As filed with the Securities and Exchange Commission
on April 11, 1997
Registration No. 333-_______
=================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
U.S. LONG DISTANCE CORP.
(Exact name of Registrant as specified in its charter)
Delaware 74-2522103
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9311 San Pedro, Suite 100
San Antonio, Texas 78216
(Address of Principal Executive Offices) (Zip Code)
_________________________
1993 NON-EMPLOYEE DIRECTOR PLAN OF U.S. LONG DISTANCE CORP.
(Full title of the plan)
_________________________
W. AUDIE LONG, ESQ.
Senior Vice President - General Counsel
U.S. LONG DISTANCE CORP.
9311 San Pedro, Suite 100
San Antonio, Texas 78216
(210) 525-9009
(Name, address and telephone number
including area code, of agent for service)
Copy to:
JOSEPH A. HOFFMAN, ESQ.
Arter & Hadden
1717 Main St., Suite 4100
Dallas, Texas 75201-4605
(214) 761-2100
_________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering price Per Aggregate Offering
Registered Registered(1) Share(2) Price(2) Amount of Registration Fee(3)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock ($.01 500,000 Shares $11.3125 $5,656,250 $1,714.02
par value)
- ------------------------------------------------------------------------------------------------------------------------------
Series A Junior (4) (4) (4) (4)
Participating
Preferred Stock
Purchase Rights
- ------------------------------------------------------------------------------------------------------------------------------
(1) The securities to be registered represent shares reserved
for issuance under the 1993 Non-Employee Director Plan of U.S. Long
Distance Corp. (the "Plan"). Pursuant to Rule 416, shares of
Common Stock of the Company issuable pursuant to the exercise of
options granted under the Plan in order to prevent dilution
resulting from any future stock split, stock dividend or similar
transaction also are being registered hereunder.
(2) Estimated solely for the purpose of calculating the
registration fee based upon the average of the high and low prices
per share of the Common Stock on the Nasdaq Stock Market's National
Market on April 8, 1997, in accordance with Rules 457(c) and (h)
and General Instruction E to Form S-8.
(3) Relates only to the additional shares of Common Stock
registered hereby and does not include the amount of registration
fee previously paid in connection with the 250,000 shares
previously registered on a Form S-8 Registration Statement.
(4) The Series A Junior Participating Preferred Stock
Purchase Rights (the "Purchase Rights") initially are carried and
traded with the Company's Common Stock. The value attributable to
the Purchase Rights, if any, is reflected in the value of the
Company's Common Stock.
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registration Statement on Form S-8, SEC File No. 33-77404,
filed with Securities and Exchange Commission (the "Commission") on
April 6, 1994 (the "Original Registration Statement"), and the
following documents of U.S. Long Distance Corp. (the "Company")
filed with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are hereby incorporated
by reference in this Registration Statement:
(i) the Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1996;
(ii) the Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 31, 1996;
(iii) the description of the Common Stock, par value $.01
per share, of the Company (the "Common Stock") set
forth in the Registration Statement on Form 10,
filed with the Commission on December 26, 1989,
including any amendment or report filed for the
purpose of updating such description; and
(iv) all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the
date of this Registration Statement shall be deemed
to be incorporated herein by reference and to be a
part hereof from the date of the filing of such
documents until such time as there shall have been
filed a post-effective amendment that indicates
that all securities offered hereby have been sold
or that deregisters all securities remaining unsold
at the time of such amendment.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the
"DGCL") provides broad authority for indemnification of officers
and directors. Article 10 of the Restated Certificate of
Incorporation, as amended, of the Company provides for the
indemnification of its officers and directors to the extent
permitted by such Section 145 of the DGCL.
The Company maintains directors' and officers' liability
insurance that covers the directors and officers of the Company
with policy limits of $10,000,000.
ITEM 8. EXHIBITS
(a) Exhibits.
