<PAGE> 1
As filed with the Securities and Exchange Commission on June 30, 1994
Registration Statement No. 33-25737
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 1986 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
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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 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation and Amended and Restated
Bylaws of the Company provide for indemnification by the Company of each of its
directors and officers for liability (including liability arising under the
Securities Act of 1933) of such director or officer arising by reason of his
status as a director or officer of the Company, provided he meets the standards
established in the Bylaws, which include requirements that he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
Company's best interests. If such director or officer is successful on the
merits, the Company will also reimburse expenses. Such indemnification will be
made by the Company only upon a determination that the director or officer has
met the standards established in the Bylaws. This determination may be made by
a majority vote of a quorum of disinterested directors, an opinion of counsel
(if no such quorum is available), a majority vote of stockholders, or by a
court (which may also overturn any of the preceding determinations). The
Bylaws also permit the Company to purchase insurance against liabilities of
directors or officers; however, the Company does not presently maintain such
coverage.
ITEM 8. EXHIBITS
The exhibits filed herewith are set forth on the exhibit index filed as
part of this registration statement.
ITEM 9. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement
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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(e) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification 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 Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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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 1986 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 Statement No. 33-25737 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
1986 OPTION PLAN
AS AMENDED AND RESTATED AS OF MAY 12, 1994
PART 1: IDENTIFICATION OF THE PLAN
Section 1.1 Title. The Plan described herein shall be known as the
"ALC Communications Corporation 1986 Option Plan" and is referred to herein as
this "Plan".
Section 1.2 Purpose. The purpose of this Plan is (i) to provide
certain key employees of the Company and its subsidiaries with an additional
incentive to promote the Company's financial success and (ii) to provide an
incentive which the Company may use to induce able persons to enter into or
remain in the employment of the Company or a subsidiary.
Section 1.3 Adoption of this Plan. This Plan was initially approved
by the Company's Board of Directors on December 5, 1986 and was approved by the
Company's stockholders on May 26, 1987.
Section 1.4 Defined Terms. Certain terms used in this Plan have the
meaning indicated for such terms in Section 11.1 of this Plan.
PART 2: ADMINISTRATION OF THE PLAN
Section 2.1 Committee's Powers. This Plan shall be administered by a
committee (herein called the "Committee") composed of persons appointed by the
Company's Board of Directors in accordance with the provisions of Section 2.2.
The Committee shall have full power and authority to prescribe, amend and
rescind rules and procedures governing administration of this Plan. Each
action of the Committee which shall be within the scope of the authority
delegated to the Committee by this Plan or by the Company's Board of Directors
shall be binding on all persons.
Section 2.2 Committee Membership. The Board of Directors shall have
the power to determine the number of members which the Committee shall have and
to change the number of membership positions on the Committee from time to
time; provided, however, that the Committee shall always consist of not less
than two members. The Board of Directors shall appoint all members of the
Committee. The Board of Directors may from time to time appoint members to the
Committee in substitution for, or in addition to, members previously appointed
and may fill vacancies, however caused, on the Committee. Any member of the
Committee may be removed from the Committee by the Board of Directors at any
time without cause. No person may be appointed to the Committee who is
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not a director of the Company at the time of such appointment or who
shall not be disinterested at the time of such appointment. For the purpose of
this Plan, a person shall be deemed to be "disinterested" at any given time if
at all times during the period of one year preceding the given time such person
shall not have been eligible to be granted any option under this Plan or to be
granted or allocated any stock or option under any other plan of the Company or
any of its affiliates entitling the participants therein to acquire stock,
stock purchase options, or stock appreciation options relating to the stock of
the Company or any affiliate of the Company. A person's membership on the
Committee shall automatically cease when such person ceases to be a director of
the Company or ceases to be disinterested. At any time at which no special
Committee shall have been constituted by the Board especially for the purposes
of this Plan, all disinterested members of the Compensation Committee
established pursuant to the Company's By-Laws shall have all powers and rights
delegated to the "Committee" under this Plan.
Section 2.3 Committee Procedures. The Committee shall hold its
meetings at such times and places as it may determine. The Committee may make
such rules and regulations for the conduct of its business as it shall deem
advisable. Unless the Board or the Committee shall expressly decide to the
contrary, a majority of the members of the Committee shall constitute a quorum
and any action taken by a majority of the Committee members at a meeting at
which a quorum of committee members shall be present shall be deemed an act of
the Committee.
