Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
Registration Statement
Under
THE SECURITIES ACT OF 1933
ACC CORP.
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(Exact name of registrant as specified in its charter)
Delaware 16-1175232
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 WEST AVENUE, ROCHESTER, NY 14611
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(Address of Principal Executive Offices)
ACC CORP. CANADIAN EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
SARAH M. AYER-GUDELL, ESQ.
ASSISTANT CORPORATE COUNSEL
ACC CORP.
400 WEST AVE., ROCHESTER, NY 14614
(716) 987-3000
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(Name,address including zip code and telephone number,
including area code of agent for service)
Copy to:
JOHN C. PARTIGAN, ESQ.
NIXON, HARGRAVE, DEVANS & DOYLE LLP
CLINTON SQUARE, P.O. BOX 1051
ROCHESTER, NY 14604
(716)263-1000
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 200,000 $24.50 4,900,000 $1,484.85
Common Stock Shares
par value
$.015 per
share
<PAGE>
* Estimated solely for purposes of calculating the 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
11, 1997 ($24.50) multiplied by the number of shares being registered
hereby.
In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this registration statement also covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit plan
described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been or will be 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, 1996 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, 1996.
2. The Company's Quarterly Report on Form 10-Q for its quarter
ended March 31, 1997, filed pursuant to Section 13(a) or 15(d)
of the Exchange Act.
3. All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since December 31, 1996.
4. The Company's Notice of Annual Meeting of Shareholders and
Proxy Statement for its Annual Meeting of Shareholders held on
May 15, 1997, filed pursuant to Section 14 of the Exchange Act.
5. 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 subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been
sold or which deregisters all securities remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the
date of the filing of such documents.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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 with 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 By-laws (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 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
<PAGE>
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 any litigation 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 (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. 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
<PAGE>
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 present
no more that 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 by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference to 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
<PAGE>
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 the expenses incurred or paid by a Director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such Director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
POWER OF ATTORNEY
The 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.
<PAGE>
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 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
16th day of June, 1997.
ACC Corp.
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 by the following persons in the
capacities and on the dates indicated.
s/ David K. Laniak
Date: June 16, 1997 --------------------------
David K. Laniak
Chairman of the Board, Chief Executive
Officer and
Director
s/ Arunas A. Chesonis
Date: June 16, 1997 --------------------------
Arunas A. Chesonis
President, Chief Operating Officer and
Director
s/ Michael R. Daley
Date: June 16, 1997 --------------------------
Michael R. Daley
Executive Vice President
and Chief Financial
Officer
(Principal Financial and
Accounting Officer)
s/ Hugh F. Bennett
Date: June 16, 1997 ---------------------------
Hugh F. Bennett, Director
s/ Willard Z. Estey
Date: June 16, 1997 ---------------------------
Hon. Willard Z. Estey, Director
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s/ Leslie D. Shroyer
Date: June 16, 1997 ---------------------------
Leslie D. Shroyer, Director
s/ Daniel D. Tessoni
Date: June 16, 1997 ---------------------------
Daniel D. Tessoni, Director
s/ Robert M. Van Degna
Date: June 16, 1997 ---------------------------
Robert M. Van Degna, Director
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Executive Compensation Committee of the Registrant's Board of
Directors, as the administrator of this Plan, has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Rochester, New York, on this 16th day of
June, 1997.
ACC CORP. CANADIAN EMPLOYEE
STOCK PURCHASE PLAN
By: s/ Hugh F. Bennett
--------------------------
Hugh F. Bennett, Chairman
Executive Compensation
Committee
By: s/ Daniel D. Tessoni
-------------------------
Daniel D. Tessoni, Member
Executive Compensation
Committee
By: s/ Robert M. Van Degna
---------------------------
Robert M. Van Degna, Member
Executive Compensation
Committee
<PAGE>
EXHIBIT INDEX
Exhibit
No. Exhibit Location
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4.1 ACC Corp. Canadian Employee
Stock Purchase Plan Filed herewith
5.1 Opinion of Sarah M. Ayer-Gudell, Filed herewith
as to legality of the Plan
and the Class A Common Stock.