Exhibit
No. Description
------- --------------------------------------------------
4.1 1993 Non-Employee Director Plan of U.S. Long
Distance Corp., as amended (filed herewith)
4.2 Form of Stock Option Agreement for Directors of
U.S. Long Distance Corp. (filed herewith)
5.1 Opinion of Arter & Hadden (filed herewith)
23.1 Consent of Arter & Hadden (included in their
opinion filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
II-1
<PAGE>
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:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of the
Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) to include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
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 Company's
Restated Certificate of Incorporation, Bylaws 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.
II-2
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), 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 San
Antonio, State of Texas, on April 11, 1997.
U.S. LONG DISTANCE CORP.
By: /s/ Larry M. James
------------------------------
Larry M. James
Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
Signatures Title Date
- ---------- ----- ----
/s/ Parris H. Holmes, Jr. Chairman of the Board April 11, 1997
- --------------------------- of Directors
Parris H. Holmes, Jr.
/s/ Larry M. James Chief Executive Officer, April 11, 1997
- --------------------------- President and Director
Larry M. James (Principal Executive
Officer)
/s/ Phillip J. Storin Senior Vice President, April 11, 1997
- --------------------------- Chief Financial Officer
Phillip J. Storin and Corporate Treasurer
(Principal Financial
and Accounting Officer)
Director April 11, 1997
- ---------------------------
Charles E. Amato
/s/ Gary D. Becker Director April 11, 1997
- ---------------------------
Gary D. Becker
/s/ F. Gardner Parker Director April 11, 1997
- ---------------------------
F. Gardner Parker
II-3
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibit
- ------- --------------------------------------------------
4.1 1993 Non-Employee Director Plan of U.S. Long
Distance Corp., as amended (filed herewith)
4.2 Form of Stock Option Agreement for Directors of
U.S. Long Distance Corp. (filed herewith)
5.1 Opinion of Arter & Hadden (filed herewith)
23.1 Consent of Arter & Hadden (included in their
opinion filed as Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP (filed herewith)
Exhibit 4.1
1993 NON-EMPLOYEE DIRECTOR PLAN OF
U.S. LONG DISTANCE CORP.
1. PURPOSE. The purpose of this Plan is to advance the
interests of U.S. Long Distance Corp., a Delaware corporation (the
"Company"), by providing an additional incentive to attract and
retain qualified and competent directors, upon whose efforts and
judgment the success of the Company is largely dependent, through
the encouragement of stock ownership in the Company by such
persons.
2. DEFINITIONS. As used herein, the following terms shall
have the meaning indicated:
(a) "Annual Director Fee" shall mean a fee payable
annually to each Eligible Person on the business day on or
immediately after December 15 of each year ("Payment Date"), at the
election of the Eligible Person, in either cash of $15,000 or an
Option granted pursuant to Section 5 or partly in cash and partly
in an Option granted pursuant to Section 5.
(b) "Board" shall mean the Board of Directors of U.S.
Long Distance Corp.
(c) "Committee" shall mean the committee, if any,
appointed by the Board pursuant to Section 13 hereof.
(d) "Date of Grant" shall mean the date on which an
Option is granted to an Eligible Person pursuant to this Plan.
(e) "Director" shall mean a member of the Board.
(f) "Eligible Person(s)" shall mean those persons who
are Directors of the Company and who are not employees of the
Company or a Subsidiary.
(g) "Fair Market Value" of a Share on any date of
reference shall be the closing price on the business day
immediately preceding such date. For this purpose, the closing
price of the Shares on any business day shall be (i) if the Shares
are listed or admitted for trading on any United States national
securities exchange, the last reported sale price of Shares on such
exchange, as reported in any newspaper of general circulation, (ii)
if actual transactions in the Shares are included in the Nasdaq
Stock Market's National Market ("Nasdaq National Market") or are
reported on a consolidated transaction reporting system, the last
sales price of the Shares on such system, (iii) if Shares are
otherwise quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ"), or any similar system of
automated dissemination of quotations of securities prices in
common use, the mean between the closing high bid and low asked
quotations for such day of Shares on such system, (iv) if none of
clause (i), (ii) or (iii) is applicable, the mean between the high
bid and low asked quotations for Shares as reported by the National
Daily Quotation Service if at least two securities dealers have
inserted both bid and asked quotations for Shares on at least five
(5) of the ten (10) preceding days.
