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As filed with the Securities and Exchange Commission on June 30, 1994
Registration Statement No. 33-66972*
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ALC COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 38-2643582
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
30300 TELEGRAPH ROAD
SUITE 350
BINGHAM FARMS, MICHIGAN 48025-4510
(313) 647-4060
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ALC COMMUNICATIONS CORPORATION 1990 STOCK OPTION PLAN
(Full title of the plan)
CONNIE R. GALE, VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
ALC Communications Corporation
30300 Telegraph Road, Suite 350
Bingham Farms, Michigan 48025-4510
(313) 647-4060
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of all communications to:
JANET G. WITKOWSKI, ESQUIRE
Jaffe, Raitt, Heuer & Weiss
Professional Corporation
One Woodward Avenue, Suite 2400
Detroit, Michigan 48226
(313) 961-8380
* This Post Effective Amendment also relates to Registration No. 33-39649.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated
herein by reference:
(a) The Corporation's latest annual report filed pursuant to
Section 13 or 15(d) of the Exchange Act or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act that contains audited
financial statements for the Corporation's latest fiscal year for
which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report or the prospectus referred to in (a) above.
(c) The information concerning the Company's Common Stock set
forth under the caption "Description of Capital Stock" in Registration
Statement No. 33-57146 filed by the Company with the Commission.
In addition, all documents 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
Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from the date of filing of such documents.
Any statement contained in the Prospectus or in a document
incorporated, or deemed to be incorporated, by reference herein shall be deemed
to be modified or superseded for purposes of the Prospectus to the extent that
a statement contained herein or in any subsequently filed document which also
is, or is deemed to be, incorporated by reference herein modifies or supersedes
such statement. Except as so modified or superseded, such statement shall not
be deemed to constitute a part of the Prospectus or registration statement.
ITEM 4. DESCRIPTION OF COMMON STOCK
The information concerning the Company's Common Stock set forth under
the caption "Description of Capital Stock" in Registration Statement No.
33-57146 filed by the Company with the Commission is incorporated herein by
reference.
ITEM 5. EXPERTS
The consolidated financial statements and financial statement schedules
of ALC Communications Corporation appearing in ALC Communications Corporation's
Annual Report (Form 10-K) for the year ended December 31, 1993, have been
audited by Ernst & Young, independent auditors, as set forth in their report
thereon included and incorporated herein by reference. Such financial
statements and financial statement schedules are, and audited financial
statements and financial statement schedules to be included in subsequently
filed documents will be, incorporated herein in reliance upon the reports of
Ernst & Young pertaining to such financial statements (to the extent covered by
consents filed with the Securities and Exchange Commission) given upon the
authority of such firm as experts in accounting and auditing.
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ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the exhibit index filed as
part of this registration statement.
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SIGNATURES
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 the City of Bingham Farms, State of Michigan, on the 7th
day of June, 1994.
ALC COMMUNICATIONS CORPORATION,
Registrant
By: /s/ John M. Zrno
---------------------------------------
John M. Zrno, President
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 date indicated.
Dated: June 7, 1994 /s/ John M. Zrno
-----------------------------------------
John M. Zrno, Director, President
and Chief Executive Officer
Dated: June 7, 1994 Richard D. Irwin*
----------------------------------------
Richard D. Irwin, Chairman of the
Board of Directors
Dated: June 7, 1994 Marvin C. Moses*
----------------------------------------
Marvin C. Moses, Executive
Vice President, Chief Financial
Officer and Director
Dated: June 7, 1994 William H. Oberlin*
----------------------------------------
William H. Oberlin, Executive
Vice President, Chief Operating
Officer and Director
Dated: June 7, 1994 Richard J. Uhl*
----------------------------------------
Richard J. Uhl, Director
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Dated: June 7, 1994 Michael E. Faherty*
----------------------------------------
Michael E. Faherty, Director
Dated: June 7, 1994 Marilyn M. Lesnau*
----------------------------------------
Marilyn M. Lesnau, Vice President and
Controller (Chief Accounting Officer)
Dated: June 7, 1994 *By: /s/ John M. Zrno
----------------------------------
Attorney-in-Fact
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ALC COMMUNICATIONS CORPORATION