Section 2.4 Indemnification. No member of the Committee shall be
liable, in the absence of bad faith, for any act or omission with respect to
his service on the Committee relating to this Plan. Service on the Committee
shall constitute service as a director of the Company so that the members of
the Committee shall be entitled to indemnification and reimbursement as
directors of the Company for any action or any failure to act in connection
with service on the Committee to the full extent at any time provided for or
permitted by the Company's Certificate of Incorporation or By-Laws or by any
insurance policy or other agreement intended for the benefit of the Company's
directors or by any applicable law.
PART 3: PERSONS ELIGIBLE TO RECEIVE OPTIONS
A person shall be eligible to be granted an option under this Plan
only if on the proposed Granting Date for such option or at some time between
the Granting Date of such option and the exercise of such option, such person
either holds an officership position with the Company expressly provided for in
the Company's By-Laws as then constituted or meets the following standards:
(i) such person is employed by the Company or a subsidiary, (ii) such person
has managerial, supervisory or similar responsibilities, and (iii) such person
is not covered by any collective bargaining agreement binding on such person's
employer. A person eligible to be granted
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an option under this Plan is herein called a "key employee". A director of the
Company or a subsidiary who is not also such an employee of the Company or a
subsidiary shall not be eligible to receive options under this Plan. Options
may not be granted to any person under this Plan at a time when such person is
serving as a member of the Committee.
PART 4: PURCHASE OPTIONS
Section 4.1 Power to Grant Purchase Options. The Committee shall
have the right and the power to grant at any time to any key employee an option
entitling such person to purchase Common Stock from the Company in such
quantity, at such price, on such terms and subject to such conditions
consistent with the provisions of this Plan as may be established by the
Committee on or prior to the Granting Date for such option. Each option to
purchase Common Stock which shall be granted by the Committee pursuant to the
provisions of this Part 4 is herein called a "purchase option."
Section 4.2 Purchase Price. Except as otherwise provided in Part 9,
the price at which each share may be purchased upon exercise of any stock
purchase option granted under this Plan may not be less than 80% of the per
share market value on the Granting Date for such option, provided that if a
replaceable option held by a key employee (whether or not granted under this
Plan) shall be surrendered to the Company or otherwise be terminated or expire,
then an option may be granted under this Plan not later than seven months after
such surrender, termination or expiration covering a number of shares not
greater than the shares subject to the surrendered, terminated or expired
option which shall not have been purchased by means of such option at an
initial purchase price per share equal to the purchase price per share
prescribed by the surrendered, terminated or expired option at the time of the
surrender, termination or expiration. For purposes of this Plan, an option
shall be deemed "replaceable" if: (i) it shall have been granted under this
Plan, under the ALC Communications Corporation 1982 Incentive Stock Option
Plan, the ALC Communications Corporation 1983 Incentive Stock Option Plan, the
ALC Communications Corporation 1984 Incentive Stock Option Plan, the ALC
Communications Corporation Employee Stock Option Plan, the ALC Communications
Corporation Non-Qualified Stock Option Plan, the ALC Communications
Corporation Employee Stock Purchase Plan or any other plan or program hereafter
or previously approved by the Company's stockholders; or (ii) the option shall
have been granted in the manner prescribed in this Section 4.2 to substitute
for a replaceable option; or (iii) the option shall have been originally
granted under a plan or arrangement that prohibited the grant of options for an
exercise price of less than 80% of the fair market value of the stock subject
to such option (determined as prescribed in such plan or arrangement); or (iv)
the board of directors of the corporation which shall have granted such option,
a committee of such board or the Committee existing under this Plan shall have
concluded in good faith that at the time such option was originally
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granted the exercise price of such option was not less than 80% of the fair
market value at the time of such original grant of the shares subject to such
option.
Section 4.3 Purchase Option Terms. The Committee shall have the
power to determine the key employees to whom purchase options shall be granted
under this Plan, the number of shares to be subject to each purchase option
granted under this Plan, the number of purchase options to be awarded to each
key employee and the time at which each purchase option under this Plan shall
be granted. Except as otherwise expressly provided in this Plan, the Committee
shall also have the power to determine, at the time of the grant of each
purchase option, all terms and conditions governing the rights and obligations
of the holder with respect to such option, including but not limited to: (a)
the exercise price per share or the method by which the exercise price per
share shall be determined; (b) the length of the period during which the option
may be exercised and any limitations on the number of shares purchasable with
the option at any given time during such period; (c) the times at which the
option may be exercised; (d) any conditions precedent to be satisfied before
the option may be exercised; (e) any restrictions on resale of any shares
purchased upon exercise of the option; and (f) whether the option will or will
not constitute an incentive stock option under Section 422 of the Internal
Revenue Code. Notwithstanding the foregoing, purchase options granted to
Officers shall not be exercisable for a period of at least six months from the
Granting Date.