(h) "Internal Revenue Code" or "Code" shall mean the
Internal Revenue Code of 1986, as it now exists or may be amended
from time to time.
(i) "Nonqualified Stock Option" shall mean an option
that is not an incentive stock option as defined in Section 422 of
the Internal Revenue Code.
(j) "Option" (when capitalized) shall mean any option
granted under Section 4, 5 or 6 of this Plan.
(k) "Optionee" shall mean a person to whom a stock
option is granted under this Plan or any successor to the rights of
such person under this Plan by reason of the death of such person.
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<PAGE>
(l) "Payment Date" shall have the meaning set forth in
Section 2(a).
(m) "Plan" shall mean this 1993 Non-Employee Director
Plan of U.S. Long Distance Corp.
(n) "Share(s)" shall mean a share or shares of the
common stock, par value one cent ($0.01) per share, of the Company.
(o) "Subsidiary" shall mean any corporation (other than
the Company) in any unbroken chain of corporations beginning with
the Company if, at the time of the granting of the Option, each of
the corporations other than the last corporation in the unbroken
chain owns stock possessing more than fifty percent (50%) of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
3. SHARES AND OPTIONS. (a) The maximum number of Shares to
be issued pursuant to Options under this Plan, including shares
issued on the exercise of Shares granted to Eligible Persons prior
to the adoption of the Plan under the Company's outside director
option plan adopted in February 1991, shall be SEVEN HUNDRED FIFTY
THOUSAND (750,000) Shares. Shares issued pursuant to Options
granted under this Plan may be issued from Shares held in the
Company's treasury or from authorized and unissued Shares. If any
Option granted under this Plan shall terminate, expire, or be
cancelled or surrendered as to any Shares, new Options may
thereafter be granted covering such Shares.
(b) Each Option granted hereunder shall be evidenced by
an option agreement (an "Option Agreement") and shall contain such
terms as are not inconsistent with this Plan or any applicable law.
Any person who files with the Committee, in a form satisfactory to
the Committee, a written waiver of eligibility to receive any
Option under this Plan shall not be eligible to receive any Option
under this Plan for the duration of such waiver. Any Option
granted hereunder shall be a Nonqualified Stock Option.
(c) Neither the Plan nor any Option granted under the
Plan shall confer upon any person any right to continue to serve as
a Director.
4. AUTOMATIC GRANT OF OPTIONS. (a) Options shall
automatically be granted to Eligible Persons as follows:
(i) Each Director who is an Eligible Person shall
automatically receive an Option for THIRTY THOUSAND (30,000)
Shares on the date such Eligible Person is initially appointed
or elected an outside Director of the Company, and such Option
will vest as to TEN THOUSAND (10,000) Shares on each of the
first three anniversaries of the Date of Grant; and
(ii) Each Director who is an Eligible Person will
receive, on the first business date after the date of each
annual meeting of stockholders of the Company, commencing with
the annual meeting of stockholders immediately following the
full vesting of any previously granted Director Option, an
option to purchase THIRTY THOUSAND (30,000) Shares, and such
Option will vest as to TEN THOUSAND (10,000) Shares on each of
the first three anniversaries of the Date of Grant.
(b) The Options automatically granted to Directors under
this Plan shall be in addition to regular director's fees,
discretionary Option grants under Section 6 or other benefits with
respect to the Director's position with the Company or its
Subsidiaries.