EXHIBIT INDEX
Incorporated Page
Exhibit Herein by Filed Number
No. Description Reference to: Herewith Herein
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24.1 Power of Attorney X
99.1 ALC Communications X
Corporation 1990 Stock
Option Plan, as amended
and restated effective
May 12, 1994
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EXHIBIT 24.1
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes John M. Zrno and
Marvin C. Moses, or either of them, to execute in the name of each such person
and to file any amendments to Registration Statements Nos. 33-39649 and
33-66972 necessary or advisable to enable the Registrant to comply with the
Securities Act of 1933 and any rules, regulations and requirements of the
Securities and Exchange Commission in respect thereof, which amendment(s) may
make such other changes in the Registration Statement as John M. Zrno or Marvin
C. Moses deems appropriate.
/s/ John M. Zrno
----------------------------------------------
John M. Zrno
President, Chief Executive Officer
and Director
/s/ Richard D. Irwin
----------------------------------------------
Richard D. Irwin
Chairman of the Board of Directors
/s/ Marvin C. Moses
----------------------------------------------
Marvin C. Moses
Executive Vice President,
Chief Financial Officer
and Director
/s/ William H. Oberlin
----------------------------------------------
William H. Oberlin
Executive Vice President,
Chief Operating Officer
and Director
/s/ Richard J. Uhl
----------------------------------------------
Richard J. Uhl
Director
/s/ Michael E. Faherty
----------------------------------------------
Michael E. Faherty
Director
/s/ Marilyn M. Lesnau
----------------------------------------------
Marilyn M. Lesnau
Vice President and Controller
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EXHIBIT 99.1
ALC COMMUNICATIONS CORPORATION
1990 STOCK OPTION PLAN
AS AMENDED AND RESTATED EFFECTIVE AS OF MAY 12, 1994
ARTICLE I
PURPOSE AND ADOPTION OF THE PLAN
1.01 PURPOSE. The purpose of the ALC Communications Corporation
1990 Stock Option Plan is to provide certain key employees of ALC and its
Subsidiaries with an additional incentive to promote the financial success of
ALC and to provide an incentive which ALC may use to induce able persons to
enter into or remain in the employment of ALC or a Subsidiary.
1.02 ADOPTION AND TERM. The Plan became effective as of May 10,
1990 following approval by stockholders of ALC. The Plan as amended and
restated herein is effective as of May 12, 1994 and will remain in effect until
December 31, 2000 unless earlier terminated or abandoned by action of the
Board; provided, however, that no Incentive Stock Option may be granted after
May 9, 2000.
ARTICLE II
DEFINITIONS
2.01 ADMINISTRATOR means the group of persons having authority to
administer the Plan pursuant to Section 3.01.
2.02 ALC means ALC Communications Corporation, a Delaware
corporation.
2.03 AWARD means any one or combination of Non-Qualified Stock
Options, Incentive Stock Options, Stock Appreciation Rights, or any other award
made under the terms of the Plan.
2.04 AWARD AGREEMENT means a written agreement between ALC and
Participant or a written acknowledgment from ALC specifically setting forth the
terms and conditions of an Award granted under the Plan.
2.05 AWARD PERIOD means, with respect to an Award, the period of
time set forth in the Award Agreement during which specified conditions set
forth in the Award Agreement must be satisfied.
2.06 BENEFICIARY means (a) an individual, trust or estate who or
which, by will or by operation of the laws of descent and distribution,
succeeds to the rights and obligations of the Participant under the Plan and
Award Agreement upon the Participant's death; or (b) an individual who, by
designation of the Participant, succeeds to the rights and obligations of the
Participant under the Plan and Award Agreement upon the Participant's death.
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2.07 BOARD means the Board of Directors of ALC.
2.08 CHANGE OF CONTROL EVENT means (a) an event or series of events
by which any Person or other entity or group (as such term is used in Section
13(d) and 14(d) of the Exchange Act) of Persons or other entities acting in
concert as a partnership or other group (a "Group of Persons") (other than
Persons who are, or Groups of Persons entirely made up of, (i) management
personnel of ALC or its wholly-owned Subsidiary, Allnet Communication Services,
Inc. ("Allnet") or (ii) any affiliates of any such management personnel) shall,
as a result of a tender or exchange offer or offers, an open market purchase or
purchases, a privately negotiated purchase or purchases or otherwise, become
the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of 40% or more of the combined voting power of the then outstanding
voting stock of ALC or Allnet; (b) ALC or Allnet consolidates with, or merges
with or into, another Person (other than ALC or Allnet), or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all of
its assets to any Person (other than ALC or Allnet), or any Person (other than
ALC or Allnet) consolidates with, or merges with or into, ALC or Allnet, in any
such event pursuant to a transaction in which the outstanding voting stock of
ALC or Allnet is converted into or exchanged for cash, securities or other
Property; (c) during any consecutive two-year period, individuals who at the
beginning of such period constituted either the Board or (if ALC does not own
all of the voting stock of Allnet) the Board of Directors of Allnet (together
with any new directors whose election by such Board of Directors or whose
nomination for election by the stockholders of ALC or Allnet, as the case may
be, was approved by a vote of 66-2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board or the Board of Directors of Allnet then in
office; or (d) any liquidation or dissolution of ALC or Allnet (other than a
liquidation of Allnet into ALC that is not otherwise a Change of Control
Event).
2.09 CODE means the Internal Revenue Code of 1986, as amended.
References to a section of the Code shall include that section and any
comparable section or sections of any future legislation that amends,
supplements or supersedes that section.
2.10 COMPANY COMMON STOCK means the Common Stock of ALC, par value
$.01 per share.
2.11 DATE OF GRANT means the date designated by the Administrator
as the date as of which it grants an Award, which shall not be earlier than the
date on which the Administrator approves the granting of such Award.
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2.12 DIRECTOR means a member of the Board of Directors of ALC or
its Subsidiaries.
2.13 EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
2.14 EXERCISE PRICE means, with respect to a Stock Appreciation
Right, the amount established by the Administrator, in accordance with Section
7.03 hereunder, and set forth in the Award Agreement, which is to be subtracted
from the Fair Market Value on the date of exercise in order to determine the
amount of the Incremental Value to be paid to the Participant.
2.15 EXPIRATION DATE means the date specified in an Award Agreement
as the expiration date of such Award.
2.16 FAIR MARKET VALUE means, on any given date, the average of the
highest and lowest selling price for the Company Common Stock as quoted on
NASDAQ/NMS or NASDAQ (whichever is applicable) for the given date or (if no
sales of the Company Common Stock shall be reported for the given date) for the
first date prior to the given date for which sales of the Company Common Stock
shall be quoted; if the Company Common Stock is not eligible for quotation on
NASDAQ/NMS or NASDAQ at the time of any Award hereunder, the Fair Market Value
shall be the quoted selling price for the Company Common Stock available for
the most recent given date in "The Pink Sheets." Notwithstanding the
foregoing, if the Company Common Stock is, on the given date, listed on a
national securities exchange, the Fair Market Value shall be the average of the
highest and lowest selling price for the given date, or the most recent date
upon which a sale occurred.
