As filed with the Securities and Exchange Commission
on June 24, 1997
Registration No. 33-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
HUNGARIAN TELEPHONE AND CABLE CORP.
(Exact name of registrant as specified in its charter)
Delaware 13-3652685
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 First Stamford Place, Stamford, CT 06902
- ------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
HUNGARIAN TELEPHONE AND CABLE CORP.
1992 INCENTIVE STOCK OPTION PLAN, AS AMENDED,
HUNGARIAN TELEPHONE AND CABLE CORP.
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN, and
EMPLOYMENT AGREEMENTS WITH FRANK R. COHEN,
ROBERT GENOVA, AND RICHARD P. HALKA
------------------------------------------------------------------------
(Full title of the plans)
Peter T. Noone
General Counsel
Hungarian Telephone and Cable Corp.
100 First Stamford Place
Stamford, CT 06902
(203) 348-9069
(Name, address including zip code,
and telephone number including
area code, of agent for service)
------------------------------------------------------------------------
<PAGE>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ------------------------------------------------------------------------
Common Stock,
par value
$.001 per
Share 1,146,497(1)(2) $8.8018(3) $10,091,238(3) $3,480.00
- ------------------------------------------------------------------------
(1) Consists of (i) 1,141,497 shares of Common Stock, par value $.001 per
share ("Common Stock"), issuable under (a) the Hungarian Telephone and
Cable Corp. 1992 Incentive Stock Option Plan, as amended (the "Incentive
Plan"), (b) the Hungarian Telephone and Cable Corp. Non-Employee Director
Stock Option Plan (the "Director Plan") or (c) stock options granted to
Frank R. Cohen, the Registrant's former Chief Financial Officer, and
Robert Genova, the Registrant's former President and Chief Executive
Officer, pursuant to their employment agreements both dated as of
September 12, 1995 (the "Employment Agreements"), and (ii) 5,000 shares
of Common Stock previously issued to Richard P. Halka, the Registrant's
Controller and Treasurer, pursuant to his amended and restated employment
agreement dated as of January 9, 1997 (the "Halka Employment Agreement").
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of
certain events specified in the Incentive Plan, the Director Plan or
Employment Agreements, may become subject to the Incentive Plan, the
Director Plan or the Employment Agreements.
(3) Of the total of 1,146,497 shares of Common Stock registered hereby, (i)
an aggregate of 422,500 shares are issuable upon exercise of outstanding
options previously awarded under the Incentive Plan at an average
exercise price of $11.68 per share, (ii) an aggregate of 45,000 shares
are issuable upon exercise of outstanding options previously awarded
under the Director Plan at an average exercise price of $9.44 per share,
(iii) an aggregate of 248,997 shares are issuable upon exercise of
outstanding options previously awarded under the Employment Agreements at
an average exercise price of $4.00 per share, (iv) 5,000 shares have been
awarded under the Halka Employment Agreement and (v) and 220,000 and
205,000 shares are reserved for issuance under the Incentive Plan and the
Director Plan, respectively. The offering price for the shares registered
hereby have been calculated in accordance with Rule 457(c) and (h), in
each case solely for the purpose of calculating the registration fee and,
in the case of (iv) and (v) above, based on the average of the high and
low prices of the Common Stock as reported on the American Stock Exchange
on June 20, 1997 of $8.6875 per share.
- --------------------------------------------------------------------------------
Note: This Registration Statement, pursuant to Instruction C of Form S-8,
includes a Re-Offer Prospectus for (i) the resale of 1,141,497 shares of Common
Stock issuable upon the exercise of options granted or to be granted pursuant to
either the Incentive Plan or the Director Plan or the Employment Agreements, and
(ii) 5,000 shares of Common Stock issued under the Halka Employment Agreement.
- --------------------------------------------------------------------------------
<PAGE>
HUNGARIAN TELEPHONE AND CABLE CORP.
Cross-Reference Sheet Showing Location in Re-Offer Prospectus
of Information Required by Items of Form S-8
Form S-8 Item and Heading Location in Prospectus
- -------------------------- ----------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus Front Cover Page
2. Inside Front and Outside Back
Cover Page of Prospectus Inside Front Cover Page
3. Summary Information, Risk
Factors and Ratio of Earnings
to Fixed Charges The Company
4. Use of Proceeds Use of Proceeds
5. Determination of Offering
Price Not applicable
6. Dilution Not applicable
7. Selling Security Holders Selling Stockholders
8. Plan of Distribution Plan of Distribution
9. Description of Securities to
be Registered Description of Capital
Stock
10. Interest of Named Experts
and Counsel Legal Matters
11. Material Changes Not applicable
12. Incorporation of Certain
Information by Reference Incorporation of
Certain Documents by
Reference
13. Disclosure of Commission
Position on Indemnification for Indemnification of
Securities Act Liabilities Directors and Officers
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 will be sent or given to all of the participants in the Hungarian Telephone
and Cable Corp. 1992 Incentive Stock Option Plan, as amended, and the Hungarian
Telephone and Cable Corp. Non-Employee Director Stock Option Plan and the
relevant documents will also be delivered to Messrs. Cohen, Genova and Halka as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act").
Such documents (along with the documents incorporated by reference into
the Registration Statement pursuant to Item 3 of Part II hereof) constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act.
