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As filed with the Securities and Exchange Commission on May 2, 1997.
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ATC COMMUNICATIONS GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2050538
------------------------------- ------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5950 BERKSHIRE LANE, SUITE 1650
DALLAS, TEXAS 75225
(214) 361-9870
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
-------------------------
ATC COMMUNICATIONS GROUP, INC.
1996 STOCK OPTION AND RESTRICTED STOCK PLAN
AND
ATC COMMUNICATIONS GROUP, INC.
1996 STOCK EXCHANGE RIGHTS PLAN
(Full titles of the Plans)
-------------------------
ARTHUR CHAVOYA
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ATC COMMUNICATIONS GROUP, INC.
5950 BERKSHIRE LANE, SUITE 1650
DALLAS, TEXAS 75225
(214) 361-9870
(Name, address, and telephone number, including area code,
of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
TITLE OF EACH AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 2,518,000 $3.25-$16.1875 $15,946,000 $4,832.12
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) 2,000,000 shares are being registered under the ATC Communications Group,
Inc. 1996 Stock Option and Restricted Stock Plan, and 518,000 shares are
being registered under the ATC Communications Group, Inc. 1996 Stock
Exchange Rights Plan. Pursuant to Rule 416 under the Securities Act of
1933, as amended, this registration statement also covers an indeterminate
additional amount of shares of Common Stock to be offered or sold pursuant
to the antidilution provisions of the plans.
(2) Calculated based on 600,000 options issued under the Company's 1996 Stock
Option and Restricted Stock Plan at $16.1875 per share, and the remaining
1,918,000 shares of ATC Communications Group, Inc. common stock at a price
per share calculated on the basis of the closing sales price per share of
ATC Communications Group, Inc., as reported on NASDAQ on April 28, 1997,
all in accordance with Rule 457(h) promulgated under the Securities Act of
1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents, which have been previously filed with the
Securities and Exchange Commission (the "Commission") by ATC Communications
Group, Inc. (the "Company"), are incorporated by reference in this Registration
Statement:
(a) Annual Report on Form 10-K for the year ended June 30, 1996,
as amended by the Company's Annual Report on Form 10-KA, which contains audited
financial statements of the Company for the fiscal year ended June 30, 1996
(the "1995 Form 10-K").
(b) All reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since June 30, 1996.
(c) The description of the Company's common stock, par value $.01
per share (the "Common Stock"), contained in the Company's registration
statement on Form 8-A, dated November 1985, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement, which indicate that
all of the shares of Common Stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
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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
incorporated or 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.
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 Certificate of Incorporation provides that the Company
shall indemnify any director, officer or employee, or former director, officer
or employee, of the Company, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement to the fullest extent permitted
by Section 145 of the Delaware General Corporation Law (the "DGCL"). DGCL
Section 145 provides, among other things, that the Company may 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 (other than an
action by or in the right of the Company) by reason of the fact that he is or
was a director, officer, agent or employee of the Company or who serves or
served at the Company's request as a director, officer, agent, employee,
partner or trustee of another corporation or of a partnership, joint venture,
trust or other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding. The power to
indemnify applies (a) if such person is successful on the merits or otherwise
in defense of any action, suit or proceeding, or (b) if such person acted in
good faith and in a manner he reasonably believed to be in the best interest,
or not opposed to the best interest, of the Company or corporation and with
respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The power to indemnify applies to actions
brought by or in the right of the corporation as well, but only to the extent
of defense expenses (including attorneys' fees but excluding amounts paid in
settlement) actually and reasonably incurred and not to any satisfaction of a
judgment or settlement of the claim itself, and with the further limitation
that in such actions no indemnification shall be made in the event of any
adjudication of negligence or misconduct in the performance of his duties to
the Company, unless the court believes that in light of all the circumstances
indemnification should apply.
The Company's Bylaws further provide that a determination of the
minimum standard required for indemnification may be made by either (a) a
majority of the directors of the Company (whether or not a quorum) who were not
parties to the action, (b) independent legal counsel in a written opinion, or
(c) the Company's stockholders. The Company may advance expenses to the
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potential indemnitee only if the Company's Board of Directors so authorizes and
if the potential indemnitee undertakes in writing to repay the expenses if it
is subsequently determined that he is not entitled to indemnification. The
indemnification provisions contained in the Company's Certificate of
Incorporation and Bylaws are not exclusive of any other rights to which a
person may be entitled by law, agreement, vote of stockholders or disinterested
directors or otherwise.
