Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
ACC CORP.
(Exact name of issuer as specified in its charter)
DELAWARE 16-1175232
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 WEST AVENUE, ROCHESTER, NY 14611
(Address of Principal Executive Offices)
ACC CORP.
EMPLOYEE LONG TERM INCENTIVE PLAN
(formerly known as the "ACC Corp. Employee Stock Option Plan")
(Full title of the Plan)
____________________
UNDERBERG & KESSLER
1800 CHASE SQUARE
ROCHESTER, NEW YORK 14604
(Name and address of agent for service)
Telephone number, including area code, of agent for service:
(716) 258-2800
____________________________
Approximate date of commencement of proposed sales to the public: From
time to time after the effective date of this Registration Statement as
determined by market conditions.
____________________________
(continued on next page)
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE* PRICE* FEE
Class A 500,000 $28.56 $14,280,000 $4,924.14
Common Stock shares
par value
$.015 per
share
* Estimated solely for purposes of calculating registration fee. Per-
share price and aggregate offering price are calculated pursuant to Rule
457(h) based upon the average of the High and Low Prices quoted for the
Registrant's Common Stock in over-the-counter trading on February 22, 1996
($28.56) multiplied by the number of shares being registered hereby.
The Index of Exhibits filed with this Registration Statement is found at
page 6.
<PAGE>
INCORPORATION BY REFERENCE
Pursuant to General Instruction E to Form S-8, the contents of the
Company's prior Form S-8 Registration Statements relating to this Plan,
Registration Numbers 33-36546, effective August 27, 1990 (the Company's
"1990 Form S-8"), 33-52174, effective September 18, 1992 (the Company's
"1992 Form S-8"), and 33-87056, effective December 5, 1994 (the Company's
"1994 Form S-8"), are incorporated by reference herein.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference to the Company's 1990 Form S-8.
ITEM 4. DESCRIPTION OF SECURITIES.
Not required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated by reference to the Company's 1990 Form S-8.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
Incorporated by reference to the Company's 1994 Form S-8.
<PAGE>
POWER OF ATTORNEY
Registrant and each person whose signature appears below hereby
appoints David K. Laniak, Arunas A. Chesonis and Michael R. Daley, and
each of them, as attorneys-in-fact, each with full power of substitution,
to execute in their names and on behalf of the Registrant and each such
person, individually and in each capacity stated below, one or more
amendments (including post-effective amendments) to this Registration
Statement as the attorney-in-fact acting on the premise shall from time to
time deem appropriate and to file any such amendment to this Registration
Statement with the Securities and Exchange Commission.
SIGNATURES
THE REGISTRANT. 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 Rochester, New York, on this 26th
day of February, 1996.
ACC CORP.
By: /S/ DAVID K. LANIAK
David K. Laniak,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
Date: February 26, 1996 By /S/ RICHARD T. AAB
Richard T. Aab, Director and
Chairman of the Board
Date: February 26, 1996 By: /S/ DAVID K. LANIAK
David K. Laniak,
Chief Executive Officer and a
Director
Date:February 26, 1996 By: /S/ ARUNAS A. CHESONIS
Arunas A. Chesonis,
President and Chief Operating Officer
and a Director
Date: February 26, 1996 By: /S/ MICHAEL R. DALEY
Michael R. Daley,
Executive Vice President and
Chief Financial Officer
Date: February 26, 1996 By: /S/ SHARON L. BARNES
Sharon L. Barnes, Controller
Date: February 26, 1996 By: /S/ HUGH F. BENNETT
Hugh F. Bennett, Director
Date: February __, 1996 By:
Willard Z. Estey, Director
Date: February 26, 1996 By: /S/ DANIEL D. TESSONI
Daniel D. Tessoni, Director
Date: February 26, 1996 By: /S/ ROBERT M. VAN DEGNA
Robert M. Van Degna, Director
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION LOCATION
4-1 ACC Corp. Employee Long Term Filed herewith
Incentive Plan, as amended
5-1 Opinion of Underberg & Kessler, Filed herewith
Counsel to the Company
23-1 Consent of Underberg & Kessler, Included in its
Counsel to the Company Opinion filed
as Exhibit 5-1
23-2 Consent of Arthur Andersen LLP, Filed herewith
Independent Public Accountants
24-1 Power of Attorney See Part II of
Registration
Statement
EXHIBIT 4-1
ACC CORP.