<PAGE>
RE-OFFER PROSPECTUS
HUNGARIAN TELEPHONE AND CABLE CORP.
1,146,497 SHARES OF COMMON STOCK
--------------------------------
(Par Value $0.001 Per Share)
OFFERED AS SET FORTH HEREIN PURSUANT TO
HUNGARIAN TELEPHONE AND CABLE CORP.'S
1992 INCENTIVE STOCK OPTION PLAN, AS AMENDED,
HUNGARIAN TELEPHONE AND CABLE CORP.'S
NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN AND
EMPLOYMENT AGREEMENTS BETWEEN HUNGARIAN TELEPHONE AND CABLE CORP.
AND FRANK R. COHEN, ROBERT GENOVA AND RICHARD P. HALKA.
-------------------------
This Prospectus relates to offers and sales by certain officers and
directors of Hungarian Telephone and Cable Corp., a Delaware corporation (the
"Company" or the "Registrant"), who may be deemed to be "affiliates" of the
Company as defined in Rule 405 under the Securities Act of 1933, as amended (the
"Securities Act"), of up to 425,000 shares of Common Stock of the Company that
may be acquired by such persons upon exercise of stock options that may be
granted to such selling stockholders pursuant to either the Hungarian Telephone
and Cable Corp. 1992 Incentive Stock Option Plan, as amended (the "Incentive
Plan") or the Hungarian Telephone and Cable Corp.'s Non-Employee Director Stock
Option Plan (the "Director Plan") (the "425,000 Option Shares").
This Prospectus also relates to offers and sales of (i) up to 716,497
shares of Common Stock that are issuable upon the exercise of outstanding
options previously granted to certain current or former officers and directors
of the Company pursuant to either the Incentive Plan or the Director Plan or
certain employment agreements (the "716,497 Option Shares"), and (ii) 5,000
currently outstanding shares of Common Stock of the Company that were acquired
prior to June , 1997 by a certain employee of the Company pursuant to an
employment agreement (the "Employee Shares"). The 425,000 Option Shares, 716,497
Option Shares and the Employee Shares are herein referred to collectively as the
"Shares". The current or former officers and directors selling the Shares are
hereinafter referred to collectively as the "Selling Stockholders."
The Shares may be offered for sale hereby from time to time by any or
all of the Selling Stockholders for their own benefit. The Company will receive
no portion of the proceeds of sales made hereunder. All expenses of registration
incurred in connection with this offering are being borne by the Company, but
all selling and other expenses incurred by the Selling Stockholders will be
borne by such Selling Stockholders.
All or a portion of the Shares offered hereby may be offered for sale,
from time to time in one or more transactions on a securities exchange, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. All brokers' commissions, concessions or discounts will be paid by the
Selling Stockholders.
<PAGE>
The Selling Stockholders and any brokers executing sale orders on
behalf of the Selling Stockholders may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), in
which event commissions received by such brokers may be deemed to be
underwriting commissions under the Securities Act.
The Common Stock of the Company trades on the American Stock Exchange
under the symbol "HTC." On June , 1997, the average of the high and low sale
prices of the Company's Common Stock as reported on the American Stock Exchange
was $ .
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") OR ANY STATE SECURITIES COMMISSION (THE
"STATE COMMISSION") NOR HAS THE COMMISSION OR ANY STATE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------------
NEITHER THE FACT THAT A REGISTRATION STATEMENT HAS BEEN FILED WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION NOR THE FACT THAT A SECURITY IS
EFFECTIVELY REGISTERED CONSTITUTES A FINDING BY THE SECRETARY OF STATE OF NEW
HAMPSHIRE THAT THE REGISTRATION STATEMENT IS TRUE, COMPLETE AND NOT MISLEADING.
NEITHER ANY SUCH FACT NOR THE FACT THAT AN EXEMPTION OR EXCEPTION IS AVAILABLE
FOR A SECURITY OR A TRANSACTION MEANS THAT THE SECRETARY OF STATE OF NEW
HAMPSHIRE HAS PASSED IN ANY WAY UPON THE MERITS OR QUALIFICATIONS OF, OR
RECOMMENDED OR GIVEN APPROVAL TO, ANY PERSON, SECURITY, OR TRANSACTION. IT IS
UNLAWFUL TO MAKE, OR CAUSE TO BE MADE, TO ANY PROSPECTIVE PURCHASER, CUSTOMER,
OR CLIENT ANY REPRESENTATION INCONSISTENT WITH THE PROVISIONS OF THIS PARAGRAPH.
-----------------
No person has been authorized to give any information or to make any
representations, other than as contained herein, in connection with the offer
contained in this Prospectus, and, if given or made, such information or
representations must not be relied upon. This Prospectus does not constitute an
offering in any state in which such offering may not lawfully be made. Neither
the delivery of this Prospectus nor any sales made hereunder shall under any
circumstances create any implication that there has been no change in the
information herein or in the affairs of the Company since the date of this
Prospectus.
-------------------------
The Date of this Prospectus is June 24, 1997
---------------
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information........................................ 1
Incorporation of Certain Documents by Reference.............. 1
The Company.................................................. 3
Use of Proceeds.............................................. 3
Description of Capital Stock................................. 3
Selling Stockholders......................................... 4
Transfer Agent and Registrar................................. 5
Plan of Distribution......................................... 5
Legal Matters................................................ 6
Indemnification of Directors and Officers.................... 6
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and in
accordance therewith files reports and other information with the Commission.