23.1 Consent of Sarah M. Ayer- Included in
Gudell Opinion filed as
Exhibit 5.1
23.2 Consent of Arthur Andersen Filed herewith
LLP, Independent Public
Accountants
24.1 Power of Attorney See Part II of
Registration
Statement
<PAGE>
Exhibit 4.2
ACC CORP. CANADIAN EMPLOYEE STOCK PURCHASE PLAN
June 16, 1997
ARTICLE I - PURPOSE
1.01 PURPOSE
The ACC Corp. Canadian Employee Stock Purchase Plan ("Plan") is
intended to provide a method whereby employees (the "Canadian Employees")
of ACC TelEnterprises Ltd. (the "Canadian Company") will have an
opportunity to acquire a proprietary interest in ACC Corp. (the
"Company") through the purchase of shares of the Class A Common Stock of
the Company.
ARTICLE II - CERTAIN KEY DEFINITIONS
As used herein, the following terms shall have the following
meanings:
2.01 "BASE PAY"
Regular straight-time earnings, excluding payments for overtime,
shift premium, bonuses and other special payments, commissions and other
marketing incentive payments, compensation under the Company's Employee
Long Term Incentive Plan, expense reimbursements, and any similar compensation
excluded by the Committee in its sole discretion, provided that, for
employees receiving commission compensation only, Base Pay during an
Offering shall be deemed to be an amount fixed by the Committee or the
Canadian Company's Vice President -- Human Resources from time to time.
2.02 "COMMITTEE"
The Executive Compensation Committee of the Company's Board of
Directors, as constituted from time to time, which shall have the
responsibility for administering the Plan in all respects, in accordance
with the provisions of Article X hereof.
2.03 "EMPLOYEE"
Any person who is employed by the Canadian Company whose customary
employment is 20 hours or more per week.
2.04 "MARKET VALUE"
The fair market value of the Company's Class A Common Stock shall be
determined by its Closing Price on the NASDAQ
<PAGE>
National Market System ("NASDAQ") on the relevant date in question,
PROVIDED THAT, if on such date there was no trading in the Company's
Class A Common Stock reported on the NASDAQ System, then such fair market
value shall be determined by reference to such Closing Price on the next
preceding business day on which trading in the Company's Class A Common
Stock did occur on the NASDAQ System. (At any time during the life of
this Plan, should the Company's Class A Common Stock no longer trade on
the NASDAQ System, then the Committee shall determine the fair market
value of the Company's Class A Common Stock for the purposes of this Plan
in good faith and in the exercise of its best judgment.)
ARTICLE III - ELIGIBILITY AND PARTICIPATION
3.01 INITIAL ELIGIBILITY
Any Canadian Company Employee shall be eligible to participate in
the Plan.
3.02 COMMENCEMENT OF PARTICIPATION
An eligible Employee may become a participant by completing a
payroll deduction authorization form provided by the Canadian Company and
filing it with the Canadian Company's Vice President -- Human Resources
on or before the date set therefor by the Committee. Payroll deductions
for a participant shall commence on the applicable Offering Commencement
Date (as defined below) when his/her payroll deduction authorization
becomes effective or, in the case of the first Offering Commencement Date
under the Plan, July 15, 1997, and shall end on the last purchase date
applicable to any Offering in which a participant holds any options as
described below, unless sooner terminated as provided in Article VIII.
All employees participating in the Plan shall have the same rights and
privileges under this Plan except that the number of shares of the
Company's Class A Common Stock that each participant may purchase
hereunder will depend upon the level of such participant's compensation
and the amount of his/her payroll deductions authorized.
3.03 LEAVE OF ABSENCE
For purposes of participation in the Plan, an employee on leave of
absence shall be deemed to be an employee for the first six months of
such leave of absence. Such employee's employment shall be deemed to
have terminated at the close of business on the last day of such six
month period leave unless he/she shall have returned to regular full-time
or part-time employment (as the case may be) prior to the close of
business on such day. In certain circumstances, in the sole discretion
of the Committee or
<PAGE>
the Canadian Company's Vice President -- Human Resources, a participant
on leave of absence will continue to be considered an "employee" for
purposes of the Plan for a longer period. Termination by the Company of
any employee's leave of absence, other than by return to full-time or
part-time employment, shall terminate such employee's participation in
this Plan and rights to exercise any option hereunder in all respects.