EMPLOYEE LONG TERM INCENTIVE PLAN
As Amended through February 5, 1996
1. PURPOSE. The ACC CORP. EMPLOYEE LONG TERM INCENTIVE PLAN
(hereinafter referred to as the "Plan") is designed to furnish additional
incentive to key employees of ACC Corp., a Delaware corporation
(hereinafter referred to as the "Company"), and its parents or
subsidiaries, upon whose judgment, initiative and efforts the successful
conduct of the business of the Company largely depends, by encouraging such
key employees to acquire a proprietary interest in the Company or to
increase the same, and to strengthen the ability of the Company to attract
and retain in its employ persons of training, experience and ability. Such
purposes will be effected through the ability to grant two types of awards
hereunder: (a) stock options, as herein provided, which may be of two
types: (i) "incentive stock options" ("ISOs") within the meaning of Section
422 of the Internal Revenue Code of 1986, as the same has been and shall be
amended (hereinafter referred to as the "Code"); or (ii) non-qualified
stock options ("NQSOs"); and (b) stock incentive rights ("SIRs").
Collectively, options and SIRs may sometimes be referred to as "awards,"
and if not otherwise specified hereinafter, any reference to "options"
shall be deemed to refer to both ISOs and NQSOs.
2. ELIGIBILITY.
(a) GENERAL. The persons who shall be eligible to receive awards
under the Plan shall be those employees of the Company, or of any of its
parents or subsidiaries within the meaning of Section 424(e) and (f) of the
Code, who are exempt from the overtime provisions of the Fair Labor
Standards Act of 1938, as amended, by reason of employment in an executive,
administrative or professional capacity under 29 U.S.C. Section 213(a)(1).
(b) SPECIAL PROVISIONS REGARDING ISOS. With respect to the granting
of ISOs, no ISOs shall be granted to a person who would, at the time of the
grant of such option, own, or be deemed to own for purposes of Section
422(b)(6) of the Code, more than 10% of the total combined voting power of
all classes of shares of stock of the Company or its parents or
subsidiaries unless at the time of the grant of the ISO both of the
following conditions are met:
(i) the ISO option price is at least 110% of the fair market
value of the shares of stock subject to the ISO, as defined in
paragraph 4(a) hereof, and
(ii) the ISO is, by its terms, not exercisable after the
expiration of five years from the date it is granted.
3. SHARES AUTHORIZED FOR AWARDS.
(a) SHARES AUTHORIZED FOR ISSUANCE. Subject to the provisions of
paragraph 3(b) hereof, the maximum number of shares of the Company's Class
A Common Stock, par value $.015 per share, ("Common Stock"), that may be
issued under the Plan is 2,500,000 shares of the Company or of its parent
or subsidiaries (hereinafter referred to as the "Shares"), which Shares
may, in the discretion of the Executive Compensation Committee of the Board
of Directors of the Company (the "Committee") consist either in whole or in
part of authorized but unissued Shares or Shares held in the treasury of
the Company. Any Shares subject to an award which for any reason expires,
is terminated unexercised or is forfeited for any reason shall continue to
be available for awards under the Plan. For purposes of complying with
Code Section 162(m), for each fiscal year of the Company during which this
Plan is in effect, no person who is for that year determined to be a
"covered employee" for purposes of Code Section 162(m)(3) shall be eligible
to be granted options to purchase more than the number of shares authorized
for issuance under the Plan.
(b) ANTI-DILUTION PROVISIONS. The aggregate number and kind of
Shares available for awards under the Plan, and the number and kind of
Shares subject to outstanding awards, and the option price of each
outstanding option, shall be proportionately adjusted by the Committee for
any increase, decrease or change in the total outstanding shares of the
Company resulting from a stock dividend, recapitalization, merger,
consolidation, split-up, combination, exchange of shares or similar
transaction (but not by reason of the issuance or purchase of shares by the
Company in consideration for money, services or property).
(c) GENERAL. The Committee may, prospectively or retroactively,
amend the terms of any option granted hereunder, except that anything in
this Plan to the contrary notwithstanding: (i) no such amendment or other
action by the Committee shall impair the rights of any person holding any
award under this Plan without his or her consent; and (ii) no term of this
Plan relating to ISOs shall be interpreted, amended or altered, nor shall
any discretion or authority granted hereunder be so exercised, so as to
disqualify this Plan under Section 422 of the Code, or, without the consent
of the optionee(s) affected, to disqualify under said Section 422 any
option granted as an ISO. However, for all purposes hereunder, should any
option granted as an ISO fail to qualify as an ISO, it shall be treated as
an NQSO hereunder.