Such reports, proxy statements and other information can be inspected and copied
at the Public Reference Facilities of the Commission at the offices of the
Commission at Room 1024, 450 Fifth Street, NW, Washington, D.C. 20549; and at
its regional offices located at Northwestern Atrium Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661-2511, and at 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material may also be obtained,
upon payment of prescribed fees, from the Public Reference Section of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
Such material also may be accessed electronically by means of the Commission's
home page on the Internet at http://www.sec.gov. In addition, such material,
dated through December 19, 1995, is also available for inspection at the offices
of the NASDAQ Stock Market, Reports Section, 1735 K Street, N.W., Washington,
D.C. 20006. Such material, beginning December 20, 1995, is also available for
inspection at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York 10006. This Prospectus does not contain all of the information
set forth in the Registration Statements of which this Prospectus is a part and
which the Company has filed with the Commission. For further information with
respect to the Company and the securities offered hereby, reference is made to
the Registration Statement, including the exhibits filed as a part thereof,
copies of which can be inspected at, or obtained at prescribed rates in the
manner set forth above. Additional updating information with respect to the
Company may be provided in the future by means of appendices or supplements to
the Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon written or oral request of
such person, a copy of any and all of the information that has been or may be
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Peter T. Noone, General Counsel, Hungarian
Telephone and Cable Corp., 100 First Stamford Place, Stamford, Connecticut
06902; telephone number (203) 348-9069.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the
Commission are hereby incorporated by reference into this Prospectus and are
contained in a file maintained at the principal United States executive offices
of the Company.
1. The Company's Annual Report on Form 10-K for the year ended December 31,
1996.
<PAGE>
-2-
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
3. All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report referred to above.
4. The Company's Definitive Proxy Statement for its Annual Meeting of
Stockholders held on May 16, 1997.
5. The description of the Common Stock, par value $.001 per share, of
the Company contained in the Company's Registration Statement filed under
Section 12(b) of the Exchange Act, including any amendments or reports filed for
the purpose of updating such description. See "Description of Capital Stock" in
this Prospectus for a description of the Registrant's Common Stock.
All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act after the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof and thereof from the date of filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or therein or in any other subsequently filed document which
also is, or is deemed to be, incorporated by reference herein or therein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests for information regarding the
Incentive Plan, the Directors Plan or the employment agreements or the
aforementioned documents should be directed to Peter T. Noone, General Counsel,
Hungarian Telephone and Cable Corp., 100 First Stamford Place, Stamford,
Connecticut 06902; telephone number (203) 348-9069.
All information appearing in this Prospectus is qualified in its
entirety by the detailed information, including financial statements, appearing
in the documents incorporated herein or therein by reference.
<PAGE>
-3-
THE COMPANY
The Company, a Delaware corporation, through its Hungarian
subsidiaries, is engaged in the provision of basic telephone services in five
defined regions within the Republic of Hungary.
The Company's United States office is located at 100 First Stamford
Place, Suite 204, Stamford, Connecticut 06902; telephone (203) 348-9069. The
Company's principal office in Hungary is located at Kiralyhago u.2, H-1126,
Budapest; telephone (361) 457-6300.
See Exhibit 99.6 to the Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997, which is incorporated herein by reference, for
a discussion of certain factors that have affected, and in the future could
affect, the Company's operating and financial performance.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
offered hereby.
DESCRIPTION OF CAPITAL STOCK
Common Stock
The authorized capital stock of the Company consists of (i) 25,000,000
shares of Common Stock, par value $.001 and (ii) 5,000,000 shares of Preferred
Stock, par value $.001 per share (the "Preferred Stock").
The holders of Common Stock are entitled to one vote for each share of
record held by them on all matters to be voted on by stockholders. There is no
right to cumulative voting.
The holders of Common Stock are entitled to receive dividends when, as
and if declared by the Board of Directors out of funds legally available
therefor. In the event of liquidation, dissolution or winding up of the affairs
of the Company, the holders of Common Stock are entitled to share ratably in all
assets remaining available for distribution to them after payment of
liabilities. Except for certain existing shareholders, holders of shares of
Common Stock have no preemptive, subscription, conversion, redemption or sinking
fund rights. The rights, preferences and privileges of holders of Common Stock
are subject to any class or series of Preferred Stock which the Company may
issue in the future.
Preferred Stock
The Board of Directors of the Company is authorized to issue Preferred
Stock in classes or series and to fix the designations, preferences,
qualifications, limitations, or restrictions of any class or series with respect
to the rate and nature of dividends, the price and terms and conditions on which
shares may be redeemed, the amount payable in the event of voluntary or
involuntary liquidation, the terms and conditions for conversion or exchange
into any other class or series of stock, voting rights and other terms.
<PAGE>
-4-
SELLING STOCKHOLDERS
The Shares that may be offered for sale from time to time by the
Selling Stockholders consist of Shares that were acquired or may be acquired by
such Selling Stockholders pursuant to either the Incentive Plan or the Director
Plan or their individual employment agreements.