Section 4.4 ISO Share Limitation. No person may be granted incentive
stock options under this Plan in any year entitling such person to purchase a
number of shares greater than the maximum number permitted by Section 422 of
the Internal Revenue Code as in effect on the date of grant. This Section 4.4
shall not be deemed to limit the quantity of shares which the Company may grant
the right to purchase in any year under options granted under this Plan which
are not intended to be incentive stock options.
Section 4.5 Other ISO Terms. Whenever possible, each provision in
this Plan and in every option at any time granted under this Plan which is
evidenced by an option agreement which expressly states such option is intended
to constitute an incentive stock option under Section 422 of the Internal
Revenue Code (herein called an "intended ISO") shall be interpreted in such
manner as to entitle such intended ISO to the tax treatment afforded by such
Code to options which do constitute incentive stock options under Section 422
of such Code, but if any provision of this Plan or any intended ISO at any time
granted under this Plan shall be held to be contrary to the requirements
necessary to entitle such intended ISO to the tax treatment afforded by such
Code to options which do constitute incentive stock options under Section 422
of such Code, then (i) such provision shall be deemed to have contained from
the outset such language as shall be necessary to entitle such intended ISO to
the tax treatment afforded by the Code to options which do
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constitute incentive stock options under Section 422 of such Code, and (ii) all
other provisions of this Plan and such intended ISO shall remain in full force
and effect. If any agreement covering an intended ISO granted under this Plan
shall not explicitly include any terms required to entitle such intended ISO to
the tax treatment afforded by such Code to options which do constitute
incentive stock options under Section 422 of such Code, then all such terms
shall be deemed implicit in the intention to afford such treatment to such
option and such option shall be deemed to have been granted subject to all such
terms.
PART 5: APPRECIATION OPTIONS
Section 5.1 Power to Grant Appreciation Options. The Committee shall
have the right and the power to grant to any key employee at any time an option
having such terms consistent with the provisions of this Plan as the Committee
shall establish on the Granting Date for such option permitting the holder of
such option to elect to receive with respect to any share subject to such
option a payment from the Company payable as provided in Section 5.5 in an
amount (herein called such share's "incremental value") equal to the remainder
derived by subtracting (i) the "exercise price" established for such share in
accordance with the provisions of this Plan from (ii) the per share market
value on the date such option shall be exercised by its holder with respect to
such share. Each option which shall be granted by the Committee pursuant to
the provisions of this Part 5 is herein called an "appreciation option."
Section 5.2 Tandem Options. The Committee is hereby authorized to
grant to any key employee at any time an appreciation option consistent with
the provisions of this Plan covering any share which is at the time of such
grant also covered by a purchase option granted to the same employee either
prior to or simultaneously with the grant to such employee of the appreciation
option in such share, provided: (i) any purchase option covering any share
shall expire and not be exercisable after the exercise of any related
appreciation option with respect to the same share; (ii) any appreciation
option covering any share shall not be exercisable after the exercise of any
related purchase option with respect to the same share; and (iii) a purchase
option and an appreciation option covering the same share may not be exercised
simultaneously. The Committee is also authorized to grant at any time to any
key employee an appreciation option consistent with the provisions of this Plan
covering shares not simultaneously covered by a purchase option.
Section 5.3 Appreciation Option Terms. The Committee shall have the
right and power to determine the key employees to whom appreciation options
shall be granted under this Plan, the number of shares to be subject to each
appreciation option granted under this Plan, the number of appreciation options
to be granted to each key employee, and the time at which each appreciation
option under
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this Plan shall be granted. Except as otherwise expressly provided in this
Plan, the Committee shall also have the right and power to determine, at or
prior to the time of the grant of each appreciation option, all terms and
conditions governing the rights and obligations of the holder with respect to
such option, including but not limited to: (a) the exercise price for the
shares covered by such option or the method by which such exercise price shall
be determined; (b) the length of the period during which such option may be
exercised and any limitations on the number of shares with respect to which
such option shall be exercisable at any given time during such period; (c) any
conditions precedent which must be satisfied before the option may be
exercised; and (d) the mix of cash and Common Stock, or other consideration, to
be used to make any payment of incremental value which shall become due under
such option. Notwithstanding the foregoing, appreciation options granted to
Officers shall not be exercisable for a period of at least six months from the
Granting Date.