Insofar as indemnification by the Company for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act"), may be
permitted to directors, officers or persons controlling the Company pursuant to
the foregoing provisions, the Company has been informed that in the opinion of
the Commission such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits of this Registration Statement, which Index is incorporated herein by
reference.
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;
(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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
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(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 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 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 by the registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions described in
Item 6, or otherwise, the registrant has been advised that in the opinion of
the 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 by the registrant 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.
[Remainder of page intentionally left blank]
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Dallas, State of Texas, on April 30,
1997.
ATC COMMUNICATIONS GROUP, INC.
By: /s/ Arthur Chavoya
--------------------------------------
Arthur Chavoya, President, Chief
Executive Officer and Director
By: /s/ Matthew S. Waller
--------------------------------------
Matthew S. Waller
Chief Financial Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Arthur Chavoya and Michael G. Santry, his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent or his substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Date
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<S> <C>
/s/ Arthur Chavoya April 30, 1997
- -----------------------------------
Arthur Chavoya
President, Chief Executive Officer and Director
/s/ Michael G. Santry April 30, 1997
- -----------------------------------
Michael G. Santry
Director
/s/ Jerry L. Sims, Jr. April 30, 1997
- -------------------------------------
Jerry L. Sims, Jr.
Controller and Secretary
/s/ Patrick V. Stark April 30, 1997
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Patrick V. Stark
Director
/ /s/ J. Michael Allred April 30, 1997
- -------------------------------------
J. Michael Allred
Director
/s/ J. Frank Mermoud April 30, 1997
- ----------------------------------
J. Frank Mermoud
Director
/s/ Darryl Pounds April 30, 1997
- ------------------------------------
Darryl Pounds
Director
/s/ David Malcolm April 30, 1997
- -----------------------------------
David Malcolm
Director
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- --------------------------------------------------------------------------------
<S> <C>
4.1 ATC Communications Group, Inc. 1996 Stock Option and
Restricted Stock Plan
4.2 Form of ATC Communications Group, Inc. Stock Option
Agreement
4.3 Form of ATC Communications Group, Inc. Restricted Stock
Agreement
4.4* ATC Communications Group, Inc. 1996 Stock Exchange Rights
Plan
4.5* Form of ATC Communications Group, Inc. Exchange Rights
Agreement
5.1* Opinion of Hughes & Luce, L.L.P.
23.1* Consent of Hughes & Luce, L.L.P. (Contained in Exhibit 5.1)
23.2* Consent of Price Waterhouse LLP
24.1* Power of Attorney (Contained at pp. 7-8)
</TABLE>
* Filed herewith
<PAGE> 1
EXHIBIT 4.4
ATC COMMUNICATIONS GROUP, INC.
1996 STOCK EXCHANGE RIGHTS PLAN
1. PURPOSE OF THE PLAN
The ATC Communications Group, Inc. ("ATC" or the "Company") 1996 Stock
Exchange Rights Plan ("Plan") is intended to promote the interests of ATC by
providing liquidity for stock option holders of Advanced Telemarketing
Corporation ("Subsidiary") who receive shares of Subsidiary stock pursuant to
Subsidiary stock options. The Plan shall constitute a "plan of reorganization"
under Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended,
and all exchanges of Subsidiary stock for ATC stock effected hereunder shall be
effected in accordance therewith.
2. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Company's Board of
Directors ("Board") or, to the extent provided by the Board, a committee
("Committee") appointed by the Board. Members of the Committee shall serve for
such term as the Board may determine and shall be subject to removal by the
Board at any time. No person serving as a member of the Board or the Committee
shall act on any matter relating solely to such person's own interests under
the Plan. For purposes of the Plan, the term "Administrator" shall mean the
Board, or if the Board delegates responsibility for any matter to the
Committee, the Committee.
(b) The Administrator shall have full power and authority to (i)
determine the time or times at which each exchange right under the Plan is to
become exercisable, (ii) determine the maximum term for which such exchange
right is to be exercisable, and (iii) determine all other terms and conditions
upon which each such exchange right may be exercised. The Administrator shall
have the full power and authority (subject to the provisions of the Plan) to
establish such rules and regulations as it may deem appropriate for the proper
administration of the Plan and to make such determinations under, and issue
such interpretations of, the Plan and any outstanding exchange right as it may
deem necessary or advisable. Decisions of the Administrator shall be final and
binding on all parties who have an interest in the Plan or any outstanding
exchange right. No person acting under this subsection shall be held liable
for any action or determination made in good faith with respect to the Plan or
any exchange right granted under the Plan.