The following table sets forth the name of each Selling Stockholder,
the nature of his position with the Company, the number of Shares of Common
Stock owned by each Selling Stockholder prior to the offering, and the number of
Shares and (if one percent or more) the percentage of the class to be owned by
such Selling Stockholder after the offering.
Shares Shares
Owned Shares Owned
Prior to Offered After
Name and Title Offering Hereby Offering Percent
- --------------------------------------------------------------------------------
David A. Finley
Director 10,000 10,000 0 *
James G. Morrison
Director, President and
Chief Executive Officer 68,500 30,000 38,500 *
John B. Ryan
Director 25,500 25,000 500 *
James H. Season
Director 15,000 15,000 0 *
William E. Starkey
Director 10,000 10,000 0 *
Richard P. Halka
Treasurer and Controller 5,000 5,000 0 *
Andrew E. Nicholson
Senior Vice President-
Finance 46,250 20,000 26,250 *
(continued)
<PAGE>
-5-
Shares Shares
Owned Shares Owned
Prior to Offered After
Name and Title Offering Hereby Offering Percent
- --------------------------------------------------------------------------------
Daniel R. Vaughn
Vice President 40,170 20,000 20,170 *
Frank R. Cohen
former Director, Chief
Financial Officer and
Treasurer; current
Consultant 112,750 87,750 25,000 *
Warren B. French, Jr.
Former Director 5,800 5,000 800 *
Robert Genova
former Director, President
and Chief Executive Officer;
current Consultant 321,997 293,747 28,250 *
Donald K. Roberton
former Vice Chairman;
current Consultant 200,000 200,000 0 *
- ---------------------------
* Represents as to each Selling Stockholder less than 1% of the shares of Common
Stock outstanding.
Note: The remaining 425,000 Shares offered in this Re-Offer Prospectus may be
re-offered from time to time by certain of the officers and directors listed
above or by other officers and/or directors. This Re-Offer Prospectus will be
supplemented by amendment from time to time as their names and the amounts of
Shares to be re-offered become known.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock of the Company is
Continental Stock Transfer & Trust Company, 2 Broadway, New York, New York
10004.
PLAN OF DISTRIBUTION
The Selling Stockholders have advised the Company that they wish to be
in a position to sell the Shares offered hereby from time to time. The number of
Shares that actually may be sold by the Selling Stockholders will be determined
by each Selling Stockholder and will depend on a number of factors, including
the market price of the Common Stock and the Selling Stockholders' personal
financial circumstances.
<PAGE>
-6-
The Selling Stockholders may sell shares of Common Stock in any of the
following ways: (i) through dealers; (ii) through agents; or (iii) directly to
one or more purchasers. The distribution of the shares of Common Stock may be
effected from time to time in one or more transactions on a securities exchange
(including the American Stock Exchange, the exchange on which the Registrant's
Common Stock is currently listed), in negotiated transactions or otherwise, at
market prices prevailing at the time of the sale, at prices related to such
prevailing market prices or at negotiated prices or fixed prices. The Selling
Stockholders may effect such transactions by selling shares of Common Stock to
or through broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions, or commissions from Selling Stockholders
and/or commissions from purchasers of shares of Common Stock for whom they may
act as agents. The Selling Stockholders and any broker-dealers or agents that
participate in the distribution of shares of Common Stock by them might be
deemed to be underwriters, and any discounts, commissions or concessions
received by any such broker-dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act.
Each of the Selling Stockholders is selling the Shares for his own
account. The Company will not receive any of the proceeds from the sale of the
Shares.
The Company intends to maintain the effectiveness of the Registration
Statement (of which this Prospectus is a part) during the period commencing on
the date hereof and ending at such time as all the Shares are sold or the
Company delivers to the Selling Stockholders an opinion of counsel to the effect
that the Shares may be sold without compliance with the registration
requirements of the Securities Act. The Company is bearing all expenses incurred
in connection with the registration of the Shares.
LEGAL MATTERS
The legality of the Shares offered hereby has been passed upon for the
Company by Peter T. Noone, General Counsel of the Company. Mr. Noone owns 100
shares (less than 1%) of the outstanding Common Stock of the Company. Mr. Noone
is eligible to participate in the Incentive Plan but has not received any awards
to date thereunder.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Certificate of Incorporation of the Company provides that the
Company shall indemnify each officer and director of the Registrant to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law
(the "DGCL"). Section 145 of the DCGL provides that a Delaware corporation may
indemnify any person against expenses, judgments, fines and settlements actually
<PAGE>
-7-
and reasonably incurred by any such person in connection with a threatened,
pending or completed action, suit or proceeding in which he is involved by
reason of the fact that he is or was a director, officer, employee or agent of
such corporation, provided that (i) he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. The Certificate of
Incorporation and By-Laws of the Company also provides that, to the fullest
extent permitted by the DGCL, a director of the Company shall not be liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director to the Company or its stockholders. Such limitation does not
affect the liability of a director (i) for any transaction from which the
director derives an improper personal benefit, (ii) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(iii) for improper payment of dividends or redemption of shares or (iv) for any
breach of a director's duty of loyalty to the Company or its stockholders.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
<PAGE>
-8-
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
- ----------------------------------------------------------
The following documents previously filed by Hungarian Telephone and
Cable Corp. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") are hereby incorporated by reference in this Registration
Statement except as superseded or modified as described herein:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
(b) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(c) all other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since the end of the fiscal year covered by the Annual Report
referred to above;
(d) the Registrant's definitive Proxy Statement for its Annual Meeting of
Stockholders held on May 16, 1997; and
(e) the description of the common stock, par value $.001 per share, of the
Registrant contained in the Company's Re-Offer Prospectus (under the
caption "Description of Capital Stock") filed with this Registration
Statement and all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement and the
Prospectus.