2.17 INCENTIVE STOCK OPTION means a stock option described in
Section 422 of the Code.
2.18 INCREMENTAL VALUE has the meaning given such term in Section
7.01 of the Plan.
2.19 NON-QUALIFIED STOCK OPTION means a stock option which is not an
Incentive Stock Option.
2.20 OFFICER means a president, vice president, treasurer,
secretary, controller, and any other person who performs functions
corresponding to the foregoing officers for ALC, any member of the Board or the
board of directors of a Subsidiary of ALC or any person performing similar
functions with respect to ALC, and any other participant who is deemed to be an
officer or director of ALC or a Subsidiary of ALC for purposes of Section 16 of
the Exchange Act and the rules thereunder, as currently in effect or as amended
from time to time.
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2.21 OPTIONS mean all Non-Qualified Stock Options and Incentive
Stock Options granted at any time under the Plan.
2.22 PARTICIPANT shall have the meaning set forth in Section 5.01.
2.23 PLAN means the ALC Communications Corporation 1990 Stock
Option Plan, as described herein and as may be amended from time to time.
2.24 PURCHASE PRICE, with respect to options, shall have the meaning
set forth in Section 6.02.
2.25 RULE 16B-3 means Rule 16b-3 promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act, as currently in
effect and as it may be amended from time to time, and any successor rule.
2.26 STOCK APPRECIATION RIGHT means an Award granted in accordance
with Article VII.
2.27 SUBSIDIARY shall have the meaning set forth in Section 424(f)
of the Code.
2.28 TERMINATION OF EMPLOYMENT means the voluntary or involuntary
termination of a Participant's employment with ALC or a Subsidiary for any
reason, including death, disability, retirement or as the result of the
divestiture of the Participant's employer or any other similar transaction in
which the Participant's employer ceases to be ALC or one of the Subsidiaries of
ALC. Whether an authorized leave of absence or absence on military or
government service, absence due to disability, or absence for any other reason
shall constitute Termination of Employment shall be determined in each case by
the Administrator in its sole discretion.
ARTICLE III
ADMINISTRATION
3.01 ADMINISTRATION. The Administrator of the Plan shall be a
committee of two or more Directors with authority to act as provided in Rule
16b-3 and shall be elected or appointed by the Board. The members of the
committee shall meet the "disinterested person" requirements of Rule
16b-3(c)(2)(i). The Administrator shall administer the Plan in accordance with
this provision and shall have the sole discretionary authority to interpret the
Plan, to establish and modify administrative rules for the Plan, to impose such
conditions and restrictions on Awards as it determines appropriate, to cancel
Awards (including those made pursuant to other plans of ALC) and to substitute
new options (including options granted under other plans of ALC) with the
consent of the recipient, and to take such steps in connection with the Plan
and Awards granted thereunder as it may deem necessary or advisable. The
Administrator may, with respect to Participants who
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are not Officers, delegate such of its powers and authority under the Plan as
it deems appropriate to designated officers or employees of ALC.
3.02 INDEMNIFICATION. Members of the Administrator shall be
entitled to indemnification and reimbursement from ALC for any action or any
failure to act in connection with service as Administrator to the full extent
provided for or permitted by the certificate of incorporation or bylaws of ALC
or by any insurance policy or other agreement intended for the benefit of
officers, directors or employees of ALC or by any applicable law.
ARTICLE IV
COMPANY COMMON STOCK ISSUABLE PURSUANT TO THE PLAN
4.01 SHARES ISSUABLE. Shares to be issued under the Plan may be
authorized and unissued shares or issued shares which have been reacquired by
ALC. Except as provided in Section 4.03, the Awards granted under the Plan
shall be limited so that the sum of the following shall never exceed 5,000,000
shares of Company Common Stock: (i) all shares which shall be issued upon the
exercise of outstanding Options or other Awards granted under the Plan, (ii)
all shares for which payment of Incremental Value shall be made by reason of
the exercise of Stock Appreciation Rights at any time granted under the Plan,
and (iii) the number of shares otherwise issuable under an Award which are
applied by ALC to payment of the withholding or tax liability discussed in
Section 8.11. In addition, up to 822,884 shares remaining available for grant
as of June 6, 1990 (including shares presently subject to outstanding options,
in the event such options terminate without being exercised) under the terms of
the ALC Communications Corporation 1986 Option Plan shall be available for
issuance under this Plan.
4.02 SHARES SUBJECT TO TERMINATED AWARDS. In the event that any
Award at any time granted under the Plan shall be surrendered to ALC, be
terminated or expire before it shall have been fully exercised, or an award of
Stock Appreciation Rights is exercised for cash, then all shares formerly
subject to such Award as to which such Award shall not have been exercised
shall be available for any Award subsequently granted in accordance with the
Plan. Shares of Company Common Stock subject to Options, or portions thereof,
which have been surrendered in connection with the exercise of tandem Stock
Appreciation Rights shall not be available for subsequent Awards under the
Plan, and shares of Company Common Stock issued in payment of such Stock
Appreciation Rights shall be charged against the number of shares of Company
Common Stock available for the grant of Awards. Any shares of Company Common
Stock issued by ALC pursuant to its assumption or substitution of outstanding
grants from acquired companies shall not reduce the number of shares available
for Awards under this Plan unless issued under this Plan.