ARTICLE IV - OFFERINGS
4.01 OFFERINGS
From time to time, the Committee shall set the date or dates upon
which one or more offerings of the Company's Class A Common Stock (the
"Offerings") shall be made under this Plan. As used herein, the term
"Offering Commencement Date" means either: (a) the date designated by
the Committee on which a particular Offering begins, or (b) in the case
of new employees hired subsequent to an Offering Commencement Date, on
the date such employee is granted the opportunity to participate in that
Offering by the Committee or the Canadian Company's Vice President --
Human Resources; and the term "Offering Termination Date" shall
mean the date designated by the Committee on which a particular Offering
ends. No option granted pursuant to an Offering shall have a term
exceeding 27 months in length.
ARTICLE V - PAYROLL DEDUCTIONS
5.01 AMOUNT OF DEDUCTION
At the time a participant files his/her payroll deduction
authorization, he/she shall elect to have deductions made from his/her
pay on each payday during the time he/she is a participant in this Plan
at a rate of up to 15% of his/her Base Pay in effect at the Offering
Commencement Date of such Offering. (In the case of a part-time hourly
employee, such employee's Base Pay during an Offering shall be determined
by multiplying his/her hourly rate of pay in effect on the Offering
Commencement Date by the number of regularly scheduled hours of work for
such employee during such Offering.)
5.02 PARTICIPANT'S ACCOUNT
All payroll deductions made for a participant shall be credited to
his/her account under the Plan. A participant may not make any separate
cash payments into his/her Plan account.
5.03 CHANGES IN PAYROLL DEDUCTIONS
<PAGE>
A participant may discontinue his/her participation in the Plan as
provided in Article VIII, but no other change can be made during an
Offering and, specifically, a participant may not alter the amount of
his/her payroll deductions for that Offering.
5.04 LEAVE OF ABSENCE
If a participant goes on a leave of absence, he/she shall have the
right to elect: (a) to withdraw the balance in his or her account; or
(b) to discontinue contributions to the Plan but remain a participant in
the Plan.
ARTICLE VI - GRANTING OF OPTIONS
6.01 NUMBER OF OPTION SHARES
On each Offering Commencement Date, a participant shall be deemed to
have been granted an option to purchase a maximum number of shares of the
Company's Class A Common Stock determined by: (i) multiplying the
percentage of his/her Base Pay which he/she has elected to have withheld
(not to exceed 15%), by (ii) the employee's Base Pay during the period of
the Offering (as converted to U.S. dollars in accordance with Section
7.02 below) and (iii) dividing that product by 85% of the Market Value of
the Company's Class A Common Stock on the applicable Offering
Commencement Date.
6.02 OPTION PRICE
The option price at which shares of the Company's Class A Common
Stock may be purchased under any option granted under this Plan shall be
the lower of:
(a) 85% of the Market Value of the Company's Class A Common Stock
on the applicable Offering Commencement Date (the "Base Option Price");
or
(b) 85% of the Market Value of the Company's Class A Common Stock
on the date shares of the Company's Class A Common Stock are purchased
through the exercise of an option (the "Alternate Option Price").
ARTICLE VII-EXERCISE OF OPTION
7.01 AUTOMATIC EXERCISE
At the end of each payroll period, each participant shall have
deducted from his/her pay the amount authorized. Such amounts shall be
held for the credit of the participant by the Canadian Company as part of
its general funds for the purchase of shares hereunder and shall not
accrue any interest.
<PAGE>
On the last business day of each three-month period during the term
of an Offering (a "Quarter"), a participant will automatically be deemed
to have exercised his/her option to purchase, at the lower of the Base
Option Price or the Alternate Option Price, the maximum number of full
shares of the Company's Class A Common Stock that may be purchased with
the amount deducted from the participant's Base Pay during that Quarter,
together with any excess funds from preceding Quarters (but not in excess
of the number of shares for which options have been granted to the
participant pursuant to Article VI). As promptly as possible following
each quarterly purchase date, the Canadian Company will forward to the
Company the funds to purchase shares under the Plan. Any excess funds
not expended in the purchase of whole shares of the Company's Class A
Common Stock on any particular purchase date shall be retained in the
participant's account and carried forward and applied to the purchase of
shares on the next subsequent purchase date. Any excess of funds not
expended on the last purchase date applicable to any Offering in which a
participant holds any options will be returned to the participant.