<PAGE>
-9-
The Registrant shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to Peter
T. Noone, General Counsel, Hungarian Telephone and Cable Corp., 100 First
Stamford Place, Stamford, Connecticut 06902; telephone number (203) 348-9069.
All information appearing in this Registration Statement and the
Prospectus is qualified in its entirety by the detailed information, including
financial statements, appearing in the documents incorporated herein or therein
by reference.
Item 4. Description of Securities.
- -----------------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------------------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
- ---------------------------------------------------
The Certificate of Incorporation of the Registrant provides that the
Registrant shall indemnify each officer and director of the Registrant to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law
(the "DGCL"). Section 145 of the DCGL provides that a Delaware corporation may
indemnify any person against expenses, judgments, fines and settlements actually
and reasonably incurred by any such person in connection with a threatened,
pending or completed action, suit or proceeding in which he is involved by
reason of the fact that he is or was a director, officer, employee or agent of
such corporation, provided that (i) he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and (ii) with respect to any criminal action or proceeding, he had
no reasonable cause to believe his conduct was unlawful. The Certificate of
Incorporation and By-Laws of the Registrant also provides that, to the fullest
extent permitted by the DGCL, a director of the Registrant shall not be liable
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director to the Registrant or its stockholders. Such
limitation does not affect the liability of a director (i) for any transaction
from which the director derives an improve personal benefit, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for improper payment of dividends or redemption of
shares or (iv) for any breach of a director's duty of loyalty to the Registrant
or its stockholders.
Under a directors' and officers' liability insurance policy, directors
and officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act.
<PAGE>
-10-
Item 7. Exemption from Registration Claimed.
- ---------------------------------------------
5,000 of the Shares of Common Stock that hereby are being registered
for resale were issued to an officer of the Company pursuant to his employment
agreement. 716,497 of the shares of Common Stock that hereby are being
registered for resale may be issued pursuant to options previously granted to
certain current or former executive officers and directors of the Company. All
such securities issued as of the date hereof were issued pursuant to employee
benefits plans to a limited number of current or former directors or executive
officers of the Company in transactions not involving a public offering in
reliance on Section 4(2) of the Securities Act. Such persons, in their former
and current positions, have access to the types of information that could be
obtained through the registration process and, at the time of offering, the
Company believed that, based upon their educational background and position with
the Company, such individuals had the knowledge and experience in financial and
business matters of the Company to enable such individuals to evaluate the
merits and risks of the investment.
<PAGE>
-11-
Item 8. Exhibits
- -------------------
Regulation S-K Reference to Prior
Exhibit Filing or Exhibit
Number Document Number Attached Hereto
- ------------------------------------------------ ----------------------
4.1 Certificate of Incorporation 4.1
of the Registrant, as amended
4.2 Bylaws of the Registrant, as amended 4.2
4.3 1992 Incentive Stock Option Plan, as amended 4.3
4.4 Non-Employee Director Stock Option Plan *
4.5 Employment Agreement dated as of September
12, 1995, between the Registrant and
Robert Genova **
4.6 Employment Agreement dated September
12, 1995 between the Registrant and
Frank R. Cohen ***
4.7 Amended and Restated Employment
Agreement dated as of January 9, 1997
between the Registrant and Richard P. Halka ****
5 Opinion of Peter T. Noone,
General Counsel of the Registrant 5
23 Consent of Peter T. Noone, General Included in
Counsel of the Registrant Exhibit 5
23.1 Consent of KPMG Peat Marwick
LLP, certified public accountants 23.1
23.2 Consent of BDO Seidman, LLP,
certified public accountants 23.2
24 Power of Attorney Contained on
Signature Page
- --------------------------------------------------------------------------------
*Incorporated herein by reference to Exhibit 10.91 to the Registrant's Form
10-K for the year ended December 31, 1996.
**Incorporated herein by reference to Exhibit 10.56 to the Registrant's Form
10-K for the year ended December 31, 1995.
***Incorporated herein by reference to Exhibit 10.57 to the Registrant's Form
10-K for the year ended December 31, 1995.
****Incorporated herein by reference to Exhibit 10.92 to the Registrant's Form
10-K for the year ended December 31, 1996.
<PAGE>
-12-
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 of 1933, as
amended,
(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,
(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 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 of 1933, as amended, 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 of 1933, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a) or
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.
<PAGE>
-13-
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
<PAGE>
-14-
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Budapest, Republic of
Hungary, on June , 1997.
HUNGARIAN TELEPHONE AND CABLE CORP.
By: /s/ James G. Morrison
-------------------------------
James G. Morrison, President,
Chief Executive Officer and
Director
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James G. Morrison or Peter T. Noone, his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all said attorneys-in-fact and
agents or their substitutes or substitute may lawfully do or cause to be done by
virtue hereof.