3. ELIGIBILITY FOR EXCHANGE RIGHTS
All persons who are employees of the Subsidiary and who hold options
to purchase Subsidiary stock ("Participants") shall be eligible to receive
exchange rights under the Plan.
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4. STOCK SUBJECT TO THE PLAN
(a) The stock issuable under the Plan shall consist of shares of
the Company's authorized but unissued or reacquired common stock, $.01 par
value per share (the "Common Stock"). The aggregate number of shares issuable
under the Plan shall not exceed 518,000, subject to adjustment as provided in
subsection (b).
(b) If any change is made to the Common Stock issuable under the
Plan (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend, stock split, combination of shares, or
exchange of shares or other change in capital structure made without receipt of
consideration), then, unless such change results in the termination of all
outstanding exchange rights pursuant to the provisions of Section 6, the
Administrator will equitably adjust the maximum number and class of shares
issuable under the Plan to reflect the effect of such change upon the Company's
capital structure, and will make appropriate adjustments to the number and
class of shares of the stock subject to each outstanding exchange right. The
adjustments determined by the Administrator shall be final, binding and
conclusive.
(c) If any change is made to the Subsidiary common stock that may
be exchanged under the Plan as a result of any stock dividend on, dividend of
or stock split or stock combination, the exchange rights under the Plan shall
continue to apply to such Subsidiary stock as so changed, and the Administrator
will equitably adjust the exchange rights to preserve, without dilution, the
rights of Participants with respect to such exchange rights.
5. TERMS AND CONDITIONS OF EXCHANGE RIGHTS
(a) Description. An exchange right granted under this Plan shall
entitle the holder, at the times set out below, to transfer to the Company
shares of Subsidiary common stock received by exercise of options granted under
a Subsidiary stock option plan, and receive in exchange shares of Common Stock.
Each Participant under the Plan will be entitled to receive two shares of the
Company's Common Stock for every one share of Subsidiary common stock
transferred to the Company in accordance with the Plan, subject to adjustment
as provided in Section 4.
(b) Exchange Right Agreements. Each exchange right granted under
the Plan shall be evidenced by an exchange right agreement that complies with
the terms and conditions of this section. Each exchange right agreement shall
specify the options granted under the Subsidiary stock option plan to which the
exchange rights will apply.
(c) Term and Exercise of Exchange Rights. Each exchange right
granted under the Plan shall be exercisable at such time or times and during
such period as is determined by the Administrator and set forth in the exchange
right agreement evidencing such exchange rights; provided, however, that no
exchange right granted under the Plan shall be exerciseable until six months
following the date that the Subsidiary stock option to which the exchange right
relates has been exercised, and provided further, that no exchange right shall
have a term in excess of ten years from its date of grant. An exchange right
by its terms shall not be assignable or
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transferable by the holder other than by will or by the laws of descent and
distribution; during the lifetime of the holder, such exchange right shall be
exercisable only by the holder. Exchange rights may be exercised by written
notice to the Company (in such terms as the Administrator may specify and as
shall be reflected in the applicable exchange right agreement).
(d) Stockholder Rights. No Participant shall have any of the
rights of a stockholder with respect to any Common Stock covered by an exchange
right until such Participant has exercised the exchange right and been issued a
stock certificate for the purchased shares.
6. SALE, MERGER, REORGANIZATION, ETC.
(a) In the event that the Company or its stockholders enter into
an agreement to dispose of all or substantially all of the assets or
outstanding capital stock of the Company by means of sale, merger,
reorganization or liquidation, then each exchange right outstanding under the
Plan shall, to the extent not already exercisable, become exercisable,
immediately prior to the consummation of such sale, merger, reorganization or
liquidation, with respect to the full number of shares of Common Stock subject
to such exchange right, to the extent that the holder of the exchange right is
or becomes the beneficial owner of the Subsidiary stock subject to the exchange
right. No such acceleration of the exercise date, however, shall occur if the
terms of the agreement require as a prerequisite for the consummation of any
such sale, merger, reorganization or liquidation that each outstanding exchange
right shall either be assumed by the successor company or parent thereof or be
replaced with a comparable exchange right to receive shares of capital stock of
the successor company or parent thereof. The determination of such
comparability shall be made by the Board, and its determination shall be final,
binding and conclusive. Upon consummation of the sale, merger, reorganization
or liquidation contemplated by the agreement, all outstanding exchange rights,
whether or not accelerated, shall terminate and cease to be exercisable, unless
assumed pursuant to a written agreement by the successor company or parent
thereof.