With respect to any participant who is subject to the restrictions
imposed by Section 16 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), he/she must hold all shares received upon the
exercise of any option under this Plan for a minimum of six months
following (a) the date the option price is determined (as described
above) or (b) the date such shares are distributed to him/her, whichever
is later, before disposing of any such shares.
7.02 CURRENCY CONVERSION
Canadian dollar amounts contributed by a Canadian employee to his or
her account established pursuant to the Plan will be converted by the
Canadian Company to U.S. dollars at the rate in effect immediately prior
to a quarterly purchase date, as quoted by the Canadian Company's bank.
7.03 TRANSFERABILITY OF OPTIONS
During a participant's lifetime, options held by such participant
shall be exercisable only by that participant.
7.04 DELIVERY OF STOCK CERTIFICATES
As promptly as practicable after the date each Quarter on which
shares are purchased pursuant to an Offering, the Company will cause its
Transfer Agent to deliver to each participant the certificate(s)
representing the shares purchased upon exercise of his/her option(s). No
fractional shares will be issued under the Plan.
<PAGE>
ARTICLE VIII - WITHDRAWAL
8.01 GENERAL
A participant may withdraw payroll deductions credited to his/her
Plan account at any time by giving written notice to the Canadian
Company's Vice President -- Human Resources. All of the participant's
payroll deductions credited to his/her account will be paid to him/her
promptly after receipt of such notice of withdrawal, without interest, no
further payroll deductions will be made from his/her pay and such notice
may be deemed by the Company as a notice of the participant's termination
of participation in the Plan. The Company may, at its option, treat any
attempt by a participant to borrow on the security of his/her accumulated
payroll deductions as an election to withdraw such deductions.
8.02 EFFECT ON SUBSEQUENT PARTICIPATION
A participant's termination of participation in the Plan will not
have any effect upon his/her subsequent eligibility to participate in the
Plan in accordance with its terms or in any similar plan which may
hereafter be adopted by the Company; PROVIDED, HOWEVER, that any
participant subject to the restrictions imposed by Section 16 of the
Exchange Act shall not be permitted to re-enroll as a participant in the
Plan for at least six months following the date of any termination of
participation hereunder, and shall be subject to such other restrictions
on participation as may be required from time to time by the relevant
rules and regulations of the Securities and Exchange Commission (the
"SEC").
8.03 TERMINATION OF EMPLOYMENT
Upon termination of the participant's employment for any reason,
including retirement (but excluding death while in the employ of the
Canadian Company) or continuation of a leave of absence for a period
beyond 90 days, the payroll deductions credited to his/her account will
be returned, without interest, to him/her, or, in the case of his/her
death subsequent to termination of his/her employment, to the person or
persons entitled thereto under Article XI.
8.04 TERMINATION OF EMPLOYMENT DUE TO DEATH
Upon termination of the participant's employment due to his/her
death, his/her beneficiary (as defined in Article XI) will receive the
accumulated payroll deductions credited to the participant's account
under the Plan.
ARTICLE IX - PLAN SHARES
<PAGE>
9.01 MAXIMUM SHARES
The maximum number of shares which shall be issued under the Plan,
subject to adjustment upon changes in capitalization of the Company as
provided in Article XI, shall be 200,000 shares. Such shares may be
treasury shares or authorized and unissued shares as the Committee may
determine in its discretion.
9.02 PARTICIPANT'S INTEREST IN SHARES
The participant will have no interest in any shares of the Company's
Class A Common Stock covered by any option granted hereunder until such
option has been exercised.
