Registration No.
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 $43.38 $21,690,000 $7,479.31
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 Class A Common Stock in over-the-counter trading on June 20,
1996 ($43.38) multiplied by the number of shares being registered hereby.
The Index of Exhibits filed with this Registration Statement is found at
page 9.
<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"), 33-87056, effective December 5, 1994 (the Company's "1994
Form S-8"), and 333-01219, effective February 26, 1996 (the Company's "1996
Form S-8") are incorporated by reference herein.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been or will in the future be filed
by ACC Corp. (the "Company") with the Securities and Exchange Commission
("SEC") are incorporated in this Registration Statement by reference:
1.The Company's Annual Report on Form 10-K for its year ended December
31, 1995 filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act"), which contains certified financial
statements for the Company's fiscal year ended December 31, 1995.
2.The Company's Quarterly Report on Form 10-Q for its quarter ended
March 31, 1996, filed pursuant to Section 13(a) or 15(d) of the Exchange
Act.
3. The Company's Current Reports on Form 8-K filed with the SEC on
February 22, 1996 and April 15, 1996.
4.All other reports filed pursuant to Section 13(a) or 15 (d) of the
Exchange Act since December 31, 1995.
5.The Company's Notice of Annual Meeting of Shareholders and Proxy
Statement for its Annual Meeting of Shareholders to be held on June 14,
1996, filed pursuant to Section 14 of the Exchange Act.
6.The description of the Company's Class A Common Stock contained in
the Company's Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act, including any amendments or reports 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 which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in and to be a part of this
Registration Statement from the respective dates of the filing of such
documents. Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such 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 required.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") permits
the Company to indemnify any Director or officer of the Company against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement, incurred in defense of any action (other than an action by or
in the right of the Company) arising by reason of the fact that he/she is
or was an officer or Director of the Company, if in any civil action or
proceeding it is determined that he/she acted in good faith and in a manner
he/she reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal action or proceeding, it is
determined that he/she had no reasonable cause to believe his/her conduct
was unlawful. Section 145 also permits the Company to indemnify any such
officer or Director against expenses incurred in an action by or in the
right of the Company if he/she acted in good faith and in a manner he/she
reasonably believed to be in or not opposed to the best interests of the
Company, except in respect of any matter as to which such person is
adjudged to be liable to the Company, unless allowed by the court in which
such action is brought. This statute requires indemnification of such
officers and Directors against expenses to the extent they may be
successful in defending any such action. The statute also permits purchase
of liability insurance by the Company on behalf of its officers and
Directors.
Article Seven, Section 2 of the Company's Certificate of Incorporation
and Article V of its Bylaws (collectively its "charter documents")
generally provide for the mandatory indemnification of and advancement of
litigation expenses to the Company's Directors, officers and employees to
the fullest extent permitted by the DGCL against all liabilities, losses
and expenses incurred in connection with any action, suit or proceeding in
which any of them become involved by reason of their service rendered to
the Company or, at its request, to another entity; PROVIDED that it is
determined, in connection with any civil action, that the indemnitee acted
in good faith and in a manner that he/she reasonably believed to be in or
not opposed to the Company's best interests, and in connection with any
criminal proceeding, that the indemnitee had no reasonable cause to believe
his/her conduct was unlawful. These provisions of the Company's charter
documents are not exclusive of any other indemnification rights to which an
indemnitee may be entitled, whether by contract or otherwise. The Company
may also purchase liability insurance on behalf of its Directors and
officers, whether or not it would have the obligation or power to indemnify
any of them under the terms of its charter documents or the DGCL.
The Company has acquired and maintains liability insurance for the
benefit of its Directors and officers for serving in such capacities. It
has also entered into indemnification agreements with each of its Directors
and executive officers pursuant to which the Company has agreed to
indemnify, subject to the terms thereof, each of them to the fullest extent
authorized or permitted by the DGCL as well as any other law authorizing or
permitting such indemnification adopted after the respective dates of such
agreements, and to the fullest extent permitted by law, against litigation
costs and liabilities incurred in connection with any threatened, pending
or completed action, suit, proceeding or investigation by reason of the
fact that such Director or executive officer is or was serving in any such
capacity or is or was serving or at any time serves at the request of the
Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any Prospectus required by Section 10(a)(3)
of the Securities Act of 1933 ("Securities Act");
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of Prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8, or Form F-3 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
SEC by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's Annual Report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to Directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the SEC
such indemnification is against public policy as expressed in that Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a Director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such Director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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 21st
day of June, 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: June __, 1996 By:
Richard T. Aab, Director and
Chairman of the Board
Date: June 21, 1996 By: /S/ DAVID K. LANIAK
David K. Laniak,
Chief Executive Officer and a
Director
Date: June 21, 1996 By: /S/ ARUNAS A. CHESONIS
Arunas A. Chesonis,
President and Chief Operating Officer
and a Director
Date: June 21, 1996 By: /S/ MICHAEL R. DALEY
Michael R. Daley,
Executive Vice President and
Chief Financial Officer
(Principal Financial and
Accounting Officer)
Date: June 21, 1996 By: /S/ HUGH F. BENNETT
Hugh F. Bennett, Director
Date: June __, 1996 By:
Willard Z. Estey, Director
Date: June 21, 1996 By: /S/ DANIEL D. TESSONI
Daniel D. Tessoni, Director
Date: June 21, 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 June 14, 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 3,000,000 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.