(b) The grant of exchange rights under the Plan shall not affect
the right of the Company to adjust, reclassify, reorganize or otherwise change
its capital or business structure or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or assets.
7. CANCELLATION AND NEW GRANT OF EXCHANGE RIGHTS
The Administrator shall have the authority to effect, at any time and
from time to time, with the consent of the affected Participants, the
cancellation of any or all outstanding exchange rights under the Plan and to
grant in substitution therefor new exchange rights under the Plan covering the
same or different numbers of shares of Common Stock.
8. AMENDMENT OF THE PLAN AND EXCHANGE RIGHTS
The Board shall have complete and exclusive power and authority to
amend the Plan and the Administrator may amend or modify outstanding exchange
rights issued under the Plan in any or all respects whatsoever not inconsistent
with the terms of the Plan; provided, however,
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that no such amendment shall adversely affect the rights and obligations of a
holder with respect to exchange rights at the time outstanding under the Plan
unless the holder consents in writing to such amendment.
9. EFFECTIVE DATE AND TERM OF PLAN
(a) The Plan shall become effective when adopted by the Board. To
the extent necessary to comply with NASDAQ requirements or applicable law, the
Plan will be submitted, at the next regularly scheduled shareholders' meeting,
for approval by the shareholders of the Company by the affirmative vote of a
majority of the total votes cast in person or by proxy (or other stipulated
vote). Notwithstanding the foregoing, exchange rights may be granted under the
Plan at any time after the Board's adoption of the Plan and before the date is
fixed herein for termination of the Plan.
(b) Unless the Plan is sooner terminated in accordance with
Section 6, no exchange right may be granted under the Plan after the date on
which all shares available for issuance under the Plan have been issued
pursuant to the exercise of exchange rights granted hereunder. No exchange
right may be granted after twelve months following the adoption of the Plan by
the Board.
10. CONDITIONS TO ISSUING COMMON STOCK UNDER THE PLAN
The Company will not be obligated to issue any shares of Common Stock
upon the exercise of any exchange right granted under the Plan unless the
issuance and delivery of shares complies with all provisions of applicable
federal and state securities laws and the requirements of any stock market or
exchange upon which shares of the Common Stock may then be listed.
As a condition to the exercise of an exchange right, the Company may
require the person exercising such right to make such representations and
warranties as may be necessary to assure the availability of an exemption from
the registration requirements of applicable federal and state securities laws.
The Company will not be liable for refusing to issue any shares of
Common Stock covered by any exchange right if the Company cannot obtain
authority from the appropriate regulatory bodies deemed by the Company to be
necessary to lawfully sell or issue such shares. In addition, although the
Company has no other obligation to any Participant, express or implied, to
list, register or otherwise qualify the shares of Common Stock covered by any
exchange right, the Company hereby agrees to file a registration statement on
Form S-8 with the Securities and Exchange Commission with respect to shares of
Common Stock issuable pursuant to the Plan that would allow the Participants to
resell the shares of Company Common Stock acquired upon exercise of the
exchange rights. The Company agrees to deliver a prospectus conforming to the
requirements of Form S-8 to each Participant prior to vesting of the exchange
rights. The Company will use its commercially reasonable efforts to effect and
maintain the effectiveness of such registration statement (and maintain the
current status of any prospectus relating thereto) for so long as any of the
exchange rights granted under the Plan remain outstanding.
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Notwithstanding the foregoing, if in exercising such efforts, the Company is
unable for any reason to effect or maintain such effectiveness, or to maintain
the current status of any prospectus, or if the Company's Common Stock
generally ceases to be a registered security under the Securities Exchange Act
of 1934, the Company shall have no liability or obligation, financial or
otherwise, to the Participants under this Section 10.
11. RESTRICTIONS ON SHARES
Shares of Common Stock issued pursuant to the Plan will be subject to
restrictions on transfer under applicable federal and state securities laws.
Subject to the other terms of this Plan, the Administrator may impose such
additional restrictions on the ownership and transfer of shares of Common Stock
issued pursuant to the Plan as it deems desirable; any such restrictions will
be set forth in the exchange rights agreement entered into hereunder.