4. TERMS AND CONDITIONS OF OPTIONS. Options shall be granted by the
Committee pursuant to the Plan and shall be subject to the following terms
and conditions:
(a) PRICE. Each option grant shall state the number of Shares
subject to the option and the option exercise price, which shall be not
less than the fair market value of the Shares with respect to which the
option is granted at the time of the granting of the option; provided,
however, that the option exercise price with respect to ISOs shall be at
least 110% of fair market value in the case of a grant of an ISO to a
person who would at the time of the grant own, or be deemed to own for
purposes of Section 422(b)(6) of the Code, more than 10% of the total
combined voting power of all classes of shares of the Company, its parents
or subsidiaries. For purposes of this paragraph, "fair market value" shall
mean:
(i) the Closing Price quoted for the Company's Common Stock
in the National Association of Securities Dealers Automated
Quotation System on the last business day immediately preceding
the date of the grant of the option, or
(ii) the most recent sale price for the Company's Common
Stock as of the date of the grant of the option, or
(iii)such price as shall be determined by the Committee in
an attempt made in good faith to meet the requirements of Section
422(b)(4) of the Code.
(b) TERM. The term of each option grant shall be determined by the
Committee subject to the following:
(i) With respect to ISOs, in no event shall an ISO be
exercisable either in whole or in part after the expiration of
ten years from the date on which it is granted; except that such
term shall not exceed five years with respect to any ISO grant
made to a person who would own, or be deemed to own for purposes
of Section 422(b)(6) of the Code, more than 10% of the total
combined voting power of all classes of shares of the Company's
stock, or that of its parents or subsidiaries, at the time of
such grant.
(ii) With respect to NQSOs, in no event shall an NQSO be
exercisable either in whole or in part after the expiration of
ten years and one day from the date on which it is granted.
Notwithstanding the foregoing, the Committee and an optionee may, by
mutual agreement, terminate any option granted to such optionee under the
Plan.
(c) EXERCISABILITY.
(i) GENERAL. Any options granted hereunder in excess of 2,250
Shares shall only be exercisable with respect to 25% of the number of such
optioned Shares on the first anniversary of the date of grant, and with
respect to an additional 25% of such Shares on each of the second, third
and fourth anniversaries of the date of grant. Any options granted
hereunder for 2,250 Shares or less shall only be exercisable with respect
to 50% of the number of such optioned Shares on the first anniversary of
the date of grant, and with respect to an additional 50% of such Shares on
the second anniversary of the date of grant. The Committee shall have the
right, however, at any time to waive or modify these exercisability
requirements in its sole discretion, subject to the provisions of Section
422 of the Code with respect to ISOs.
(ii) ACCELERATION OF EXERCISABILITY IN THE EVENT OF A CHANGE IN
CONTROL. Notwithstanding subparagraph 4(c)(i) above, all options then
outstanding under this Plan shall automatically become exercisable in full
upon the occurrence of any of the following events, each of which shall be
deemed a "change in control" of the Company: (1) a merger or other
business combination approved by the Company's shareholders; (2) the
acquisition by a third party of more than 50% of the total outstanding
shares of the Company's Common Stock; or (3) a change in the composition of
the Company's Board of Directors such that a majority of the Board consists
of Directors other than the incumbent Directors and the nominees of the
incumbent Directors; PROVIDED, HOWEVER, that in all events the Committee
shall have the discretion to determine that a particular transaction does
not constitute a "change in control" for purposes of this subparagraph.
(d) NON-ASSIGNMENT DURING LIFE. During the lifetime of the optionee,
options granted hereunder shall be exercisable only by him/her and shall
not be assignable or transferable by him/her, whether voluntarily or by
operation of law or otherwise, and no other person shall acquire any rights
therein.
(e) DEATH OF OPTIONEE. In the event that an optionee shall die prior
to the complete exercise of options granted to him/her under the Plan, such
remaining options may be exercised in whole or in part after the date of
the optionee's death only: (i) by the optionee's estate or by or on behalf
of such person or persons to whom the optionee's rights under the option
pass under the optionee's Will or the laws of descent and distribution,
(ii) to the extent that the optionee was entitled to exercise the option at
the date of his/her death, and (iii) prior to the expiration of the term of
the option.