Section 5.4 Exercise Price.
(a) Except as otherwise provided in paragraph (b) of this Section 5.4
or in Part 9, the exercise price established under any appreciation option
granted under this Plan shall not be less than 80% of the per share market
value on the Granting Date of such appreciation option. If no exercise price
shall be established under the terms of the agreement granting any appreciation
option, then the exercise price for each share covered by such option shall be
equal to the per share market value on the Granting Date of such option.
(b) Except as otherwise provided in Part 9, the exercise price
established under any appreciation option granted to any key employee covering
any share which shall also be subject to a purchase option which shall have
been granted to the same employee earlier than the grant of such appreciation
option shall not be less than the lower of (i) the per share purchase price in
effect under such option at the time such appreciation option shall be granted
or (ii) 80% of the per share market value on the Granting Date of such
appreciation option.
Section 5.5 Payment of Incremental Value. Any payment of incremental
value which may become due from the Company by reason of any exercise of any
appreciation option may be paid (i) all in cash, (ii) all in Common Stock,
(iii) in any combination of cash and Common Stock, or (iv) in such other
consideration as the Committee may approve. In the event any Common Stock
shall be delivered to satisfy all or any part of the incremental value
obligation arising by reason of any exercise of any appreciation option, the
dollar amount of such obligation deemed to have been satisfied by such delivery
of Common Stock shall be equal to the product derived by multiplying the per
share market value as of the date of exercise times the number of shares
delivered. The Committee may determine at the time each appreciation option is
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granted the mix of cash and stock, or other consideration, to be used to make
any payment of incremental value which may become due by reason of any exercise
of any option, but in the absence of any such express determination by the
Committee to the contrary at the time of the grant of any given appreciation
option, the incremental value shall be payable entirely in cash.
Notwithstanding the foregoing, payment may be made in cash to Officers only if
the appreciation option is exercised during the "window period" required under
Rule 16b-3(e)(3) and otherwise in accordance with Rule 16b-3. No fractional
share of Common Stock shall be issued to make any payment of incremental value,
and the mix of cash and stock payable in each case shall be adjusted in such
manner as shall be prescribed by the Committee to avoid the issuance of any
fractional share.
PART 6: TERMS APPLICABLE TO ALL OPTIONS GRANTED UNDER THE PLAN
Section 6.1 Plan Provisions Control Option Terms. The terms of this
Plan shall govern all options granted under this Plan, and in no event shall
the Committee have the power to grant any option under this Plan which is
contrary to any of the provisions of this Plan. In the event any provision of
any option granted under this Plan shall conflict with any term in this Plan as
constituted on the Granting Date of such option, the term in this Plan as
constituted on the Granting Date of such option shall control. Except as
provided in Part 9, the terms of any option granted under this Plan may not be
changed after the Granting Date of such option without the express approval of
the option holder.
Section 6.2 Granting Date. An option shall be deemed to have been
granted under this Plan on the date (herein called the "Granting Date")
designated by the Committee at the time it shall approve such option as the
Granting Date of such option, provided that the Committee may not designate a
Granting Date with respect to any option which shall be earlier than the date
on which the granting of such option shall have been approved by the Committee.
Section 6.3 Option Agreement. No person shall have any rights under
any option granted under this Plan unless and until the Company and the person
to whom such option shall have been granted shall have executed and delivered
an agreement expressly granting the option to such person and containing
provisions setting forth the terms of the option.
Section 6.4 Ten Year Maximum Term. No option may be granted under
this Plan which may be exercised more than ten years after the Granting Date of
such option; provided that if an appreciation option shall be granted with
respect to any share subject to a purchase option and if pursuant to paragraph
(b) of Section 5.4 the exercise price for such share shall be set lower than
the per share market value on the date of grant of such appreciation option,
then the expiration date of such appreciation option shall be set not later
than the expiration date for the related purchase option.
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Section 6.5. Modification of Option After Grant. Each option granted
under this Plan may be modified after the date of its grant by express written
agreement between the Company and its holder provided that any such change (i)
shall not be inconsistent with the terms of this Plan and (ii) shall be
approved by the Committee. No modifications may be made to any options granted
to an Officer except in compliance with Rule 16b-3.