9.03 REGISTRATION OF SHARES
Shares of the Company's Class A Common Stock to be delivered to a
participant hereunder will be registered in the name of the participant,
or, if the participant so directs by written notice to the Canadian
Company's Vice President -- Human Resources prior to the issuance of any
shares following a purchase date, in the names of the participant and one
such other person as may be designated by the participant, as joint
tenants with rights of survivorship or as tenants by the entirety, to the
extent permitted by applicable law.
9.04 RESTRICTIONS ON EXERCISE
The Committee may, in its discretion, require as conditions to the
exercise of any option that a Registration Statement under the Securities
Act of 1933, as amended, with respect to the shares of Class A Common
Stock reserved for issuance upon the exercise of the option shall be
effective, and/or that the participant shall represent at the time of
purchase, in form and substance satisfactory to the Company, that it is
his/her intention to purchase the shares for investment and not for
resale or distribution.
ARTICLE X - ADMINISTRATION
10.01 DUTIES OF THE COMMITTEE
The Committee shall administer the Plan in all respects. Subject to
the express provisions of the Plan, the Committee shall have full
authority and discretion to: (a) amend or modify the Plan and to
determine the terms and conditions of all Offerings under the Plan; (b)
interpret and construe any and all provisions of the Plan; (c) prescribe
rules and regulations for the administration of the Plan; and (d) make
all other determinations deemed necessary or advisable for its
administration. The Committee's determination on the foregoing matters
shall be
<PAGE>
conclusive. The Committee may not, however, make any changes to the Plan
that would materially and adversely affect any option previously granted
without the consent of the affected optionee. No member of the Committee
shall be eligible to purchase stock under the Plan.
ARTICLE XI - MISCELLANEOUS
11.01 DESIGNATION OF BENEFICIARY
A participant may file a written designation of a beneficiary who is
to receive any stock or cash. Such designation of beneficiary may be
changed by the participant at any time by written notice to the Canadian
Company's Vice President -- Human Resources. Upon the death of a
participant and upon receipt by the Canadian Company of proof of identity
and existence at the participant's death of a beneficiary validly
designated by him/her under the Plan, the Company shall deliver or cause
to be delivered such stock or cash to such beneficiary. In the event of
the death of a participant and in the absence of a beneficiary validly
designated under the Plan who is living at the time of such participant's
death, the Company shall deliver or cause to be delivered such stock or
cash to the executor or administrator of the estate of the participant,
or if no such executor or administrator has been appointed (to the
knowledge of the Canadian Company), the Canadian Company, in its
discretion, may deliver or cause to be delivered such stock or cash to
the spouse or to any one or more dependents of the participants as the
Canadian Company may designate. No beneficiary shall, prior to the death
of the participant by whom he/she has been designated, acquire any
interest in the stock or cash credited to the participant under the Plan.
11.02 TRANSFERABILITY
Neither payroll deductions credited to a participant's account nor
any rights with regard to the exercise of an option or to receive stock
under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the participant other than by will or the laws
of descent and distribution. Any such attempted assignment, transfer,
pledge or other disposition shall be without effect, except that the
Canadian Company may treat such act as an election to withdraw funds in
accordance with Article VIII.
11.03 USE OF FUNDS
All payroll deductions received or held by the Canadian Company
under this Plan may be used by the Canadian Company for any corporate
purpose and the Canadian Company shall not be obligated to segregate such
payroll deductions.
<PAGE>
11.04 ADJUSTMENT UPON CHANGES IN CAPITALIZATION
(a) If, while any options are outstanding, the outstanding shares
of Class A Common Stock of the Company have increased, decreased, changed
into, or been exchanged for a different number or kind of shares or
securities of the Company through reorganization, merger,
recapitalization, reclassification, stock split, reverse stock split or
similar transaction, appropriate and proportionate adjustments shall be
made by the Committee in the number and kind of shares which are subject
to purchase under outstanding options and on the option exercise price or
prices applicable to such outstanding options. In addition, in any such
event, the number and kind of shares which may be offered in the
Offerings shall also be proportionately adjusted.