(f) PRIOR OUTSTANDING ISOS.
(i) ISOS GRANTED PRIOR TO JANUARY 1, 1987. With respect to ISOs
granted prior to January 1, 1987, no ISO shall be exercisable in whole or
in part while there is outstanding any ISO to purchase Shares in the
Company or any of its parents or subsidiaries, or in any predecessor
corporation of the Company or parent or subsidiary of such predecessor.
For purposes of this subparagraph (i), an ISO shall be deemed to be
outstanding until it is exercised in full or expires by reason of the lapse
of time.
(ii) ISOS GRANTED AFTER DECEMBER 31, 1986. With respect to ISOs
granted after December 31, 1986, the sequential exercise rule stated in
subparagraph (i) above is eliminated in all respects. ISOs thus granted
need not be exercised in the order granted, and any ISOs granted prior to
January 1, 1987 shall not prevent the exercise, in any order, of any ISOs
granted after December 31, 1986.
(g) GRANT LIMITATION. With respect to ISOs granted under this Plan,
the Company may grant any eligible employee ISOs under all incentive stock
option plans of the Company or in any corporation which is a parent or
subsidiary of the Company, in any amount; PROVIDED, however, that the value
of such options, as determined on their date of grant, that shall first
become exercisable by an optionee in any calendar year cannot exceed
$100,000.
(h) TERMINATION OF EMPLOYMENT. An option shall be exercisable during
the lifetime of the optionee to whom it is granted only if, at all times
during the period beginning on the grant date of the option and ending on
the day 30 days before the date of such exercise, he or she is an employee
of the Company or its parent or any of its subsidiaries, or an employee of
a corporation or a parent or subsidiary of such corporation issuing or
assuming an option granted hereunder in a transaction to which Section
424(a) of the Code applies, subject to the following exceptions: (i) in the
case of an optionee who is disabled within the meaning of Section 22(e)(3)
of the Code, the 30-day period after cessation of employment during which
an option shall be exercisable shall be one year; and (ii) with respect to
NQSOs, the Committee shall have the discretion to extend from 30 days to
one year the period following an optionee's termination of employment
during which time the optionee may exercise his or her NQSOs that are
otherwise exercisable as of the date of such termination. However,
notwithstanding the foregoing, no option shall be exercisable after the
expiration of its term. For purposes of this subsection, an employment
relationship will be treated as continuing intact while the optionee is on
military duty, sick leave or other BONA FIDE leave of absence, such as
temporary employment by the government, if the period of such leave does
not exceed 30 days, or, if longer, so long as a statute or contract
guarantees the optionee's right to re-employment with the Company, its
parent or any of its subsidiaries, or another corporation issuing or
assuming an option granted hereunder in a transaction to which Section
424(a) of the Code applies. When the period of leave exceeds 30 days and
the individual's right to re-employment is not guaranteed either by statute
or by contract, the employment relationship will be deemed to have
terminated on the 31st day of such leave.
(i) POWER TO ESTABLISH OTHER PROVISIONS. Options granted under the
Plan shall contain such other terms and conditions as the Committee shall
deem advisable, subject, in the case of ISOs, to the provisions of Section
422 of the Code and the regulations promulgated thereunder.
5. EXERCISE OF OPTION. Options shall be exercised as follows:
(a) NOTICE AND PAYMENT. Each option, or any installment thereof,
shall be exercised, whether in whole or in part, by giving written notice
to the Company at its principal office, specifying the number of Shares
purchased and the option price being paid, and accompanied by the payment
of the applicable option price in cash, by certified or bank check payable
to the order of the Company, or, at the discretion of the Committee, by
tendering shares of the Company's Common Stock already owned by the
optionee (provided, however, that the optionee shall have owned such shares
for at least six months). To the extent that the Committee permits payment
of the option price through the tender of Common Stock already owned by the
optionee, the fair market value of the shares of Common Stock tendered
shall be determined by reference to the Closing Price quoted for the
Company's Common Stock as of the close of business on the date on which the
Company receives notice of the optionee's exercise of an option. Each such
notice shall also contain representations on behalf of the optionee that he
or she acknowledges that the Company is selling the Shares to him or her
under a claim of exemption from registration under the Securities Act of
1933, as amended (hereinafter referred to as the "Act"), as a transaction
not involving any public offering; that he or she represents and warrants
that he or she is acquiring such Shares with a view to "investment" and not
with a view to distribution or resale; and that he or she agrees not to
transfer, encumber or dispose of the Shares unless: (i) a registration
statement with respect to the Shares shall be effective under the Act,
together with proof satisfactory to the Company that there has been
compliance with applicable state law; or (ii) the Company shall have
received an opinion of counsel in form and content satisfactory to the
Company to the effect that the transfer qualifies under Rule 144 or some
other disclosure exemption from registration and that no violation of the
Act or applicable state laws will be involved in such transfer, and/or such
other documentation in connection therewith as the Company's counsel may in
its sole discretion require.