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4.03 ADJUSTMENTS TO REFLECT CAPITAL CHANGES.
(a) RECAPITALIZATION. The number and kind of shares
subject to outstanding Awards, the Purchase Price or Exercise Price
for such shares, and the number and kind of shares available for
Awards subsequently granted under the Plan shall be appropriately
adjusted to reflect any stock dividend, stock split combination or
exchange of shares, merger, consolidation or other change in
capitalization with a similar substantive effect upon the Plan or the
Awards granted under the Plan. The Administrator shall have the power
to determine the amount of the adjustment to be made in each case.
(b) SALE OR REORGANIZATION. After any reorganization,
merger or consolidation in which ALC is a surviving corporation, each
Participant shall, at no additional cost, be entitled upon exercise of
an Award to receive (subject to any required action by stockholders),
in lieu of the number of shares of Company Common Stock receivable or
exercisable pursuant to such Award, a number and class of shares of
stock or other securities to which such Participant would have been
entitled pursuant to the terms of the reorganization, merger or
consolidation if, at the time of such reorganization, merger or
consolidation, such Participant had been the holder of record of a
number of shares of stock equal to the number of shares receivable or
exercisable pursuant to such Award. Comparable rights shall accrue to
each Participant in the event of successive reorganizations, mergers
or consolidations of the character described above.
(c) DISSOLUTION OR CONSOLIDATION. Unless otherwise
stated in the Award Agreement and subject to such other terms and
conditions as the Administrator may establish in the Award Agreement,
in the event of the dissolution or liquidation of ALC, or any merger
or consolidation in which ALC is not the surviving corporation,
irrespective of whether or not an Award is then exercisable, the
Participant shall have the right, immediately prior to such
dissolution, liquidation or consolidation, to exercise in full any
unexpired Award to the extent not theretofore exercised or terminated;
provided, however, that any Stock Appreciation Right so exercised must
have a Date of Grant at least six months prior to the date of
exercise. All Options and Stock Appreciation Rights shall terminate
upon the dissolution, liquidation, merger or consolidation.
(d) OPTIONS TO PURCHASE STOCK OF ACQUIRED COMPANIES.
After any reorganization, merger or consolidation in which ALC or a
Subsidiary of ALC shall be a surviving corporation, the Administrator
may grant substituted Options under the provisions of the Plan,
pursuant to Section 424 of the Code, replacing old options granted
under a plan of another party to the reorganization, merger or
consolidation, where such party's stock may no longer be issued
following such merger or consolidation. The foregoing adjustments and
manner of application of the foregoing provisions shall be determined
by the Administrator in its sole
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discretion. Any adjustments may provide for the elimination of any
fractional shares which might otherwise have become subject to any
Awards.
ARTICLE V
PARTICIPATION
ELIGIBLE EMPLOYEES. Participants in the Plan shall be the
Officers who are employees of ALC or a Subsidiary of ALC and other employees of
ALC or a Subsidiary of ALC having managerial, supervisory or similar
responsibilities or who are key administrative employees or sales managers, and
who are not covered by any collective bargaining agreement binding on such
person's employer, as the Administrator, in its sole discretion, may designate
from time to time. The Administrator's designation of a Participant in any
year shall not require the Administrator to designate such person to receive
Awards in any other year. The Administrator shall consider such factors as it
deems pertinent in selecting Participants and in determining the type and
amount of their respective Awards.
ARTICLE VI
OPTION AWARDS
6.01 POWER TO GRANT OPTIONS. The Administrator may grant, to such
Participants as the Administrator may select, Options entitling the Participant
to purchase Company Common Stock from ALC in such quantity, at such price, and
on such terms and subject to such conditions, not inconsistent with the terms
of this Plan, as may be established by the Administrator. The terms of any
Option granted under this Plan shall be set forth in an Award Agreement.
Notwithstanding the foregoing, Options granted to Officers shall not be
exercisable for a period of at least six months from the Date of Grant, except
that Options which are granted to Officers which are replacements for existing
options previously granted under this Plan or another plan of ALC may become
exercisable in accordance with the terms of the previously granted option.
6.02 PURCHASE PRICE OF OPTIONS. The Purchase Price of each share
of Company Common Stock which may be purchased upon exercise of any Option
granted under the Plan shall be determined by the Administrator, provided that
such Purchase Price shall not be less than the Fair Market Value on the Date of
Grant, and provided further that the Purchase Price for shares of Company
Common Stock purchased pursuant to Stock Options designated by the
Administrator as Incentive Stock Options shall be equal to or greater than the
Fair Market Value on the Date of Grant as required under Section 422 of the
Code.
6.03 DESIGNATION OF INCENTIVE STOCK OPTIONS. Except as otherwise
expressly provided in the Plan, the Administrator may designate, at the Date of
Grant of each Option, that the Option is an Incentive Stock Option under
Section 422 of the Code.
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(a) INCENTIVE STOCK OPTION SHARE LIMITATION. No
Participant may be granted Incentive Stock Options under the Plan (or
any other plans of ALC) which would result in stock with an aggregate
Fair Market Value (measured on the Date of Grant) of more than
$100,000 first becoming exercisable in any one calendar year, or which
would entitle such Participant to purchase a number of shares greater
than the maximum number permitted by Section 422 of the Code as in
effect on the Date of Grant.