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:
/s/James G. Morrison Director, President June 20, 1997
- ----------------------- and Chief Executive
James G. Morrison Officer
(continued)
<PAGE>
-15-
/s/Richard P. Halka Treasurer and Controller June 20, 1997
- -------------------------
Richard P. Halka
/s/Andrew E. Nicholson Senior Vice President, June 20, 1997
- ------------------------- Finance
Andrew E. Nicholson
/s/Peter T. Noone General Counsel June 20, 1997
- -------------------------
Peter T. Noone
/s/David A. Finley Director June 20, 1997
- -------------------------
David A. Finley
/s/John B. Ryan Director June 20, 1997
- -------------------------
John B. Ryan
/s/James H. Season Director June 20, 1997
- -------------------------
James H. Season
/s/Ronald E. Spears Director June 20, 1997
- -------------------------
Ronald E. Spears
/s/William E. Starkey Director June 20, 1997
- -------------------------
William E. Starkey
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
- ------------------------------------------------------------------------
4.1 Certificate of Incorporation of the Registrant, as amended
4.2 Bylaws of the Registrant, as amended
4.3 1992 Incentive Stock Option Plan, as amended
4.4 Non-Employee Director Stock Option Plan *
4.5 Employment Agreement dated as of September 12, 1995, between
the Registrant and Robert Genova **
4.6 Employment Agreement dated September 12, 1995 between the
Registrant and Frank R. Cohen ***
4.7 Amended and Restated Employment Agreement dated as of January 9,
1997 between the Registrant and Richard P. Halka ****
5 Opinion of Peter T. Noone, General Counsel of the Registrant
23 Consent of Peter T. Noone, General Counsel of the Registrant
(included in Exhibit 5)
23.1 Consent of KPMG Peat Marwick LLP, certified public
accountants
23.2 Consent of BDO Seidman, LLP, certified public accountants
24 Power of Attorney*****
- -------------------------
*Previously filed as Exhibit 10.91 with the Registrant's Form 10-K for the
year ended December 31, 1996.
**Previously filed as Exhibit 10.56 with the Registrant's Form 10-K for the
year ended December 31, 1995.
***Previously filed as Exhibit 10.57 with the Registrant's Form 10-K for the
year ended December 31, 1995.
****Previously filed as Exhibit 10.92 with the Registrant's Form 10-K for the
year ended December 31, 1996.
*****Contained on Signature Page
Exhibit 4.1
CERTIFICATE OF INCORPORATION
OF
HUNGARIAN TELEPHONE AND CABLE CORP.
(amended as of May 9, 1996)
The undersigned, a natural person, for the purpose of
organizing a corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of the
laws of the State of Delaware (particularly Chapter 1, Title 8 of the Delaware
Code and the acts amendatory thereof and supplemental thereto, and known,
identified, and referred to as the "General Corporation Law of the State of
Delaware"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is Hungarian Telephone and Cable Corp.
SECOND: The address, including street, number, city, and
county, of the registered office of the corporation in the State of Delaware is
15 East North Street, City of Dover, County of Kent; and the name of the
registered agent of the corporation in the State of Delaware at such address is
XL Corporate Services, Inc.
THIRD: The purpose of the corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock
which the corporation is authorized to issue is thirty million (30,000,000),
consisting of five million (5,000,000) shares of preferred stock, par value
one-tenth of one cent ($.001) per share (the "Preferred Stock"), and twenty-five
millions (25,000,000) shares of common stock, par value one-tenth of one cent
($.001) per share (the "Common Stock").
Each issued and outstanding share of Common Stock shall
entitle the holder of record thereof to one vote.
The Preferred Stock may be issued in one or more series as may
be determined from time to time by the Board of Directors. All shares of any one
series of Preferred Stock will be identical except as to the date of issue and
the dates from which dividends on shares of the series issued on different dates
will cumulate, if cumulative. Authority is hereby expressly granted to the Board
of Directors to authorize the issuance of one or more series of Preferred Stock,
and to fix by resolution or resolutions providing for the issue of each such
series the voting powers, the designation, preferences, and relative,
participating, optional, redemption, conversion, exchange or other special
rights, qualifications, limitations or restrictions of such series, and the
number of shares in each series, to the full extent now or hereafter permitted
by law.
<PAGE>
The redemption, purchase or acquiring by the Company of any
shares of its Preferred Stock, shall not be deemed to reduce the authorized
number of shares of Preferred Stock of the Company. Any shares of the Company's
Preferred Stock redeemed, retired, purchased or otherwise acquired (including
shares acquired by conversion) shall be cancelled and shall assume the status of
authorized but unissued Preferred Stock in the same manner as if the shares had
never been issued as shares of any series of Preferred Stock and be undesignated
as to future series.
FIFTH: The name and mailing address of the incorporator is
as follows:
NAME MAILING ADDRESS
Frank R. Cohen 445 Park Avenue
New York, New York 10022
SIXTH: The corporation is to have perpetual existence.
SEVENTH: Whenever a compromise or arrangement is proposed
between this corporation and its creditors or any class of them and/or between
this corporation and its stockholders or any class of them, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this corporation
under ss. 291 of Title 8 of the Delaware Code or on the application of trustees
in dissolution or of any receiver or receivers appointed for this corporation
under ss. 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of
this corporation, as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing three fourths in value of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this corporation, as the case may be, agree to any compromise or
arrangement and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the said
reorganization shall, if sanctioned by the court to which the said application
has been made, be binding on all the creditors or class of creditors, and/or on
all the stockholders or class of creditors, and/or corporation, as the case may
be, and also on this corporation.