Section 6.6 Limitations on Transfer. No option granted under this
Plan shall be transferable otherwise 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) of the Internal Revenue Code, which satisfies the
requirements of Section 414(p)(1)(A) of the Internal Revenue Code (a "Qualified
Domestic Relations Order"). Any option granted under this Plan may be
exercised during the lifetime of the person to whom the option shall initially
have been granted only by such person or by such person's guardian or legal
representative or by the alternate payee named in a Qualified Domestic
Relations Order. An optionholder may designate a beneficiary who may succeed
to the rights and obligations of the holder. For purposes of this Plan, the
"holder" of any option granted under this Plan shall during the life of the
person to whom such option shall originally have been granted be deemed to be
such person or any guardian or legal representative for such person to whom the
right to exercise such option shall pass during such person's lifetime and
after the death of such original grantee shall be deemed to be the person to
whom the original grantee's rights shall pass by reason of the original
grantee's death.
Section 6.7 Taxes. The Company shall be entitled, if the Committee
deems it necessary or desirable, to withhold (or secure payment from the option
holder in lieu of withholding) the amount of any withholding or other tax due
from the Company with respect to any amount payable and/or shares issuable
under such holder's option, or with respect to any income recognized upon a
disqualifying disposition of shares received pursuant to the exercise of an
incentive stock option, and the Company may defer such payment or issuance
unless indemnified to its satisfaction against any liability for any such tax.
Section 6.8 No Right to Employment Conferred. Nothing in this Plan
(or in the absence of any express provision to the contrary) in any option
granted pursuant to this Plan, shall confer on any person any right to continue
in the employment of the Company or any subsidiary or interfere in any way with
the right of the Company or any subsidiary to terminate such person's
employment at any time.
Section 6.9 Change of Control Event. Unless otherwise specified by
the Committee at the time of grant of each option, and subject to such terms
and conditions as the Committee may establish at the time of grant, upon the
occurrence of a Change of Control
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Event, irrespective of whether or not an option is then exercisable, the holder
shall have the right to exercise any unexpired option in full to the extent not
theretofore exercised or terminated.
PART 7: PROVISIONS GOVERNING OPTION EXERCISE
Section 7.1 Normal Option Term. Except as otherwise provided in
Section 7.3 or Section 7.5, the right to exercise any option granted under this
Plan shall terminate at whichever of the following times shall earlier occur:
(i) the date which shall occur three months after the employment termination
date of the holder of the option, or (ii) the expiration date of the option.
Section 7.2 Acceleration of Exercise Time. The Committee in its sole
discretion shall have the right (but shall not in any case be obligated) (i) to
permit purchase of shares under any purchase option prior to the time such
shares shall be purchasable under the terms of the agreement granting such
option, and (ii) to permit exercise of an appreciation option prior to the time
such option shall be exercisable under the terms of the agreement granting such
option.
Section 7.3 Extension of Exercise Time. The Committee in its sole
discretion shall have the right (but shall not in any case be obligated) to
permit any option granted under this Plan to be exercised more than three
months after the employment termination of the holder of such option, provided
that the Committee shall not have the right to permit exercise of any option
after its expiration date.
Section 7.4 Exercise Procedures. Each option granted under this Plan
shall be exercised by written notice to the Company. An option holder shall
not have any rights as a stockholder with respect to shares issuable under any
option granted under this Plan until the exercise of that option with respect
to those shares. The purchase price of shares purchased upon the exercise of a
purchase option granted under this Plan shall be paid in full in cash by the
option's holder at the time of the delivery of such shares provided that the
Committee (or any Company officer to whom the Committee shall delegate the
authority) may (but need not) permit payment to be made by delivery to the
Company of either (i) shares of Common Stock, (ii) any combination of cash and
shares of Common Stock permitted by the Committee (or any such officer), or
(iii) such other consideration permitted by the Committee. In the event any
Common Stock shall be transferred to the Company to satisfy all or any part of
the exercise price, the part of the exercise price deemed to have been
satisfied by such transfer of Common Stock shall be equal to the product
derived by multiplying the per share market value as of the date of exercise
times the number of shares transferred. The option holder may not transfer to
the Company in satisfaction of the exercise price (i) a number of shares which
when multiplied times the per share market value as
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of the date of exercise would result in a product greater than the exercise
price or (ii) any fractional share of Common Stock. Any part of the exercise
price paid in cash upon the exercise of any option granted under this Plan
shall be added to the general funds of the Company and may be used for any
proper corporate purpose. Unless the Board of Directors shall otherwise
determine, any Common Stock transferred to the Company as payment of all or
part of the purchase price upon the exercise of any option granted under this
Plan shall be utilized as soon as possible to supply the Common Stock
deliverable by reason of the subsequent exercise of options under this Plan and
until such use shall be held as treasury shares.