(b) OTHER INCENTIVE STOCK OPTION TERMS. Whenever
possible, each provision in the Plan and in every Option granted under
this Plan which is designated by the Administrator as an Incentive
Stock Option shall be interpreted in such a manner as to entitle the
Option to the tax treatment afforded by Section 422 of the Code. If
any provision of this Plan or any Option designated by the
Administrator as an Incentive Stock Option shall be held not to comply
with requirements necessary to entitle such Option to such tax
treatment, then (i) such provision shall be deemed to have contained
from the outset such language as shall be necessary to entitle the
Option to the tax treatment afforded under Section 422 of the Code,
and (ii) all other provisions of this Plan and the Award Agreement
shall remain in full force and effect. If any agreement covering an
Option designated by the Administrator to be an Incentive Stock Option
under this Plan shall not explicitly include any terms required to
entitle such Incentive Stock Option to the tax treatment afforded by
Section 422 of the Code, all such terms shall be deemed implicit in
the designation of such Option and the Option shall be deemed to have
been granted subject to all such terms.
6.04 RIGHTS AS A STOCKHOLDER. The Participant or any transferee of
an Option pursuant to Section 8.04 or Section 8.12 shall have no rights as a
stockholder with respect to any shares of Company Common Stock covered by an
Option until the Participant or transferee shall have become the holder of
record of any such shares, and no adjustment shall be made for dividends and
cash or other property or distributions or other rights with respect to any
such shares of Company Common Stock for which the record date is prior to the
date on which the Participant or a transferee of the Option shall have become
the holder of record of any such shares covered by the Option.
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.01 POWER TO GRANT STOCK APPRECIATION RIGHTS. The Administrator
is authorized to grant to any Participant, on such terms established by the
Administrator on or prior to the Date of Grant and subject to and not
inconsistent with the provisions of this Plan, the right to receive the payment
from ALC, payable as provided in Section 7.04, of an amount equal to the
Incremental Value of the Stock Appreciation Rights, which shall be an amount
equal to the remainder derived from subtracting (i) the Exercise Price for the
right established in the Award Agreement from (ii) the Fair Market Value of a
share
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of Company Common Stock on the date of exercise. The terms of any Stock
Appreciation Right granted under the Plan shall be set forth in an Award
Agreement.
7.02 TANDEM STOCK APPRECIATION RIGHTS. The Administrator may grant
to any Participant a Stock Appreciation Right consistent with the provisions of
this Plan covering any share of Company Common Stock which is, at the Date of
Grant of the Stock Appreciation Right, also covered by an Option granted to the
same Participant, either prior to or simultaneously with the grant to such
Participant of the Stock Appreciation Right, provided: (i) any Option covering
any share of Company Common Stock shall expire and not be exercisable upon the
exercise of any Stock Appreciation Right with respect to the same share; (ii)
any Stock Appreciation Right covering any share of Company Common Stock shall
not be exercisable upon the exercise of any related Option with respect to the
same share; and (iii) an Option and Stock Appreciation Right covering the same
share of Company Common Stock may not be exercised simultaneously.
7.03 EXERCISE PRICE. The Exercise Price established under any
Stock Appreciation Right granted under this Plan shall be determined by the
Administrator and shall not be less than the lower of (i) the Purchase Price of
the related Option, in the case of a tandem Stock Appreciation Right or (ii)
the Fair Market Value on the Date of Grant of the Stock Appreciation Right.
Upon exercise of the Stock Appreciation Rights, the number of shares subject to
exercise under a related Option shall automatically be reduced by the number of
shares of Company Common Stock represented by the Option or portion thereof
which is surrendered as a result of the exercise of such Stock Appreciation
Rights.
7.04 PAYMENT OF INCREMENTAL VALUE. Any payment which may become
due from ALC by reason of Participant's exercise of a Stock Appreciation Right
may be paid to the Participant as determined by the Administrator (i) all in
cash, (ii) all in Company Common Stock, or (iii) in any combination of cash and
Company Common Stock. In the event that all or a portion of the payment is
made in Company Common Stock, the number of shares of the Company Common Stock
delivered in satisfaction of such payment shall be determined by dividing the
amount of the payment by the Fair Market Value on the date of exercise. The
Administrator may determine whether payment upon exercise of a Stock
Appreciation Right will be made in cash or in stock, or a combination thereof,
upon or at any time prior to the exercise of such Stock Appreciation Right. No
fractional share of Company Common Stock shall be issued to make any payment;
if any fractional shares would be issuable, the mix of cash and Company Common
Stock payable to the Participant shall be adjusted as directed by the
Administrator to avoid the issuance of any fractional share. Payment may be
made in cash to Officers only if the Stock Appreciation Right is exercised
during the "window period" required under Rule 16b-3(e)(3) and otherwise in
accordance with Rule 16b-3.
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ARTICLE VIII
TERMS OF OPTIONS AND STOCK APPRECIATION RIGHTS
8.01 AWARD AGREEMENT. No person shall have any rights under any
Award granted under the Plan unless and until the Administrator has adopted a
resolution granting the Award. The grant and the terms and conditions of the
Award shall be set forth in an Award Agreement between ALC and the Participant
and shall be delivered to the Participant. In the event of the loss or
destruction of the Award Agreement, or any inconsistency between the Award
Agreement and the resolution of the Administrator documenting the grant of the
Award, the resolution of the Administrator shall control.