<PAGE>
(FORM) INCENTIVE STOCK OPTION CONTRACT
This INCENTIVE STOCK OPTION CONTRACT is made by and between ACC Corp.,
a Delaware corporation, with its principal executive offices at 400 West
Avenue, Rochester, New York 14611 (the "Company") and
__________________________ with an address of
(the "Optionee").
The parties hereby agree as follows:
1. GRANT OF OPTION. Pursuant to the terms of the Company's Employee
Long Term Incentive Plan (the "Plan"), the Company hereby grants to the
Optionee an Incentive Stock Option (the "Option") to purchase an aggregate
of _________shares of the Company's Class A Common Stock, par value $.015
per share, at an exercise price of $______ per share. This Option may be
exercised at any time and from time to time, in whole or in part, subject
to the further conditions contained herein.
2. TERM. The term of this Option shall be ten years from the date
hereof, subject to earlier termination as provided in the Plan, as amended
from time to time, and subject to the restrictions concerning the exercise
of Options set forth therein.
3. EXERCISABILITY. This Option is exercisable immediately with
respect to 25% of the shares subject hereto, and with respect to an
additional 25% of such shares on each of the first, second and third
anniversary dates of the date hereof, EXCEPT THAT, if the Optionee is
subject to the provisions of Section 16 of the Securities Exchange Act of
1934, NO PART of this Option shall become exercisable for six months
following the grant date hereof.
4. PAYMENT OF EXERCISE PRICE. In order for this Option to be
exercised, in whole or in part, the Optionee must notify the Company in
writing of such exercise, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate exercise price for the
number of shares being purchased.
5. TRANSFERABILITY. This Option is not transferrable by the
Optionee other than by Will or the laws of descent and distribution and is
exercisable, during his/her lifetime, only by the Optionee.
6. BINDING EFFECT. This Option shall be binding upon and inure to
the benefit of any successor or assignee of the Company and any executor,
administrator, legal representative, legatee or distributee entitled by law
to exercise the Optionee's rights hereunder.
7. OPTION PLAN. The Optionee hereby agrees to all the terms and
provisions of the Plan and any future amendments thereto, which are
expressly incorporated into this Option and made a part hereof as if
printed herein. A current copy of the Plan will be provided to the
Optionee by the Company at any time and without charge, upon request.
IN WITNESS WHEREOF, the Company has caused this Option to be executed
on its behalf by its duly authorized officer, and the Optionee has hereunto
set his/her hand, as of the _____day of _______________, 19___.
COMPANY:
OPTIONEE: ACC CORP.
_____________________________ By: _________________________________
Title: ________________________________
<PAGE>
(FORM) NON-QUALIFIED STOCK OPTION CONTRACT
This NON-QUALIFIED STOCK OPTION CONTRACT is made by and between ACC
Corp., a Delaware corporation with its principal executive offices at 400
West Avenue, Rochester, New York 14611 (the "Company") and
_______________________with an address of
_____________________________________________________________ (the
"Optionee").
The parties hereby agree as follows:
1. GRANT OF OPTION. Pursuant to the terms of the Company's Employee
Long Term Incentive Plan (the "Plan"), the Company hereby grants to the
Optionee a Non-Qualified Stock Option (the "Option") to purchase an
aggregate of _________ shares of the Company's Class A Common Stock, par
value $.015 per share, at an exercise price of $__________ per share. This
Option may be exercised at any time and from time to time, in whole or in
part, subject to the further conditions contained herein.
2. TERM. The term of this Option shall be ten years and one day
from the date hereof, subject to earlier termination as provided in the
Plan, as amended from time to time, and subject to the restrictions
concerning the exercise of Options set forth therein.
3. EXERCISABILITY. This Option is exercisable immediately with
respect to 25% of the shares subject hereto, and with respect to an
additional 25% of such shares on each of the first, second and third
anniversary dates of the date hereof, EXCEPT THAT, if the Optionee is
subject to the provisions of Section 16 of the Securities Exchange Act of
1934, NO PART of this Option shall become exercisable for six months
following the grant date hereof.
4. PAYMENT OF EXERCISE PRICE. In order for this Option to be
exercised, in whole or in part, the Optionee must notify the Company in
writing of such exercise, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate exercise price for the
number of shares being purchased.