Section 7.5 Death of Option Holder.
(a) Upon the death of the holder of an option granted under this Plan
who shall have been an employee of the Company or one or more subsidiaries of
the Company at the date of such holder's death, the right to exercise all
unexpired installments of such option shall be accelerated and shall accrue as
of the date of death, and the person or persons to whom such holder's rights
under the option shall pass by reason of such person's death may exercise the
option with respect to any or all of the shares subject to such option until
the earlier of (i) one year after the original holder's death or (ii) the
expiration date of the option.
(b) If the holder of an option granted under this Plan shall die
after such holder's employment termination date and if such option shall still
have been exercisable at the time of such holder's death, then the person or
persons to whom such holder's rights under such option shall pass by reason of
such holder's death, may, until one year after such holder's death or the
expiration date of the option, whichever is earlier, exercise such option to
the extent it would have been exercisable if such holder had exercised the
option immediately prior to such holder's death or to such greater extent as
may be permitted by the Committee. Any restrictions placed on the exercise of
an option which is intended to constitute an incentive stock option in order to
comply with the requirements of Section 422(b)(7) of the Internal Revenue Code
prior to amendment by the Tax Reform Act of 1986 shall be disregarded in
determining the extent to which an option could have been exercised immediately
prior to the option holder's death but shall apply to govern the required
sequence of the exercise of the deceased holder's options after such holder's
death.
Section 7.6 Option Surrender. Any purchase option granted under this
Plan may be surrendered to the Company on such terms as the Committee and
holder of such option approve, including, but not limited to, terms which
provide that upon such surrender the Company will pay to such holder cash or
Common Stock issued by the Company, or a combination of cash and Common Stock
having a value equal to the amount by which the product derived by multiplying
the number of shares (herein called the "number of unexercised shares")
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subject to the option on the date (herein called the "Surrender Date") as of
which such option shall be surrendered times the per share market value on the
Surrender Date shall exceed the product derived by multiplying the number of
unexercised shares times the purchase price per share prescribed by the
surrendered option.
PART 8: SHARES SUBJECT TO THIS PLAN
Except as otherwise provided in Part 9, the options granted under this
Plan shall be limited so that the sum of the following shall never exceed
1,000,000 shares: (i) all shares which shall be purchased after 1986 upon the
exercise of purchase options at any time granted under ALC Communications
Corporation 1982 Incentive Stock Option Plan, the ALC Communications
Corporation 1983 Incentive Stock Option Plan, the ALC Communications
Corporation 1984 Incentive Stock Option Plan, the ALC Communications
Corporation Employee Stock Option Plan, the ALC Communications Corporation
Non-Qualified Stock Option Plan or the ALC Communications Corporation Employee
Stock Purchase Plan, (ii) all shares which shall be purchased upon the exercise
of purchase options at any time granted under this Plan, (iii) all shares for
which payment of incremental value shall be made by reason of the exercise of
appreciation options at any time granted under this Plan, and (iv) the number
of shares determined by dividing the value of the cash or other consideration
issued by the Company pursuant to Section 7.6 of this Plan by reason of the
surrender of any option by the per share market value on the Surrender Date
(provided that if a new option shall be substituted for the surrendered option,
the new option shall (regardless of the exercise price prescribed therein) be
deemed to have a value of zero for purposes of this clause (iv)). In the event
any option at any time granted under this Plan shall be surrendered to the
Company, be terminated or expire before it shall have been fully exercised,
then (except as otherwise provided in clause (iv) in the first sentence in this
paragraph) all shares formerly subject to such option as to which such option
shall not have been exercised shall be available for any option subsequently
granted in accordance with the provisions of this Plan.
PART 9: ADJUSTMENTS TO REFLECT CAPITAL CHANGES
The number and kind of shares subject to outstanding options, the
price for which shares may be purchased upon the exercise of outstanding
purchase options, the exercise price for shares covered by outstanding
appreciation options and the number and kind of shares available for options,
subsequently granted under this Plan shall be appropriately adjusted to
reflect any stock dividend, stock split, combination or exchange of shares,
merger, consolidation or other change in capitalization determined by the
Board of Directors to be similar to any of the changes expressly indicated in
this sentence in its substantive effect upon this Plan or the options granted
under this Plan. The Committee shall have the power to determine the amount of
the adjustment to be made in each
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case, but no adjustment approved by the Committee shall be effective until and
unless it is approved by the Company's Board of Directors.