(b) ISSUANCE OF CERTIFICATES. Certificates representing the Shares
purchased by an optionee shall be issued as soon as practicable after the
optionee has complied with the provisions of paragraph 5(a) hereof.
(c) RIGHTS AS A SHAREHOLDER. The optionee shall have no rights as a
shareholder with respect to the Shares purchased until the date of the
issuance to him or her of a certificate(s) representing such Shares.
(d) DISPOSITION OF SHARES RECEIVED PURSUANT TO EXERCISE OF AN ISO.
Subject to the provisions of paragraph 5(a) hereof, to obtain ISO tax
treatment under the Code, an optionee can make no disposition, within the
meaning of Section 424(c) of the Code, of Shares acquired by the exercise
of an ISO within two years from the date of the grant of the ISO or within
one year following the optionee's exercise of the ISO; PROVIDED, however,
that the foregoing holding periods shall not apply to the disposition of
Shares after the death of the optionee by the estate of the optionee, or by
a person who acquired the Shares by bequest or inheritance or otherwise by
reason of the death of the optionee. For purposes of the preceding
sentence, in the case of a transfer of Shares by an insolvent optionee to a
trustee, receiver or similar fiduciary in any proceeding under Title 11 of
the United States Code or any similar insolvency proceeding, neither the
transfer, nor any other transfer of such Shares for the benefit of his or
her creditors in such proceeding, shall constitute a disposition.
(e) TAX WITHHOLDING MATTERS. With respect to the exercise of an NQSO
hereunder, no later than the date as of which any amount first becomes
includible in an optionee's gross income for income tax purposes, the
optionee shall pay to the Company, or make arrangements satisfactory to the
Company regarding the payment of, any federal, state or local taxes of any
kind required by law to be withheld or paid with respect to such income.
The Company's obligations under this Plan shall be conditional on such
payment or arrangements and the Company shall, to the extent permitted by
law, have the right to deduct the amount of any such tax obligations from
any payment of any kind otherwise due the optionee.
6. STOCK INCENTIVE RIGHTS.
(a) AWARD OF SIRS. The Committee may from time to time, and subject
to the provisions of the Plan and such other terms and conditions as the
Committee may prescribe, award one or more SIRs to any eligible employee.
SIR grants shall be evidenced by written Stock Incentive Agreements in such
form as the Committee may from time to time determine on the advice of
counsel to the Company. Each Stock Incentive Agreement shall set forth the
number of Shares of Common Stock issuable under the SIRs awarded. Subject
to the provisions of Sections 6(c) and 6(e) below, a recipient of an SIR
grant shall be entitled to receive that number of Shares of the Company's
Common Stock issuable thereunder, without payment, upon the expiration of
the incentive period established in the Stock Incentive Agreement with
respect to those Shares.
(b) INCENTIVE PERIOD. Each Stock Incentive Agreement shall set forth
the incentive period which shall be applicable to the Shares of Common
Stock issuable thereunder, which shall in no event be less than three years
from the date of award. Subject to the foregoing, the Committee may, in
its sole discretion, establish any vesting schedule with respect to the
grant of a SIR that it deems appropriate.
(c) TERMINATION OF EMPLOYMENT. Except as provided in Section 6(e)
below, all SIRs awarded to a grantee shall terminate upon termination of
the grantee's employment with the Company prior to the end of the incentive
period applicable to his/her SIRs, and in such event, the grantee shall not
be entitled to receive any Shares in respect of such award.