(c) Any Option that may be granted pursuant to
subparagraph (a) of this Section 4 prior to the approval of this
Plan by the stockholders of the Company may be exercised on or
after the Date of Grant subject to the approval of this Plan by the
stockholders of the Company within twelve (12) months after the
effective date of this Plan. If any Optionee exercises an Option
prior to such stockholder approval, the Optionee must tender the
exercise price at the time of exercise and the Company shall hold
the Shares to be issued pursuant to such exercise until the
stockholders approve this Plan. If this Plan is approved by the
stockholders, the Company shall issue and
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<PAGE>
deliver the Shares as to which the Option has been exercised.
If this Plan is not approved by the stockholders, the Company shall
return the exercise price to the Optionee.
5. ELECTION WITH RESPECT TO ANNUAL DIRECTOR FEE. Each
Eligible Person may elect to receive the Annual Director Fee in
cash or an Option or partly in cash and partly in an Option. Any
election to receive an Option shall be in writing and must be made
not later than December 31 of each year with respect to the Annual
Director Fee to be made on the Payment Date in the subsequent year.
The election may not be revoked or changed after it is made. For
purposes of this election and subject to Section 10, in lieu of
receipt of the Annual Director Fee in cash, as elected by the
Eligible Person, each $2 of cash compensation shall be converted
into an Option, granted as of the Payment Date, to purchase one (1)
share of Common Stock. If an Eligible Person so elects to receive
an Option, the Company shall promptly deliver to such Eligible
Person an Option Agreement. Options granted pursuant to this
Section 5 shall vest immediately. To be eligible to receive the
Annual Director Fee, for any year, the Eligible Person must be a
Director on the Payment Date for that Annual Director Fee. Any
person who files with the Committee, in a form satisfactory to the
Committee, a written waiver of eligibility to receive any Option
under this Plan shall not be eligible to receive any Option under
this Plan for the duration of such waiver.
6. DISCRETIONARY GRANTS OF OPTIONS. (a) At any time and
from time to time during the duration of this Plan and subject to
the provisions herein, Options may be granted by the Board to any
Eligible Person for such number of Shares as the Board in its
discretion shall deem to be in the best interest of the Company and
which will serve to further the purposes of the Plan. Upon the
grant of an Option, the Company shall promptly deliver to such
Eligible Person an Option Agreement. Options granted pursuant to
this Section 6 shall vest according to the vesting schedule
provided in the Option Agreement.
(b) The Options granted to Directors pursuant to this
Section 6 shall be in addition to regular directors' fees,
automatic grants of Options under Section 4 herein or any other
benefits with respect to the Director's position with the Company
or its Subsidiaries.
7. OPTION PRICE. The option price per Share of any Option
granted pursuant to this Plan shall be one hundred percent (100%)
of the Fair Market Value per Share on the Date of Grant.
8. EXERCISE OF OPTIONS. Options may be exercised at any
time after the date on which the Options, or any portion thereof,
are vested until the Option expires pursuant to Section 9;
provided, however, that at least six months must elapse from the
date of the acquisition of the Option to the date of disposition of
the Option (other than upon exercise or conversion) or its
underlying Common Stock. An Option shall be deemed exercised when
(i) the Company has received written notice of such exercise in
accordance with the terms of the Option Agreement, (ii) full
payment of the aggregate option price of the Shares as to which the
Option is exercised has been made and (iii) arrangements that are
satisfactory to the Committee in its sole discretion have been made
for the Optionee's payment to the Company of the amount, if any,
that the Committee determines to be necessary for the Company to
withhold in accordance with applicable federal or state income tax
withholding requirements. Pursuant to procedures approved by the
Committee, tax withholding requirements, at the option of an
Optionee, may be met by withholding Shares otherwise deliverable to
the Optionee upon the exercise of an Option. Unless further
limited by the Committee in any Option Agreement, the Option price
of any Shares purchased shall be paid solely in cash, by certified
or cashier's check, by money order, with Shares (but with Shares
only if permitted by the Option Agreement or otherwise permitted by
the Committee in its sole discretion at the time of exercise) or by
a combination of the above; provided, however, that the Committee
in its sole discretion may accept a personal check in full or
partial payment of any Shares. If the exercise price is paid in
whole or in part with Shares, the value of the Shares surrendered
shall be their Fair Market Value on the date the Shares are
received by the Company.