PART 10: AMENDMENT AND TERMINATION OF THIS PLAN
Section 10.1 Amendment. Except as provided in the following sentence,
the Board of Directors shall have complete power and authority to amend this
Plan at any time and no approval by the Company's stockholders or by any other
person, committee or other entity of any kind shall be required to make any
amendment approved by the Company's Board of Directors effective. The Board
shall not, however, do any of the following without the affirmative approval of
the Company's stockholders: (i) increase the maximum number of shares
available for options granted under this Plan except as provided in Part 9; or
(ii) lower the minimum purchase price permitted by this Plan for any option
granted under this Plan; or (iii) amend the requirements of this Plan as to the
class of persons eligible to receive options. No termination or amendment of
this Plan may, without the consent of the individual to whom any option shall
theretofore have been granted under this Plan, adversely affect the rights of
such individual under such option. For the purposes of this Section 10.1, an
amendment to this Plan shall be deemed to have the affirmative approval of the
Company's stockholders if such amendment shall have been submitted for vote by
the Company's stockholders at a duly called and constituted meeting of such
stockholders at which a quorum is present and a majority of the votes cast
with respect to such amendment at such meeting shall have been cast in favor
of such amendment.
Section 10.2 Termination. The Board of Directors shall have the right
and the power to terminate this Plan at any time. If this Plan is not earlier
terminated, this Plan shall terminate on December 5, 1996. No options shall be
granted under this Plan after termination of this Plan, but the termination of
this Plan shall not have any other effect and any option outstanding at the
time of the termination of this Plan may be exercised after termination of this
Plan at any time prior to the expiration date of such option to the same extent
such option would have been exercisable had this Plan not terminated.
PART 11: INTERPRETATION OF THIS PLAN
Section 11.1 Definitions. Each term defined in this Section 11.1 has
the meaning indicated in this Section 11.1 whenever such term is used in this
Plan:
Appreciation Option - The term "appreciation option" has the
meaning such term is given in Section 5.1 of this Plan.
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<PAGE> 13
Board of Directors - The term "Board of Directors" and the
term "Board" each means the Company's Board of Directors as
constituted at the time as of which term shall be applied.
Change of Control Event - The term "Change of Control Event"
means the sale or transfer of all or a portion of the equity ownership
by the majority stockholder of the Company, as a result of which the
majority stockholder no longer controls more than 50% of the
outstanding equity securities of the Company and the power to elect a
majority of the Board of Directors of the Company.
Committee - The term "Committee" has the meaning such
term is given in Section 2.1 of this Plan.
Common Stock - The term "Common Stock" means common stock
issued or issuable by the Company.
Company - The term "Company" as applied as of any given time
means ALC Communications Corporation except that if prior to the given
time any corporation or other entity shall have acquired (directly or
by means of a subsidiary) all or a substantial part of the assets of
the "Company" (as herein defined), and shall have agreed to assume the
obligations of the "Company" under this Plan, then such corporation or
other entity shall be deemed to be the "Company" at the given time.
Employment Termination Date - The term "employment termination
date" as applied to the holder of any option granted under this Plan
means the first date on which such option holder shall not be employed
by either the Company or any subsidiary for any reason (including but
not limited to voluntary termination of employment, involuntary
termination of employment, retirement, disability or death). The
Committee may specify in the original terms of any option granted
under this Plan, or if not so specified, shall determine whether an
authorized leave of absence or absence on military or government
service or absence for any other reason shall constitute a termination
of employment for the purposes of this Plan.
Exercise Price - The term "exercise price" as applied to any
purchase option granted under this Plan means the price at which stock
may be purchased upon exercise of such option established as
prescribed in this Plan. The term "exercise price" as applied to any
appreciation option granted under this Plan means the "exercise price"
established for such option under or pursuant to the provisions of
Section 5.3, Section 5.4, and Part 9 of this Plan as of the given
time.
Expiration Date - The term "expiration date" as applied to
any option granted under this Plan means the date specified in the
option agreement between the Company and the holder as
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the expiration date of such option. If no expiration date shall be
specified in the option agreement relating to any option, then the
expiration date of such option shall be the day prior to the tenth
anniversary of the Granting Date of such option.