8.02 PLAN PROVISIONS CONTROL AWARD TERMS. The terms of the Plan
shall govern all Awards granted under the Plan, and in no event shall the
Administrator have the power to grant any Award under the Plan which is
contrary to any of the provisions of the Plan. In the event any provision of
any Award granted under the Plan shall conflict with any term in the Plan as
constituted on the Date of Grant of such Award, the term in the Plan as
constituted on the Date of Grant of such Award shall control. Except as
provided in Section 4.03, (i) the terms of any Award granted under the Plan may
not be changed after the granting of such Award without the express approval of
the Participant and (ii) no modification may be made to an Award granted to an
Officer except in compliance with Rule 16b-3.
8.03 DURATION OF OPTIONS AND STOCK APPRECIATION RIGHTS. Options
and Stock Appreciation Rights shall terminate after the first to occur of the
following events:
(a) Expiration Date of the Award as provided in the Award
Agreement; or
(b) Termination of the Award as provided in Section 8.04;
or
(c) In the case of an Incentive Stock Option, ten years
from the Date of Grant; or
(d) Solely in the case of tandem Stock Appreciation
Rights, upon the Expiration Date of the related Option.
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<PAGE> 11
8.04 EXERCISE ON DEATH OR TERMINATION OF EMPLOYMENT.
(a) Unless otherwise provided in the Award Agreement, in
the event of the death of a Participant while an employee of ALC or a
Subsidiary of ALC, the right to exercise all unexpired Awards shall be
accelerated and shall accrue as of the date of death, and the
Participant's Awards may be exercised by his Beneficiary at any time
within one year after the date of the Participant's death.
(b) Unless otherwise provided in the Award Agreement, in
the event of Participant's Termination of Employment at any time for
any reason other than death (including disability or retirement), an
Award may be exercised, but only to the extent it was otherwise
exercisable, on the date of Termination of Employment, within ninety
days after the date of Termination of Employment. In the event of the
death of the Participant within the ninety-day period following
Termination of Employment, his Award may be exercised by his
Beneficiary within one year after the date of the Participant's death.
(c) With respect to an Award which is intended to
constitute an Incentive Stock Option, upon Termination of Employment,
such Award shall be exercisable as provided in Section 422 of the
Code.
8.05 ACCELERATION OF EXERCISE TIME. The Administrator, in its sole
discretion, shall have the right (but shall not in any case be obligated) to
permit purchase of shares under any Award prior to the time such Award would
otherwise become exercisable under the terms of the Award Agreement.
8.06 EXTENSION OF EXERCISE TIME. The Administrator, in its sole
discretion, shall have the right (but shall not in any case be obligated) to
permit any Award granted under this Plan to be exercised after its Expiration
Date or after the ninety day period following Termination of Employment,
subject, however, to the limitations described in Section 8.03 (c) and (d).
8.07 MODIFICATION OF AWARD AFTER GRANT. Each Award granted under
the Plan to a Participant other than an Officer may be modified after the date
of its grant by express written agreement between ALC and the Participant,
provided that such change (i) shall not be inconsistent with the terms of the
Plan and (ii) shall be approved by the Administrator. No modifications may be
made to any Awards granted to an Officer except in compliance with Rule 16b-3.
8.08 CONDITIONS FOR EXERCISE. An Award Agreement may contain such
waiting periods, exercise dates and restrictions on exercise (including, but
not limited to, periodic installments which may be cumulative) as may be
determined by the Administrator at the Date of Grant. Where payment is to be
made in whole or in part in cash, no Stock Appreciation Right may be exercised
prior to six months from the Date of Grant.
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<PAGE> 12
8.09 CHANGE OF CONTROL EVENT. Unless otherwise provided in the
Award Agreement, and subject to such other terms and conditions as the
Administrator may establish in the Award Agreement, upon the occurrence of a
Change of Control Event, irrespective of whether or not an Award is then
exercisable, the Participant shall have the right to exercise in full any
unexpired Award to the extent not theretofore exercised or terminated;
provided, however, that any Stock Appreciation Right so exercised must have a
Date of Grant at least six months prior to the date of exercise.
8.10 EXERCISE PROCEDURES. Each Option and Stock Appreciation Right
granted under the Plan shall be exercised by written notice to ALC which must
be received by the representative of ALC designated in the Award Agreement on
or before the Expiration Date of the Award. The Purchase Price of shares
purchased upon exercise of an Option granted under the Plan shall be paid in
full in cash by the Participant pursuant to the Award Agreement; provided,
however, that the Administrator may (but need not) permit payment to be made by
delivery to ALC of either (a) shares of Company Common Stock (including shares
issuable to the Participant pursuant to the exercise of the Option provided
that Officers may elect to make payment with such shares only within the
"window period" required under Rule 16b-3(e)(3) and otherwise in accordance
with Rule 16b-3), or (b) any combination of cash and shares of Company Common
Stock, or (c) such other consideration as the Administrator deems appropriate
and in compliance with applicable law (including payment in accordance with a
cashless exercise program under which, if so instructed by the Participant,
shares of Company Common Stock may be issued directly to the Participant's
broker or dealer upon receipt of the Purchase Price in cash from the broker or
dealer). In the event that any Company Common Stock shall be transferred to
ALC to satisfy all or any part of the Purchase Price, the part of the Purchase
Price deemed to have been satisfied by such transfer of Company Common Stock
shall be equal to the product derived by multiplying the Fair Market Value as
of the date of exercise times the number of shares transferred. The
Participant may not transfer to ALC in satisfaction of the Purchase Price (y) a
number of shares which when multiplied times the Fair Market Value as of the
date of exercise would result in a product greater than the Purchase Price or
(z) any fractional share of Company Common Stock. Any part of the Purchase
Price paid in cash upon the exercise of any Option shall be added to the
general funds of ALC and used for any proper corporate purpose. Unless the
Administrator shall otherwise determine, any Company Common Stock transferred
to ALC as payment of all or part of the Purchase Price upon the exercise of any
Option shall be held as treasury shares.