9. TERMINATION OF OPTION PERIOD. The unexercised portion of
an Option shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the
following:
(a) with respect to Options granted automatically
pursuant to Section 4(a), thirty (30) days after the date that
an Optionee ceases to be a Director regardless of the reason
therefor other than as a result of such termination by death
of the Optionee;
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<PAGE>
(b) with respect to Options granted automatically
pursuant to Section 4(a), (y) one (1) year after the date that
an Optionee ceases to be a Director by reason of death of the
Optionee or (z) six (6) months after the Optionee shall die if
that shall occur during the thirty-day period described in
Subsection 9(a); or
(c) the fifth (5th) anniversary of the Date of Grant of
the Option.
10. ADJUSTMENT OF SHARES. (a) If at any time while this
Plan is in effect or unexercised Options are outstanding, there
shall be any increase or decrease in the number of issued and
outstanding Shares through the declaration of a stock dividend or
through any recapitalization resulting in a stock split-up,
combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares then subject to being optioned
under this Plan, so that the same proportion of the
Company's issued and outstanding Shares shall continue to
be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof
then subject to any outstanding Option, so that the same
proportion of the Company's issued and outstanding Shares
shall remain subject to purchase at the same aggregate
exercise price.
(b) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any
class, or securities convertible into shares of capital stock of
any class, either in connection with a direct sale or upon the
exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into
such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the
number of or exercise price of Shares then subject to outstanding
Options granted under this Plan.
(c) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under this Plan shall not
affect in any manner the right or power of the Company to make,
authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the
Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of
debt securities, or preferred or preference stock that would rank
above the Shares subject to outstanding Options; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer
or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of
a similar character or otherwise.
11. TRANSFERABILITY OF OPTIONS. Each Option Agreement shall
provide that such Option shall not be transferable by the Optionee
otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order and that so long
as an Optionee lives, only such Optionee or his or her guardian or
legal representative shall have the right to exercise the related
Option.
12. ISSUANCE OF SHARES. No person shall be, or have any of
the rights or privileges of, a stockholder of the Company with
respect to any of the Shares subject to an Option unless and until
certificates representing such Shares shall have been issued and
delivered to such person. As a condition of any transfer of the
certificate for Shares, the Committee may obtain such agreements or
undertakings, if any, as it may deem necessary or advisable to
assure compliance with any provision of this Plan, any Option
Agreement or any law or regulation, including, but not limited to,
the following:
(i) A representation, warranty or agreement by the
Optionee to the Company, at the time any Option is
exercised, that he or she is acquiring the Shares to be
issued to him or her for investment and not with a view
to, or for sale in connection with, the distribution of
any such Shares; and
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<PAGE>
(ii) A representation, warranty or agreement to be
bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the
provisions of any securities law deemed by the Committee
to be applicable to the issuance of the Shares and are
endorsed upon the Share certificates.
Share certificates issued to an Optionee who is a party to any
stockholder agreement or a similar agreement shall bear the legends
contained in such agreements.
13. ADMINISTRATION OF THE PLAN. (a) This Plan shall be
administered by a stock option committee (the "Committee")
consisting of not fewer than three (3) members of the Board;
provided, however, that if no Committee is appointed, the Board
shall administer this Plan and in such case all references to the
Committee shall be deemed to be references to the Board. The
Committee shall have all of the powers of the Board with respect to
this Plan. Any member of the Committee may be removed at any time,
with or without cause, by resolution of the Board, and any vacancy
occurring in the membership of the Committee may be filled by
appointment by the Board.
(b) The Committee, from time to time, may adopt rules
and regulations for carrying out the purposes of this Plan. The
determinations and the interpretation and construction of any
provision of this Plan by the Committee shall be final and
conclusive.