5. TRANSFERABILITY. This Option is not transferrable by the
Optionee other than by Will or the laws of descent and distribution and is
exercisable, during his/her lifetime, only by the Optionee.
6. BINDING EFFECT. This option shall be binding upon and inure to
the benefit of any successor or assignee of the Company and any executor,
administrator, legal representative, legatee or distributee entitled by law
to exercise the Optionee's rights hereunder.
7. OPTION PLAN. The Optionee hereby agrees to all the terms and
provisions of the Plan and any future amendments thereto, which are
expressly incorporated into this Option and made a part hereof as if
printed herein. A current copy of the Plan will be provided to the
Optionee by the Company at any time and without charge, upon request.
IN WITNESS WHEREOF, the Company has caused this Option to be executed
on its behalf by its duly authorized officer, and the Optionee has hereunto
set his/her hand, as of the _____day of ____________, 19___.
COMPANY:
OPTIONEE: ACC CORP.
_________________________________ By: ____________________________
Title: _________________________
<PAGE>
(FORM) STOCK INCENTIVE AGREEMENT
This STOCK INCENTIVE AGREEMENT ("Agreement") is made between ACC
CORP., a Delaware corporation (the "Company") and_________________ (the
"Holder").
The parties agree as follows:
1) GRANT OF SIRS. The Company hereby grants to the Holder__________
Stock Incentive Rights ("SIRs") under the Company's Employee Long Term
Incentive Plan (the "Plan"), subject to the conditions contained
hereinafter. These SIRs represent the right of the Holder to receive,
without any payment of any kind to the Company, an equal number of shares
of the Company's Class A Common Stock, par value $.015 per share, at the
end of the relevant Incentive Period(s) designated below and subject to the
other terms and conditions of the Plan.
2) INCENTIVE PERIOD(S). The Incentive Period(s) applicable to these
SIRs shall be as follows: as to 50% of these SIRs, the three-year period
beginning on the grant date of these SIRs and ending on the third
anniversary of that grant date; as to the next 25% of these SIRs, the four-
year period beginning on the grant date of these SIRs and ending on the
fourth anniversary of that grant date; and as to the last 25% of these
SIRs, the five-year period beginning on the grant date of these SIRs and
ending on the fifth anniversary of that grant date.
3) VESTING OF SIRS. The Holder will be entitled to be issued 50% of
the shares underlying these SIRs on the third anniversary of the grant date
of these SIRs, an additional 25% of the shares underlying these SIRs on the
fourth anniversary of the grant date of these SIRs, and the last 25% of the
shares underlying these SIRs on the fifth anniversary of the grant date of
these SIRs, PROVIDED THAT he/she is still an employee of the Company on
the relevant anniversary date. If the Holder is not still an employee of
the Company on the relevant anniversary date, then, except as provided in
the Plan with respect to death, disability, retirement or a change in
control of the Company during the relevant Incentive Period, he/she shall
forfeit all rights to receive any shares not already issued.
4) ISSUANCE OF SHARES. Certificates representing the number of
shares underlying these SIRs that the Holder is entitled to receive at the
end of the relevant Incentive Period described above will be issued
promptly after the end of that Incentive Period, NET of any applicable tax
withholdings against such issuance(s) made in accordance with the terms of
the Plan.
5) DIVIDEND EQUIVALENT PAYMENTS. As further described in the Plan,
during the Incentive Period(s), the Holder will be entitled to receive, on
all SIRs then held, dividend equivalent payments with respect to any cash
dividends declared by the Company on its Class A Common Stock.
6) NONTRANSFERABILITY. This grant is not transferable by the Holder,
in whole or in part, whether voluntarily, by operation of law, by Will or
the laws of descent and distribution, or otherwise. In the event of the
Holder's death, disability or retirement during an Incentive Period, any
issuance of shares underlying this grant shall be made in accordance with
the terms of the Plan.
7) INCORPORATION OF PLAN. The Holder hereby agrees to all the terms
and provisions of the Plan applicable to this grant, which are expressly
incorporated into this agreement and made a part hereof as if printed
herein. A copy of the Plan will be provided to the Holder at any time upon
request.
8) BINDING AGREEMENT. This Agreement shall be binding upon and inure
to the benefit of any successor or assignee of the Company and to any
executor, administrator, legal representative, legatee or distributee of
the Holder.
IN WITNESS WHEREOF, the Company and the Holder have duly executed this
Agreement as of the grant date of these SIRs, which is shown below.
ACC CORP. HOLDER:
By: ______________________________ ________________________________
Title: ____________________________
Grant Date:
EXHIBIT 5-1
June 21, 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
EXHIBIT 23-2
CONSENT OF CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports
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), included in ACC Corp.'s Form 10-K for the
year ended December 31, 1995 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
Rochester, New York
June 24, 1996