12. GOVERNING LAW
THE PLAN WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF STATE OF DELAWARE AND THE UNITED STATES, AS APPLICABLE, WITHOUT REFERENCE TO
THE CONFLICT OF LAWS PROVISIONS THEREOF.
13. SEVERABILITY OF PROVISIONS
If any provision of this Plan is determined to be invalid, illegal or
unenforceable, such invalidity, illegality or unenforceability will not affect
the remaining provisions of the Plan, but such invalid, illegal or
unenforceable provision will be fully severable, and the Plan will be construed
and enforced as if such provision had never been inserted herein.
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EXHIBIT 4.5
ATC COMMUNICATIONS GROUP, INC.
EXCHANGE RIGHTS AGREEMENT
Participant:
-------------------------------
Date of Grant:
-------------------------------
Number of Shares of Advanced
Telemarketing Corporation Common
Stock Qualified to be Exchanged:
-------------------------------
Total Number of Shares of ATC
Communications Group, Inc. Common
Stock to be Received in the Exchange:
-------------------------------
THIS AGREEMENT (the "Agreement") is made and entered into, as of the
Date of Grant set forth above, by and between ATC Communications Group, Inc., a
Delaware Company (the "Company"), and the Participant identified above (the
"Participant").
WHEREAS, the Company has implemented the ATC Communications Group,
Inc. 1996 Stock Exchange Rights Plan (the "Plan"), which was adopted by the
Company's Board of Directors (the "Board"), and which provides for the exchange
of Advanced Telemarketing Corporation ("Subsidiary") common stock, $.001 par
value per share ("Subsidiary Common Stock"), which has been issued upon the
exercise of Subsidiary stock options, for the Company's common stock, $.01 par
value per share (the "Company Common Stock").
WHEREAS, the Plan constitutes a "plan of reorganization" under Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended, and all
exchanges of Subsidiary common stock for Company common stock effected
hereunder shall be effected in accordance therewith.
WHEREAS, the committee authorized to administer the Plan (the
"Committee") has selected the Participant to participate in the Plan and has
awarded the exchange rights described in this Agreement (the "Exchange Rights")
to the Participant.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and to promote the success of the
business of the Company and Subsidiary, the parties hereby agree as follows:
1. Grant of Exchange Right. The Company hereby grants to the
Participant, on the terms and subject to the conditions, limitations and
restrictions set forth in the Plan and in this Agreement, the right to exchange
all (but not part) of the shares of Subsidiary Common Stock subject to the
Participant's then vested Subsidiary stock options for a number of shares of
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Company Common Stock equal to two times the number of shares of Subsidiary
Common Stock so exchanged, subject to adjustment as provided in Section 5,
effective as of the Date of Grant set forth above. The Participant hereby
accepts the Exchange Right from the Company.
2. Exercise. In order to exercise the Exchange Right with
respect to any Subsidiary Common Stock, the Participant must (a) hold the
Subsidiary Common Stock for at least six months following the date of exercise
of the Subsidiary stock option to which the Exchange Right relates (except as
otherwise provided in Section 6 of the Plan), and (b) provide written notice of
exercise to the Company at its principal executive office. At the time of
exercise, the Participant must deliver to the Company the certificate or
certificates representing the shares of Subsidiary Common Stock, properly
endorsed, along with this Agreement. If the Exchange Right is exercised in
full, the Participant will surrender this Agreement to the Company for
cancellation. If the Exchange Right is exercised in part, the Participant
shall surrender the Agreement to Escrow Agent so that Escrow Agent may make
appropriate notation thereon or cancel the Agreement and direct Depositor to
issue a new agreement representing the unexercised portion of the Exchange
Right.
3. Expiration of Exchange Right. The Exchange Right will expire,
and will not be exercisable with respect to any Subsidiary Common Stock on
___________ (six months following the date the Subsidiary stock options to
which this Exchange Right relates would have expired, plus five days).
4. Who May Exercise. The Exchange Right may be exercised during
the lifetime of the Participant only by the Participant. To the extent
exercisable after the Participant's death, the Exchange Right may be exercised
only by the Participant's representatives, executors, successors or
beneficiaries.