(c) Any and all decisions or determinations of the
Committee shall be made either (i) by a majority vote of the
members of the Committee at a meeting or (ii) without a meeting by
the written approval of a majority of the members of the Committee.
(d) This Plan is intended and has been drafted to comply
with Rule 16b-3, as amended, under the Securities Exchange Act of
1934, as amended. If any provision of this Plan does not comply
with Rule 16b-3, as amended, this Plan shall be automatically
amended to comply with Rule 16b-3, as amended.
14. INTERPRETATION. (a) If any provision of this Plan is
held invalid for any reason, such holding shall not affect the
remaining provisions hereof, but instead this Plan shall be
construed and enforced as if such provision had never been included
in this Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO DELAWARE CONFLICT OF
LAW PROVISIONS.
(c) Headings contained in this Plan are for convenience
only and shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter
gender shall be a reference to such other gender as is appropriate.
15. SECTION 83(B) ELECTION. If as a result of exercising an
Option an Optionee receives Shares that are subject to a
"substantial risk of forfeiture" and are not "transferable" as
those terms are defined for purposes of Section 83(a) of the Code,
then such Optionee may elect under Section 83(b) of the Code to
include in his gross income, for his taxable year in which the
Shares are transferred to such Optionee, the excess of the Fair
Market Value of such Shares at the time of transfer (determined
without regard to any restriction other than one which by its terms
will never lapse), over the amount paid for the Shares. If the
Optionee makes the Section 83(b) election described above, the
Optionee shall (i) make such election in a manner that is
satisfactory to the Committee, (ii) provide the Company with a copy
of such election, (iii) agree to promptly notify the Company if any
Internal Revenue Service or state tax agent, on audit or otherwise,
questions the validity or correctness of such election or of the
amount of income reportable on account of such election, and (iv)
agree to such withholding as the Committee may reasonably require
in its sole and absolute discretion.
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16. EFFECTIVE DATE AND TERMINATION DATE. The effective date
of this Plan or any amendment thereto is the date on which the
Board adopted this Plan or such amendment; provided, however, if
this Plan is not approved by the stockholders of the Company within
twelve (12) months after the effective date, then, in such event,
this Plan and all Options granted pursuant to this Plan shall be
null and void. This Plan shall terminate on September 17, 2000,
and any Option outstanding on such date will remain outstanding
until it has either expired or has been exercised.
Exhibit 4.2
[DATE]
[NAME]
[ADDRESS]
[ADDRESS]
Dear [Mr./Ms.] [OPTIONEE'S LAST NAME]:
On behalf of U.S. Long Distance Corp. (the "Company"), I am
pleased to announce that you (the "Participant") have been awarded,
under the terms of the 1993 Non-Employee Director Plan of U.S. Long
Distance Corp., as amended (the "Plan"), a non-qualified stock
option to purchase [SHARES] shares of common stock of the Company
(the "Shares"). The option to acquire the Shares is awarded and
granted upon the following terms and conditions as well as those
terms, conditions, and limitations as set forth in the Plan, which
is attached hereto and incorporated herein for all purposes:
1. The exercise price for each share of common stock is
$[OPTION PRICE].
2. For so long as you are a director of the Company, the
right to exercise such option shall vest as follows:
(a) 33-1/3% [(SHARES 1)] on [ANNIVERSARY 1];
(b) 33-1/3% [SHARES 2)] on [ANNIVERSARY 2]; and
(c) 33-1/3% [SHARES 3)] on [ANNIVERSARY 3].
3. Subject to Paragraph 5 herein, the options which have
vested in accordance with the schedule set forth in Paragraph 2
above may be exercised at any time on or before [EXPIRATION DATE].
No partial exercise of such option may be for less than 100 full
shares. In no event shall the Company be required to transfer
fractional shares to the Participant.
4. The option granted under this Agreement shall be
exercisable from time to time, as provided above, by the payment in
cash to the Company of the purchase price of the shares which the
Participant elects to purchase. The Company shall not be required
to transfer or deliver any certificate or certificates for shares
of the Company's common shares purchased upon exercise of the
option granted under this Agreement until all then applicable
requirements of law have been met.