8.11 TAXES. ALC shall be entitled, if the Administrator deems it
necessary or desirable, to withhold (or secure payment from the Participant in
lieu of withholding) the amount of any withholding or other tax required by law
to be withheld or paid by ALC with respect to any amount payable and/or shares
issuable under such Participant's Award, or with respect to any income
recognized upon a disqualifying disposition of shares received pursuant to the
exercise of an Incentive Stock Option, and ALC may defer payment or issuance of
the cash or stock upon exercise or vesting of an Award unless
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<PAGE> 13
indemnified to its satisfaction against any liability for such tax. The amount
of such withholding or tax payment shall be determined by the Administrator
and, unless otherwise provided by the Administrator, shall be payable by the
Participant at the time of issuance or payment in accordance with the following
rules:
(a) A Participant, other than an Officer, shall have the
right to elect to meet his or her withholding requirement by: (1)
having ALC withhold from such Award the appropriate number of shares
of Company Common Stock, rounded out to the next whole number, whose
Fair Market Value is equal to such amount, or, in the case of the cash
payment, the amount of cash, as is determined by ALC to be sufficient
to satisfy applicable tax withholding requirements; or (2) direct
payment to ALC in cash of the amount of any taxes required to be
withheld with respect to such Award.
(b) Unless otherwise provided by the Administrator, an
Officer shall have the right to elect to meet his or her withholding
requirement by: (1) making an election within the "window period"
required under Rule 16b-3(e)(3) to have ALC withhold from such Award
the appropriate number of shares of Company Common Stock, rounded out
to the next whole number, whose Fair Market Value is equal to such
amount, or, in the case of the cash payment, the amount of cash, as is
determined by ALC to be sufficient to satisfy applicable tax
withholding requirements; or (2) direct payment to ALC in cash of the
amount of any taxes required to be withheld with respect to such
Award. With respect to this section, any options exercised by
Officers must be held for at least six months after the Date of Grant.
(c) In the event that an Award or property received upon
exercise of an Award has already been transferred to the Participant
on the date upon which withholding requirements apply, the Participant
shall pay directly to ALC the cash amount determined by ALC to be
sufficient to satisfy applicable federal, state or local withholding
requirements. The Participant shall provide to ALC such information
as ALC shall require to determine the amounts to be withheld and the
time such withholding requirements become applicable.
(d) If permitted under applicable federal income tax
laws, a Participant may elect to be taxed in the year in which an
Award is exercised or received, even if it would not otherwise have
become taxable to the Participant. If the Participant makes such an
election, the Participant shall promptly notify ALC in writing and
shall provide ALC with a copy of the executed election form as filed
with the Internal Revenue Service no later than thirty days from the
date of exercise or receipt. Promptly following such notification,
the Participant shall pay directly to ALC the cash amount determined
by ALC to be sufficient to satisfy applicable federal, state or local
withholding tax requirements.
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<PAGE> 14
8.12 LIMITATIONS ON TRANSFER. A Participant's rights and interest
under the Plan may not be assigned or transferred other than by will or the
laws of descent and distribution or pursuant to the terms of a domestic
relations order, as defined in Section 414(p)(1)(B) of the Code, which
satisfies the requirements of Section 414(p)(1)(A) of the Code (a "Qualified
Domestic Relations Order"). During the lifetime of a Participant, only the
Participant personally (or the Participant's personal representative or
attorney-in-fact) or the alternate payee named in a Qualified Domestic
Relations Order may exercise the Participant's rights under the Plan. The
Participant's Beneficiary may exercise a Participant's rights to the extent
they are exercisable under the Plan following the death of the Participant.
8.13 SURRENDER OF AWARDS. Any Award granted under the Plan may be
surrendered to ALC for cancellation on such terms as the Administrator and
Participant approve, including, but not limited to, terms which provide that
upon such surrender ALC will pay to the Participant cash or Company Common
Stock, or a combination of cash and Company Common Stock.
ARTICLE IX
OTHER STOCK BASED AWARDS
9.01 GRANT OF OTHER AWARDS. Other Awards of Company Common Stock
or other securities of ALC and other Awards that are valued in whole or in part
by reference to, or are otherwise based on, Company Common Stock ("Other
Awards") may be granted either alone or in addition to or in conjunction with
Options or Stock Appreciation Rights under the Plan; provided, however, that
Company Common Stock (including Company Common Stock upon conversion, exchange
or otherwise) shall be issued either as a bonus award, free or at a price no
greater than its par value, or for a price equal to at least its Fair Market
Value on the Date of Grant or issuance date as specified in the Award
Agreement. Subject to the provisions of the Plan, the Administrator shall have
the sole and complete authority to determine the persons to whom and the time
or times at which Other Awards shall be made, the number of shares of Company
Common Stock or other securities, if any, to be granted pursuant to such Other
Awards, and all other conditions of such Other Awards. Any Other Award shall
be confirmed by an Award Agreement executed by the Administrator and the
Participant, which agreement shall contain such provisions as the Administrator
determines to be necessary or appropriate to carry out the intent of this Plan
with respect to the Other Award.