(d) NON-ASSIGNMENT DURING LIFE. During the lifetime of the grantee,
SIRs shall not be assignable or transferable by him/her, whether
voluntarily or by operation of law or otherwise, and no other person shall
acquire any rights therein.
(e) DEATH, DISABILITY OR RETIREMENT. In the event that the
employment of a grantee holding SIRs is terminated during an incentive
period by reason of death, permanent disability (as determined by the
Committee), or normal retirement, such grantee shall be entitled to
receive, as of the date of any such event, that number of Shares equal to:
(1) the product of (i) the total number of Shares that the grantee would
have been entitled to receive pursuant to the SIR award upon the expiration
of the incentive period had his/her employment not terminated as a result
of death, disability or retirement, and (ii) a fraction, the numerator of
which shall be the number of full calendar months between the date of award
of the SIRs and the date that his/her employment terminated, and the
denominator of which shall be the number of full calendar months in the
incentive period, less (2) the number of Shares already issued, if any, to
the grantee under that SIR award.
(f) ACCELERATION OF VESTING IN THE EVENT OF A CHANGE IN CONTROL.
Notwithstanding the foregoing, all SIRs shall automatically become fully
vested and issuable upon the occurrence of a "change in control" of the
Company as defined in Paragraph 4(c)(ii) above; PROVIDED, HOWEVER, that in
all events the Committee shall have the discretion to determine that a
particular transaction does not constitute a "change in control" for
purposes of this subparagraph and FURTHER PROVIDED that the grantee is an
employee of the Company on the date that such a "change in control" occurs.
(g) DIVIDEND EQUIVALENT PAYMENTS. During an incentive period, should
the Company declare and pay any cash dividends on its Common Stock, each
grantee of an SIR shall be entitled to receive from the Company an amount
equal to such cash dividend that the Company would have paid to such
grantee had he/she, on the record date for the payment of such dividend,
owned of record the shares of Common Stock that are covered by the SIR as
of the close of business on such record date. Each such dividend
equivalent payment shall be made by the Company on the payment date of the
cash dividend in respect of which it is to be made.
(h) ISSUANCE OF CERTIFICATES. Certificates representing the Shares
issued to a grantee at the end of an incentive period shall be issued as
soon as practicable after the end of the relevant incentive period, subject
to the grantee's complying with any conditions to the issuance of such
Shares as the Company's counsel shall require in order that the issuance of
such Shares will be in compliance with the Act and any other laws
applicable thereto, and the Company shall be entitled to receive such other
information, assurances, documents, representations or warranties as it or
its counsel may reasonably require with respect to such compliance.
Additionally, if deemed necessary by Company counsel, appropriate
restrictive legends may be placed on any certificates for Shares issued to
a grantee and the Company may cause stop transfer orders to be placed
against such certificate(s).
(i) RIGHTS AS A SHAREHOLDER. A grantee shall have no rights as a
shareholder with respect to the Shares subject to outstanding SIRs until
the date of the issuance to him/her of a certificate(s) representing such
Shares.
7. TERM OF PLAN. Awards may be granted pursuant to this Plan from
time to time within a period of ten years after the date it is adopted by
the Board of Directors of the Company or the date it is approved by the
holders of a majority of the outstanding shares of the Company, whichever
date is earlier. However, the Plan shall not take effect until approved by
the holders of a majority of the outstanding shares of the Company, at a
duly constituted meeting thereof, held within 12 months before or after the
date the Plan is adopted by the Board of Directors.
8. AMENDMENT AND TERMINATION OF PLAN. Without further approval of
the shareholders of the Company, the Board of Directors or the Committee
may at any time suspend or terminate the Plan, or, subject to the terms
hereof, may amend it from time to time in any manner; provided, however,
that no amendment shall be effective without the prior approval of the
shareholders of the Company that would: (i) except as provided in
paragraph 3(b) hereof, increase the maximum number of Shares for which
awards may be granted under the Plan; (ii) change the eligibility
requirements for individuals entitled to receive awards under the Plan;
(iii) cause options granted or to be granted under the Plan as ISOs to fail
to qualify as ISOs under Section 422 of the Code and the regulations
promulgated thereunder; or (iv) materially increase the benefits accruing
to participants under the Plan.