EIGHTH: For the management of the business and for the conduct
of the affairs of the corporation, and in further definition, limitation, and
regulation of the powers of the corporation and of its directors and of its
stockholders or any class thereof, as the case may be, it is further provided:
-2-
<PAGE>
1. The management of the business and the conduct of the
affairs of the corporation shall be vested in its Board of Directors.
The number of directors which shall constitute the whole Board of
Directors shall be fixed by, or in the manner provided in, the Bylaws.
The phrase "whole Board" and the phrase "total number of directors"
shall be deemed to have the same meaning, to wit, the total number of
directors which the corporation would have if there were no vacancies.
No election of directors need be by written ballot.
2. After the original or other Bylaws of the corporation have
been adopted, amended, or repealed, as the case may be, in accordance
with the provisions of ss. 109 of the General Corporation Law of the
State of Delaware, and, after the corporation has received any payment
for any of its stock, the power to adopt, amend, or repeal the Bylaws
of the corporation may be exercised by the Board of Directors of the
corporation; provided, however, that any provision for the
classification of directors of the corporation for staggered terms
pursuant to the provisions of subsection (d) of ss. 141 of the General
Corporation Law of the State of Delaware shall be set forth in an
initial Bylaw or in a Bylaw adopted by the stockholders entitled to
vote of the corporation unless provisions for such classification shall
be set forth in this certificate of incorporation.
3. Whenever the corporation shall be authorized to issue only
one class of stock, each outstanding share shall entitle the holder
thereof to notice of, and the right to vote at, any meting of
stockholders. Whenever the corporation shall be authorized to issue
more than one class of stock, no outstanding share of any class of
stock which is denied voting power under the provisions of the
certificate of incorporation shall entitle the holder thereof to the
right to vote at any meeting of stockholders except as the provisions
of paragraph (2) of subsection (b) of ss. 242 of the General
Corporation Law of the State of Delaware shall otherwise require;
provided, that no share of any such class which is otherwise denied
voting power shall entitle the holder thereof to vote upon the increase
or decrease in the number of authorized shares of said class.
4. All meetings of stockholders shall be held in accordance
with ss. 211 and it shall not be permitted for an action of
stockholders to be taken by a consent of stockholders in lieu of
meeting as provided for in ss. 228.
NINTH: The personal liability of the directors of the
corporation is hereby eliminated to the fullest extent permitted by paragraph
(7) of subsection (b) of ss. 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
-3-
<PAGE>
TENTH: The corporation shall, to the fullest extent permitted
by ss. 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any Bylaw, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer,
employee, or agent and shall inure to the benefit of the heirs, executors, and
administrators of such a person.
ELEVENTH: From time to time any of the provisions of this
certificate of incorporation may be amended, altered, or repealed, and other
provisions authorized by the laws of the State of Delaware at the time in force
may be added or inserted in the manner and at the time conferred upon the
stockholders of the corporation by this certificate of incorporation are granted
subject to the provisions of this Article ELEVENTH.
Signed on March 20, 1992
/s/ Frank R. Cohen
Incorporator
-4-
Exhibit 4.2
BY LAWS
OF
HUNGARIAN TELEPHONE AND CABLE CORP.
(as amended as of May 16, 1997)
ARTICLE 1
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at the office of XL Corporate Services, Inc., 15 East
North Street, in the City of Dover, in the County of Kent, and in the State of
Delaware 19901, and said corporation shall be the registered agent of this
corporation in charge thereof.
SECTION 2. OTHER OFFICES. The corporation may have other
offices, either within or without the State of Delaware, at such place or places
as the Board of Directors may from time to time appoint or the business of the
corporation may require.
ARTICLE II
SHAREHOLDERS
1. Place of Meetings
Meetings of shareholders shall be held at the principal place
of the Corporation, or at such other places within or without the State of New
York as the Board shall authorize.
2. Annual Meetings
The annual meeting of the shareholders of the Corporation
shall be held at 2:00 p.m. on the last Tuesday of the fifth month in each year
after the close of the fiscal year of the Corporation, if such date is not a
legal holiday and if a legal holiday, then on the next business day following at
the same hour, at which time the shareholders shall elect a Board of Directors,
and transact such other business as may properly come before the meeting.
3. Special Meetings
Special meetings of the shareholders may be called at any time
by the Board or by the President, and shall be called by the President or the
Secretary at the Written request of the holders of ten percent (10%) of the
outstanding shares entitled to vote there at, or as otherwise required by law.
<PAGE>
4. Notice of Meetings
Written notice of each meeting of shareholders, whether annual
or special, stating the time when and place where it is to be held, shall be
served not less than ten nor more than fifty days before the meeting, upon each
shareholder of record entitled to vote at such meeting, and to any other
shareholder to whom the giving of notice may be required by law. Notice of a
special meeting shall also state the purpose or purposes for which the meeting
is called, and shall indicate that it is being issued by the person calling the
meeting. If, at any meeting action is proposed to be taken that would, if taken,
entitle shareholders to receive payment for their shares, the notice of such
meeting shall include a statement of the purpose and to that effect. If mailed,
such notice shall be directed to each such shareholder at his address, as it
appears on the records of the shareholders of the Corporation, unless he shall
have previously filed with the Secretary of the Corporation a written request
that notices intended for him be mailed to some other address, in which event,
it shall be mailed to the address designated in such request.