(b) Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving
corporation, or upon a sale of substantially all of the assets or stock
of the Company to another corporation, the holder of each option then
outstanding under the Plan will thereafter be entitled to receive, no
later than at the Offering Termination Date applicable to each Offering
then outstanding hereunder, upon the exercise of such option and for each
share as to which such option shall be exercised, as nearly as reasonably
may be determined the cash, securities or property which a holder of one
share of the Company's Class A Common Stock was entitled to receive upon
and at the time of such transaction. The Board of Directors shall take
such steps in connection with any such transaction as it shall deem
necessary to assure that the provisions of this Section shall thereafter
be applicable, as nearly as reasonably may be determined, in relation to
the said cash, securities or property as to which such holder of such
option would thereafter be entitled to receive.
11.05 EFFECTIVE DATE
The Plan shall become effective as of July 1, 1997.
11.06 AMENDMENT AND TERMINATION OF PLAN
(a) The Board of Directors and the Committee reserve the right to
amend or terminate this Plan at any time, provided, however, that they
may not increase the maximum number of shares authorized for issuance
under the Plan, increase the maximum number of shares that may be
purchased under the Plan by an individual participant, reduce the
applicable option price per share or otherwise make any material change
that would cause the Plan not to meet the requirements of the SEC's rules
and regulations under
<PAGE>
Section 16 of the Exchange Act as promulgated from time to time.
(b) Notwithstanding the foregoing, this Plan and all rights of
participants hereunder shall terminate on the earlier of: (i) the date
as of which participants have exercised options to purchase a number of
shares equal to or greater than the number of shares authorized for
issuance hereunder; or (ii) the date as of which the Committee or the
Board of Directors terminates the Plan. Upon termination, all payroll
deductions shall cease and all amounts credited to participants' accounts
shall be equitably applied to the purchase of the shares then available
hereunder and all funds accumulated hereunder but not utilized to
purchase shares will be refunded, without interest.
11.07 NO EMPLOYMENT RIGHTS
The Plan does not, directly or indirectly, create any right for the
benefit of any employee or class of employees to purchase any shares
under the Plan, or create in any employee or class of employees any right
with respect to continuation of employment by the Company or the Canadian
Company, and it shall not be deemed to interfere in any way with the
right of the Company or the Canadian Company to terminate, or otherwise
modify, an employee's employment at any time.
11.08 EFFECT OF PLAN
The provisions of the Plan shall, in accordance with its terms, be
binding upon, and inure to the benefit of, all successors of each
employee participating in the Plan, including, without limitation, such
employee's estate and the executors, administrators or trustees thereof,
heirs and legatees, and any receiver, trustee in bankruptcy or
representative of creditors of such employee.
11.09 GOVERNING LAW
The law of the State of Delaware will govern all matters relating to
this Plan, without giving effect to principles of conflict of laws, and
except to the extent it is superseded by the laws of the United States.
11.10 PLAN EXPENSES
The Company shall bear all expenses incurred in connection with the
administration of the Plan, including all registration fees and Transfer
Agent charges.
<PAGE>
Exhibit 5.1
June 17, 1997
ACC Corp.
400 West Avenue
Rochester, New York 14611
Ladies and Gentlemen:
I am Corporate Counsel of ACC Corp., a Delaware corporation
("ACC").
With respect to the Registration Statement on Form S-8 (the
"Registration Statement") filed today by ACC with the Securities and
Exchange Commission for the purpose of registering under the Securities
Act of 1933, as amended, 200,000 shares of Class A Common Stock, $.015
par value, of ACC (the "Shares") to be purchased by participants under
the Canadian Employee Stock Purchase Plan (the "Plan"), I have examined
originals or copies, certified or otherwise identified to my
satisfaction, of such corporate records, certificates, and other
documents and instruments, and such questions of law, as I have
considered necessary or desirable for the purpose of this opinion.
Based on the foregoing, I am of the opinion that the Shares will,
when the Registration Statement has become effective and the Shares have
been issued and delivered as contemplated in the Plan, be legally issued,
fully paid, and non-assessable.
I consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Sarah M. Ayer-Gudell
Corporate Counsel
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January
24, 1997, included in ACC Corp.'s Form 10-K for the year ended December
31, 1996 and all references to our Firm included in this registration
statement.
s/ Arthur Andersen LLP
Rochester, New York
June 13, 1997