5. Adjustments. If any change is made to the Company Common
Stock issuable under the Plan (whether by reason of merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, combination of
shares, or exchange of shares or other change in capital structure made without
receipt of consideration), then, unless such change results in the termination
of all outstanding exchange rights pursuant to the provisions of Section 6 of
the Plan, the Administrator will equitably adjust the maximum number and class
of shares issuable under the Plan to reflect the effect of such change upon the
Company's capital structure, and will make appropriate adjustments to the
number and class of shares of the stock subject to this Agreement. The
adjustments determined by the Committee shall be final, binding and conclusive.
If any change is made to the Subsidiary common stock that may
be exchanged under the Plan as a result of any stock dividend on, dividend of
or stock split or stock combination, the Exchange Right shall continue to apply
to such Subsidiary stock as so changed, and the Administrator will equitably
adjust the Exchange Right to preserve, without dilution, the rights of the
Participant with respect to such Exchange Right.
6. Transfer of Exchange Right. The Participant may not, directly
or indirectly, sell, transfer, pledge, encumber or hypothecate ("Transfer")
this Agreement or the Exchange Rights
2
<PAGE> 3
granted hereunder, except by will or pursuant to the laws of descent and
distribution. In addition, the Participant may not, directly or indirectly,
Transfer any shares of Company Common Stock acquired upon exercise of the
Exchange Right other than (a) pursuant to an effective registration statement
filed under the Securities Act, or (b) pursuant to an exemption from the
registration requirements of the Securities Act. Although the Company has no
other obligation to the Participant, express or implied, to list, register or
otherwise qualify the shares of Common Stock covered by the Exchange Right, the
Company agrees to file a registration statement on Form S-8 with the Securities
and Exchange Commission with respect to the shares of Common Stock issuable
hereunder that would allow the Participant to resell the shares of Common Stock
acquired upon exercise of the Exchange Right. The Company agrees to deliver a
prospectus conforming to the requirements of Form S-8 to the Participant prior
to vesting of the Exchange Right. The Company will use its commercially
reasonable efforts to effect and maintain the effectiveness of such
registration statement (and maintain the current status of any prospectus
relating thereto) for so long as any of the exchange rights granted under the
Plan remain outstanding. Notwithstanding the foregoing, if in exercising such
efforts, the Company is unable for any reason to effect or maintain such
effectiveness, or to maintain the current status of any prospectus, or if the
Company's Common Stock generally ceases to be a registered security under the
Securities Exchange Act of 1934, the Company shall have no liability or
obligation, financial or otherwise, to the Participant under this Section 6.
7. Certain Legal Restrictions. The Company will not be obligated
to issue any shares of Company Common Stock upon the exercise of the Exchange
Right or otherwise unless the issuance and delivery of such shares complies
with all relevant provisions of law and other legal requirements including,
without limitation, any applicable federal or state securities laws and the
requirements of any stock market or exchange upon which shares of the Common
Stock may then be listed. As a condition to the exercise of the Exchange Right
and the issuance by the Company of Company Common Stock to the Participant, the
Company may require the Participant to make such representations and warranties
as may be necessary to assure the availability of an exemption from the
registration requirements of applicable federal or state securities laws. The
Company will not be liable for refusing to issue any shares if the Company
cannot obtain authority from the appropriate regulatory bodies deemed by the
Company to be necessary to lawfully sell or issue such shares. In addition,
except as expressly set forth herein, the Company will have no obligation to
the Participant, express or implied, to list, register or otherwise qualify any
of the Participant's shares of Company Common Stock. The shares of Company
Common Stock issued upon the exercise of the Exchange Right may not be
transferred except in accordance with applicable federal or state securities
laws.
8. Plan Incorporated. The Participant accepts the Exchange
Rights granted hereunder subject to all of the provisions of the Plan, which
are incorporated into this Agreement, including the provisions that authorize
the Committee to administer, interpret and amend the Plan and which provide
that the Committee's decisions, determinations and interpretations with respect
to the Plan are final and conclusive on all persons affected thereby. Except
as otherwise set forth in this Agreement, terms defined in the Plan have the
same meanings herein.
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<PAGE> 4
9. Miscellaneous.
(a) The granting of the Exchange Right imposes no
obligation on the Participant to exercise the Exchange Right or any part
hereof. No Participant shall have any of the rights of a stockholder with
respect to any Company Common Stock covered by an exchange right until such
Participant has exercised the exchange right and been issued a stock
certificate for the purchased shares.
