxx September 4, 1999
Xxx Xxxxxxx September 4, 1999
Xxx X. Xxxx September 4, 1999
Xxxx X. Xxxxxxxx September 4, 1999
Xxxx X. Xxxxxxxxx September 4, 1999
J. Xxxx Xxxxxxx October 16, 1999