Granting Date - The term "Granting Date" has the meaning given
such term in Section 6.2 of this Plan.
Incremental Value - The term "incremental value" has the
meaning such term is given in Section 5.1 of this Plan.
Key Employee - The term "key employee" has the meaning such
term is given in Part 3 of this Plan.
Officer - The term "Officer" means a president, vice
president, treasurer, secretary, controller and any other person who
performs functions corresponding to the foregoing officers for the
Company, any member of the Board of Directors of the Company or any
person performing similar functions with respect to the Company, and
any other participant who is deemed to be an officer or director of
the Company for purposes of Section 16 of the Securities Exchange Act
of 1934 and the rules thereunder, as currently in effect or as amended
from time to time.
Option - The term "option" means any purchase option or
appreciation option granted under this Plan.
Per Share Market Value - The term "per share market value" on
any given date shall be the fair market value of one share of Common
Stock on the given date determined in such manner as shall be
prescribed by the Committee, provided that in the absence of any
specific instructions from the Committee to the contrary, the "per
share market value" on any given date shall be equal to the last per
share sales price reported for the Common Stock for the given date in
the Wall Street Journal (if sales for the Common Stock shall be
reported for the given date in the Wall Street Journal) or (if no
sales of the Common Stock shall be reported for the given date in the
Wall Street Journal) for the first date prior to the given date for
which sales of the Common Stock shall be reported in the Wall Street
Journal.
Purchase Option - The term "purchase option" has the meaning
such term is given in Section 4.1 of this Plan.
Rule 16b-3 - Rule 16b-3 means Rule 16b-3 promulgated by the
Securities and Exchange Commission under Section 16 of the Securities
Exchange Act of 1934, as currently in effect and as it may be amended
from time to time, and any successor rule.
Share - The term "share" means a share of Common Stock.
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<PAGE> 15
Subsidiary - Any corporation shall be deemed to be a
"subsidiary" if (i) securities issued by such corporation entitling the
owner thereof to elect a majority of the corporation's board of
directors are owned and controlled directly or indirectly by the
Company and (ii) the ownership requirements of Section 425(f) of the
Internal Revenue Code are satisfied.
Section 11.2 Board Action. For the purposes of this Plan, the Board
of Directors shall be deemed to have approved any amendment to or termination
of this Plan or to have taken any other action with the Board is authorized to
take with respect to this Plan or any option granted under this Plan if such
amendment, termination or other action is approved (i) by a majority of the
directors present at a duly called and constituted meeting of the Board of
Directors at which a quorum is present, or (ii) by written consent executed by
all persons who are members of the Board of Directors at the time of the
execution of such consent, or (iii) in any other manner which at the time the
Board's actions shall be taken shall be sufficient under applicable law to
constitute approval by the Board of routine matters.
Section 11.3 Captions. The captions (i.e. all underlined words) used
in this Plan are for convenience only, do not constitute a part of this Plan,
and shall not be deemed to limit, characterize or affect in any way any
provisions of this Plan, and all provisions of this Plan shall be construed as
if no captions had been used in this Plan.
Section 11.4 Severability. Whenever possible, each provision in this
Plan and every option at any time granted under this Plan shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Plan or any option at any time granted under this Plan shall
be held to be prohibited by or invalid under applicable law, then (i) such
provision shall be deemed amended to accomplish the objectives of the provision
as original written to the fullest extent permitted by law and (ii) all other
provisions of this Plan and every other option at any time granted under this
Plan shall remain in full force and effect.
Section 11.5 No Strict Construction. No rule of strict construction
shall be implied against the Company, the Committee, or any other person in the
interpretation of any of the terms of this Plan, any option granted under this
Plan or any rule or procedure established by the Committee.
Section 11.6 Choice of Law. Every option at any time granted under
this Plan shall be deemed to be a contract made under the laws of the State of
Michigan. For all purposes, both this Plan and every option granted under this
Plan shall be construed in accordance with and governed by the laws of the
State of Michigan.
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Section 11.7 Committee's Interpretations Conclusive. The Committee
shall have full power and authority to interpret the terms of this Plan, the
terms of options granted under this Plan, and the rules and procedures
established by the Committee. Any determination made by the Committee as to
the meaning of or requirements imposed by or rights of any persons under this
Plan, any option granted under this Plan, or any rule or procedure established
by the Committee shall be binding upon all persons concerned.
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