(b) Any notice to be given to the Company under the terms
of this Agreement or any delivery of the Exchange Right to the Company must be
addressed to the Company at its principal executive offices, and any notice to
be given to the Participant must be addressed to the Participant at the address
set forth beneath his or her signature hereto, or at such other address for a
party as such party may hereafter designate in writing to the other. Any such
notice will be deemed to have been duly given when delivered in person or by
courier or overnight delivery service or five days after being mailed, postage
prepaid.
(c) Subject to the limitations in this Agreement on the
transferability by the Participant of the Exchange Right and any shares of
Common Stock, this Agreement will be binding upon and inure to the benefit of
the representatives, executors, successors or beneficiaries of the parties
hereto.
(d) The interpretation, performance and enforcement of
this Agreement will be governed by the laws of the State of Delaware and the
United States, as applicable, without reference to the conflict of laws
provisions thereof.
(e) If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, in whole or in part, then the
parties will be relieved of all obligations arising under such provision, but
only to the extent that it is illegal, unenforceable or void, it being the
intent and agreement of the parties that this Agreement be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(f) The parties agree to execute all documents, provide
all information, and take or refrain from taking all actions as may be
necessary or appropriate to achieve the purposes of this Agreement.
(g) This Agreement constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto.
(h) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof will
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
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<PAGE> 5
(i) This Agreement may be executed in counterparts, all
of which together will constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart.
(j) At any time and from time to time the Committee may
execute an instrument modifying, extending or renewing the Exchange Right;
provided, however, that no modification shall adversely affect the rights and
obligations of a holder with respect to an Exchange Right unless the holder
consents in writing to such modification. Except as provided in the preceding
sentence, no modification, extension or renewal of this Agreement or waiver of
any provision of this Agreement will be binding unless executed in writing by
all parties to this Agreement. No waiver of any of the provisions of this
Agreement will constitute a waiver of any other provision of this Agreement
(regardless of whether similar), nor will any such waiver constitute a
continuing waiver unless otherwise expressly provided.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
ATC COMMUNICATIONS GROUP, INC.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
PARTICIPANT:
-----------------------------------------
Name:
------------------------------------
Address:
---------------------------------
-----------------------------------------
-----------------------------------------
Fax:
-------------------------------------
5
<PAGE> 1
EXHIBITS 5.1 AND 23.1
April 30, 1997
ATC Communications Group, Inc.
5950 Berkshire Lane, Suite 1650
Dallas, Texas 75225
Re: Registration Statement on Form S-8 for the ATC Communications
Group, Inc. 1996 Stock Option and Restricted Stock Plan and
for the ATC Communications Group, Inc. 1996 Stock Exchange
Rights Plan
Ladies and Gentlemen:
We have acted as counsel to ATC Communications Group, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 2,000,000 shares
of the Company's common stock, $.01 par value per share (the "Common Stock"),
issuable under the ATC Communications Group, Inc. 1996 Stock Option and
Restricted Stock Plan (the "Option Plan"), and in connection with the
registration under the Securities Act of 518,000 shares of Common Stock
issuable under the ATC Communications Group, Inc. 1996 Stock Exchange Rights
Plan (the "Exchange Plan") (collectively, the shares issued under each plan are
referred to as the "Shares"). The Shares are being registered pursuant to a
registration statement on Form S-8 to be filed with the Securities and Exchange
Commission on or about May 1, 1997 (the "Registration Statement").
In rendering this opinion, we have examined and relied upon executed
originals, counterparts or copies of such documents, records and certificates
(including certificates of public officials and officers of the Company) as we
considered necessary or appropriate for enabling us to express the opinions set
forth herein. In all such examinations, we have assumed the authenticity and
completeness of all documents submitted to us as originals and the conformity
to originals and completeness of all documents submitted to us as photostatic,
conformed, notarized or certified copies.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Option Plan or exchanged under
the Exchange Plan, validly issued, fully paid and nonassessable, assuming the
Company maintains an adequate number of authorized but unissued shares of
Common Stock available for such issuance, and further assuming that the
consideration actually received by the Company for the Shares exceeds the par
value thereof.
We consent to the use of this opinion as an exhibit to the
Registration Statement.
HUGHES & LUCE, L.L.P.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated September 5, 1996, which appears on
page F-2 of ATC Communications Group, Inc.'s Annual Report on Form 10-K, as
amended by the Company's Annual Report on Form 10-KA, for the year ended June
30, 1996.
PRICE WATERHOUSE LLP
Dallas, Texas
April 28, 1997