9. ADMINISTRATION. The Plan shall be administered by the Committee,
and decisions of the Committee concerning the interpretation and
construction of any provisions of the Plan or of any award granted pursuant
to the Plan shall be final. The Company shall effect the grant of awards
under the Plan in accordance with the decisions of the Committee, which
may, from time to time, adopt rules and regulations for the carrying out of
the Plan. For purposes of the Plan, an option shall be deemed to be
granted when a written Stock Option Contract is signed on behalf of the
Company by its duly authorized officer or representative, and a grant of
SIRs shall be deemed to be made as of the date a written Stock Incentive
Agreement is signed on behalf of the Company by its duly authorized officer
or representative. Subject to the express provisions of the Plan, the
Committee shall have the authority, in its discretion and without
limitation: to determine the individuals to receive awards; the timing and
amount of such awards; the incentive period applicable to each SIR award;
the term of each option; the date(s) on which each option shall become
exercisable; whether an option shall be exercisable in whole, in part, or
in installments; the option exercise price of each option; the terms of
payment for Shares purchased by the exercise of each option; to accelerate
the date of exercise of any installment; and to make all other
determinations necessary or advisable for administering the Plan. Whenever
the Company issues Shares with respect to SIRs awarded under this Plan, it
shall withhold an amount sufficient to satisfy any Federal, state and/or
local income tax withholding requirements prior to the delivery of any
certificate(s) representing such Shares. Such withholding shall be
accomplished by withholding that number of Shares from the total to be so
issued as equals the amount of such withholding requirements to be
satisfied, such Shares to be valued at their then-current fair market value
(as determined by the closing price quoted for the Company's Common Stock
on the last business day on which it traded immediately preceding the end
of the relevant incentive period). Any fractional Shares resulting from
such tax withholding shall be paid to the participant in cash. The Plan,
all awards granted and all actions taken hereunder shall be governed by and
construed in accordance with the laws of the State of Delaware.
10. RESERVATION OF SHARES. The Company shall be under no obligation
to reserve Shares to fill awards. Likewise, because of the substantial
nature of the conditions which must be met to entitle eligible employees to
deliveries of reserved Shares, the Company shall be under no obligation to
reserve Shares against such deliveries. The optioning or awarding and
reservation of Shares for employees hereunder shall not be construed to
constitute the establishment of a trust of the Shares so optioned or
awarded and reserved, and no particular Shares shall be identified as
optioned or awarded and reserved for employees hereunder. The Company
shall be deemed to have complied with the terms of the Plan if, at the time
of the issuance and delivery pursuant to the exercise of an option, or
expiration of an incentive period with respect to an SIR, or reservation,
as the case may be, it has a sufficient number of Shares authorized and
unissued or held in its treasury for the purposes of the Plan, irrespective
of the date when such Shares were authorized.
11. APPLICATION OF PROCEEDS. The proceeds of the sale of Shares by
the Company under the Plan will constitute general funds of the Company and
may be used by the Company for any purpose.
C:\TPY\ACC\LTIP2-96.PLN
EXHIBIT 5-1
February 26, 1996
ACC Corp.
400 West Avenue
Rochester, NY 14611
Re: Registration on Form S-8 of 500,000 Shares of ACC Corp.
Class A Common Stock for Sale Under the Securities Act of
1933
Gentlemen:
We have acted as counsel to ACC Corp. (the "Company"), a Delaware
corporation, in connection with the registration for public sale of a total
of 500,000 shares of its Class A Common Stock, par value $.015 per share,
as more fully described in the Registration Statement on Form S-8 being
filed by the Company with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended.
In our opinion, the 500,000 shares of Class A Common Stock covered by
the aforesaid Registration Statement have been duly authorized and, when
issued in accordance with the terms of the Company's Employee Long Term
Incentive Plan and the grants thereunder, will be legally and validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to any references to this opinion therein.
Very truly yours,
/s/ Underberg & Kessler, LLP
UNDERBERG & KESSLER, LLP
C:\TPY\ACC\1996S8.OPN
EXHIBIT 23-2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-8 of our report dated February 6,
1996 (except with respect to the matters discussed in Notes 10 and 11.A, as
to which the dates are February 20, 1996 and February 8, 1996,
respectively), incorporated by reference in ACC Corp.'s Form 8-K dated
February 22, 1996 and to all references to our Firm included in this Form
S-8.
/s/ Arthur Andersen LLP
Rochester, New York
February 26, 1996