<PAGE>
[Mr./Ms.] [OPTIONEE'S NAME]
[DATE]
Page Two
5. Subject to the limitations imposed pursuant to Section 7
of the Plan, the option and all rights granted by this Agreement,
to the extent those rights have not been exercised, will terminate
and become null and void on [EXPIRATION DATE]. If the Participant
dies, the person or persons to whom his vested rights under the
option shall pass, whether by will or by the applicable laws of
descent and distribution, may exercise such vested option to the
extent the Participant was entitled to exercise the option on the
date of death, at any time within a period of one year after his
death, but not after [EXPIRATION DATE].
6. During the lifetime of the Participant, the option and
all rights granted in this Agreement shall be exercisable only by
the Participant, and except as Paragraph 5 otherwise provides, the
option and all rights granted under this contract shall not be
transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise), and shall not be subject to
execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of such
option or of such rights contrary to the provisions in this
Agreement, or upon the levy of any attachment or similar process
upon such option or such rights, such option and such rights shall
immediately become null and void.
7. Notwithstanding the foregoing, upon the sale of
substantially all of the assets of the Company or change in control
of forty percent (40%) of the outstanding voting shares of the
Company, all non-vested options shall immediately vest.
8. In the event of any change in the common shares of the
Company subject to the option granted hereunder, through merger,
consolidation, reorganization, recapitalization, stock split, stock
dividend or other change in the corporate structure, without
consideration, appropriate adjustment shall be made by the Company
in the number of shares subject to such option and the price per
share. Upon the dissolution or liquidation of the Company other
than in connection with a transaction to which such Section is
applicable, the option granted under this Agreement shall terminate
and become null and void, but the Participant shall have the right
immediately prior to such dissolution or liquidation to exercise
the option granted hereunder to the full extent not before
exercised.
9. Neither the Participant nor his executor, administrator,
heirs or legatees shall be or have any rights or privileges of a
shareholder of the Company in respect of the shares transferable
upon exercise of the option granted under this Agreement, unless
and until certificates representing such shares shall have been
endorsed, transferred and delivered and the transferee has caused
his/her name to be entered as the shareholder of record on the
books of the Company.
10. The Shares underlying your options have been registered
with the Securities and Exchange Commission, and the Shares issued
upon the exercise of your options will be freely tradable, subject,
with respect to Shares held by "affiliates" of the Company, to
compliance with Rule 144 of the Securities and Exchange Commission.
11. The Company does not attempt to advise you on any
consequences arising from your acquisition of the Shares through
the exercise of the option.
<PAGE>
[Mr./Ms.] [OPTIONEE'S NAME]
[DATE]
Page Three
12. The terms and conditions of the Plan, unless expressly
supplemented by this Agreement, shall continue unchanged and in
full force and effect. To the extent that any terms or provisions
of this Agreement are or may be deemed expressly inconsistent with
any terms or conditions of the Plan, the terms of this Agreement
shall control.
13. The Participant hereby agrees to take whatever additional
actions and execute whatever additional documents the Company may
in its reasonable judgment deem necessary or advisable in order to
carry out or effect one or more of the obligations or restrictions
imposed on the Participant pursuant to the express provisions of
this Agreement.
14. The rights of the Participant are subject to modification
and termination in certain events as provided in this Agreement and
the Plan.
15. This Agreement shall be governed by, and construed in
accordance with, the substantive laws of the State of Delaware
applicable to contracts made and to be wholly performed therein.
16. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which together shall constitute one and the same instrument.
17. This Agreement and the Plan constitute the entire
agreement between the parties with respect to the subject matter
hereof, and supersede all previously written or oral negotiations,
commitments, representations and agreements with respect thereto.
If the foregoing represents your understanding of the terms
and conditions upon which your options have been granted, please
execute in the space provided below, returning an executed copy to
the undersigned.