9.02 TERMS OF OTHER AWARDS. In addition to the terms and
conditions specified in the Award Agreement, Other Awards made pursuant to this
Article IX shall be subject to the following:
(a) Any shares of Company Common Stock subject to such
Other Awards may not be sold, assigned, transferred or otherwise
encumbered prior to
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<PAGE> 15
the date on which the shares are issued, or, if later, the date on
which any applicable restriction, performance or deferral period
lapses; and
(b) As specified by the Administrator and the Award
Agreement, the recipient of an Other Award shall be entitled to
receive, currently or on a deferred basis, interest or dividends or
dividend equivalents with respect to the Company Common Stock or other
securities covered by the Other Award; and
(c) The Award Agreement with respect to any Other Award
shall contain provisions providing for the disposition of such Other
Award in the event of Termination of Employment prior to the exercise,
realization or payment of such Other Award, with such provisions to
take account of the specific nature and purpose of the Other Award.
ARTICLE X
GENERAL PROVISIONS
10.1 AMENDMENT AND TERMINATION OF PLAN.
(a) AMENDMENT. The Board shall have complete power and
authority to amend the Plan at any time and to add any other stock
based Award or other incentive compensation programs to the Plan as it
deems necessary or appropriate and no approval by the stockholders of
ALC or by any other person, committee or entity of any kind shall be
required to make any amendment; provided, however, that the Board
shall not, without the requisite affirmative approval of stockholders
of ALC, make any amendment which requires stockholder approval under
any applicable law, including Rule 16b-3 or the Code, unless such
compliance, if discretionary, is no longer desired. No termination or
amendment of the Plan may, without the consent of the Participant to
whom any Award shall theretofore have been granted under the Plan,
adversely affect the right of such individual under such Award. For
the purposes of this section, an amendment to the Plan shall be deemed
to have the affirmative approval of the stockholders of ALC if such
amendment shall have been submitted for a vote by the stockholders at
a duly called meeting of such stockholders at which a quorum was
present and the majority of votes cast with respect to such amendment
at such meeting shall have been cast in favor of such amendment, or if
the holders of outstanding stock having not less than a majority of
the outstanding shares consent to such amendment in writing in the
manner provided under the bylaws of ALC.
(b) TERMINATION. The Board shall have the right and the
power to terminate the Plan at any time. If the Plan is not earlier
terminated, the Plan shall terminate on December 31, 2000. No Award
shall be granted under the Plan after the termination of the Plan, but
the termination of the Plan shall not have any other effect and any
Award outstanding at the time of the termination of the Plan may
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<PAGE> 16
be exercised after termination of the Plan at any time prior to the
expiration date of such Award to the same extent such Award would have
been exercisable if the Plan had not been terminated.
10.02 NO RIGHT TO EMPLOYMENT. No employee or other person shall
have any claim or right to be granted an Award under this Plan. Neither the
Plan nor any action taken hereunder shall be construed as giving any employee
any right to be retained in the employ of ALC or any of its Subsidiaries.
10.03 COMPLIANCE WITH RULE 16B-3. It is intended that the Plan be
applied and administered in compliance with Rule 16b-3. If any provision of
the Plan would be in violation of Rule 16b-3 if applied as written, such
provision shall not have effect as written and shall be given effect so as to
comply with Rule 16b-3, as determined by the Administrator. The Board is
authorized to amend the Plan and to make any such modifications to Award
Agreements to comply with Rule 16b-3, as it may be amended from time to time,
and to make any other such amendments or modifications as it deems necessary or
appropriate to better accomplish the purposes of the Plan in light of any
amendments made to Rule 16b-3.
10.04 SECURITIES LAW RESTRICTIONS. The shares of Company Common
Stock issuable upon the exercise of any Awards granted under the Plan may not
be issued by ALC without registration or qualification of such shares under the
Securities Act of 1933, as amended, or under various state securities laws or
without an exemption from such registration requirements. Unless the shares to
be issued under the Plan have been registered and/or qualified as appropriate,
ALC shall be under no obligation to issue shares of Company Common Stock upon
exercise of an Award unless and until such time as there is an appropriate
exemption available from the registration or qualification requirements of
federal or state law as determined by the Administrator in its sole discretion.
The Administrator may require any person who is granted an award hereunder to
agree with ALC to represent and agree in writing that if such shares are
issuable under an exemption from registration requirements, the shares will be
"restricted" securities which may be resold only in compliance with applicable
securities laws, and that such person is acquiring the shares issued upon
exercise of the Award for investment, and not with the view toward
distribution.
10.05 CAPTIONS. The captions (i.e., all section headings) used in
the Plan are for convenience only, do not constitute a part of the Plan, and
shall not be deemed to limit, characterize or affect in any way any provisions
of the Plan, and all provisions of the Plan shall be construed as if no
captions have been used in the Plan.
10.06 SEVERABILITY. Whenever possible, each provision in the Plan
and every Award at any time granted under the Plan shall be interpreted in such
a manner as to be effective and valid under applicable law, but if any
provision of the Plan or any Award at any time granted under the Plan shall be
held to be prohibited or invalid under applicable
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<PAGE> 17
law, then (a) such provision shall be deemed amended to accomplish the
objectives of the provision as originally written to the fullest extent
permitted by law and (b) all other provisions of the Plan and every other Award
at any time granted under the Plan shall remain in full force and effect.
10.07 NO STRICT CONSTRUCTION. No rule of strict construction shall
be implied against ALC, the Administrator, or any other person in the
interpretation of any of the terms of the Plan, any Award granted under the
Plan or any rule or procedure established by the Administrator.
10.08 CHOICE OF LAW. All determinations made and actions taken
pursuant to the Plan shall be governed by the laws of the State of Michigan and
construed in accordance therewith.
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