Sincerely,
Larry M. James
Chief Executive Officer
and President
AGREED:
________________________________
[OPTIONEE'S NAME]
Exhibit 5.1
ARTER & HADDEN
1717 Main Street, Suite 4100
Dallas, Texas 75201
Tel: (214) 761-2100
Fax: (214) 741-7139
April 11, 1997
U.S. Long Distance Corp.
9311 San Pedro, Suite 100
San Antonio, Texas 78216
Re: U.S. Long Distance Corp. - Registration Statement on Form S-8
1993 Non-Employee Director Plan of U.S. Long Distance Corp
Gentlemen:
We have acted as counsel to U.S. Long Distance Corp., a
Delaware corporation (the "Company"), in connection with the
preparation of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission on or about April 11, 1997, under the
Securities Act of 1933, as amended (the "Securities Act"), relating
to an additional 500,000 shares of common stock, $0.01 par value
per share, of the Company (the "Common Stock") that may be issued
from time to time upon the exercise of stock options (collectively,
the "Options") that may be granted under the 1993 Non-Employee
Director Plan of U.S. Long Distance Corp. (the "Plan") in addition
to the 250,000 shares of Common Stock previously reserved for
issuance under the Plan.
You have requested the opinion of this firm with respect to
certain legal aspects of the Registration Statement. In connection
therewith, we have examined and relied upon the original, or copies
identified to our satisfaction, of (1) the Restated Certificate of
Incorporation and the Bylaws, both as amended, of the Company; (2)
minutes and records of the corporate proceedings of the Company
with respect to the establishment, approval and amendment by the
Board of Directors of the Plan, the granting of the Options
pursuant to the Plan, the issuance of shares of Common Stock in
accordance with the terms of the Plan and certain related matters;
(3) the Registration Statement and exhibits thereto, including the
Plan listed as an exhibit to the Registration Statement; and (4)
such other documents and instruments as we have deemed necessary
for the expression of the opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As
to various questions of fact material to this opinion, and as to
the content and form of the Restated Certificate of Incorporation,
the Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deem
reasonably appropriate, upon representations or certificates of
officers and directors of the Company and upon
<PAGE>
documents, records and instruments furnished to us by the Company,
without independent check or verification of their accuracy.
Based upon our examination, consideration of, and reliance on
the documents and other matters described above, and subject to the
comments and exceptions noted below, we are of the opinion that,
assuming (i) the Options to be granted in the future will be duly
granted in accordance with the terms of the Plan, (ii) the Company
maintains an adequate number of authorized but unissued shares
and/or treasury shares of Common Stock available for issuance to
those persons who exercise Options granted under the Plan, and
(iii) the consideration for the shares of Common Stock issuable
upon the exercise of such Options is actually received by the
Company as provided in the Plan and the particular Option and such
consideration exceeds the par value of such shares, then the shares
of Common Stock issued pursuant to the exercise of the Options
granted under and in accordance with the terms of the Plan will be
duly and validly issued, fully paid and nonassessable.
We bring to your attention the fact that our legal opinions
are an expression of professional judgment and not guaranties of
result. This opinion is rendered as of the date hereof, and we
undertake no, and hereby disclaim any, obligation to advise you of
any changes in or new developments that might affect any matters or
opinions set forth herein.
This opinion is limited in all respects to the General
Corporation Law of the State of Delaware as in effect on the date
hereof; however, we are not members of the Bar of the State of
Delaware and our knowledge of its General Corporation Law is
derived from a reading of the most recent compilation of that
statute available to us without consideration of any judicial or
administrative interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to references to our firm
included in or made a part of the Registration Statement. In
giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/s/ Arter & Hadden
ARTER & HADDEN
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our
reports dated November 14, 1996, included in U.S. Long Distance
Corp.'s Form 10-K for the year ended September 30, 1996 and to all
references to our firm, included in this Registration Statement.
/s/ Arthur Andersen LLP
San Antonio, Texas
April 9, 1997