5. Waiver
Notice of any meeting need not be given to any shareholder who
submits a signed waiver of notice either before or after a meeting. The
attendance of any shareholder at a meeting, in person or by proxy, shall
constitute a waiver of notice by such shareholder.
6. Fixing Record Date
For the purpose of determining the shareholders entitled to
notice of or to vote at any meeting of shareholders or any adjournment thereof,
or to express consent to or dissent from any proposal without a meeting, or for
the purpose of determining shareholders entitled to receive payment of any
dividend or the allotment of any rights, or for the purpose of any other action,
the Board shall fix, in advance, a date as the record date for any such
determination of shareholders. Such date shall not be more than fifty nor less
than ten days before the date of such meeting, nor more than fifty days prior to
any other action. If no record date is fixed it shall be determined in
accordance with the provisions of law.
7. Quorum
(a) Except as otherwise provided by the Certificate of
Incorporation, at all meetings of the shareholders of the Corporation, the
presence at the commencement of such meetings, in person or by proxy, of
shareholders holding a majority of the total number of shares of the Corporation
then issued and outstanding on the records of the Corporation and entitled to
vote, shall be necessary and sufficient to constitute a quorum for the
transaction of any business. If a specified item of business is required to be
voted on by a class or classes, the holder of a majority of the shares of such
class or classes shall constitute a quorum for the transaction of such specified
item of business. The withdrawal of any shareholder after the commencement of a
meeting shall have no effect on the existence of a quorum, after a quorum has
been established at such meeting.
-2-
<PAGE>
(b) Despite the absence of a quorum at any annual or special
meeting of shareholders, the shareholders, by a majority of the votes cast by
the holders of shares entitled to vote thereon, may adjourn the meeting.
8. Voting
(a) Except as otherwise provided by statute or by the
Certificate of Incorporation,
(1) directors shall be elected by a plurality of the
votes cast;
(2) all other corporate action to be taken by vote
of the shareholders, shall be authorized by a majority of
votes cast;
at a meeting of shareholders by the holders of shares entitled to vote thereon.
(b) Except as otherwise provided by statute or by the
Certificate of Incorporation, at each meeting of shareholders, each holder of
record of shares of the Corporation entitled to vote, shall be entitled to one
vote for each share of stock registered in his name on the books of the
Corporation.
(c) Each shareholder entitled to vote or to express consent or
dissent without a meeting, may do so by proxy; provided, however, that the
instrument authorizing such proxy to act shall have been executed in writing by
the shareholder himself, or by his attorney-in-fact duly authorized in writing.
No proxy shall be valid after the expiration of eleven months from the date of
its execution, unless the proxy shall specify the length of time it is to
continue in force. The proxy shall be delivered to the Secretary at the meeting
and shall be filed with the records of the Corporation. Every proxy shall be
revocable at the pleasure of the shareholder executing it, except as otherwise
provided by law.
(d) Any action that may be taken by vote may be taken without
a meeting on written consent. Such action shall constitute action by such
shareholders with the same force and effect as if the same had been approved at
a duly called meeting of shareholders and evidence of such approval signed by
all of the shareholders shall be inserted in the Minute Book of the Corporation.
-3-
<PAGE>
ARTICLE III
BOARD OF DIRECTORS
1. Number
The number of the directors of the Corporation shall be not
less than three (3) nor more than nine (9) unless all of the outstanding shares
are owned of record by less than three shareholders, in which event, the number
of directors shall not be less than the number of shareholders.
2. Election
Except as may otherwise be provided herein or in the
Certificate of Incorporation, the members of the Board need not be shareholders
and shall be elected by a majority of the votes cast at a meeting of
shareholders, by the holders of shares entitled to vote in the election.
3. Term of Office
Each director shall hold office until the annual meeting of
the shareholders next succeeding his election, and until his successor is
elected and qualified, or until his prior death, resignation or removal.
4. Duties and Powers
The Board shall be responsible for the control and management
of the affairs, property and interests of the Corporation, except those powers
expressly conferred upon or reserved to the shareholders.
5. Annual
Regular annual meetings of the Board shall be held immediately
following the annual meeting of shareholders.
6. Regular Meetings and Notice
The Board may provide by resolution for the holding of regular
meetings of the Board of Directors, and may fix the time and place thereof.
Notice of regular meetings shall not be required to be given
and if given, need not specify the purpose of the meeting; provided, however,
that in the case that the Board shall fix or change the time or place of any
regular meeting, notice of such action be given to each director who shall not
have been present at the meeting at which such action was taken within the time
limited, and in the manner set forth at Section 7 of this Article III, unless
such notice shall be waived.
-4-
<PAGE>
7. Special Meetings and Notices
(a) Special meetings of the Board shall be held whenever
called by the President or by one of the directors, at such time and place as
may be specified in the respective notices or waivers of notice thereof.
(b) Notice of special meetings shall be mailed directly to
each director, addressed to him for such purpose or at his usual place of
business, at least two (2) business days before the day on which the meeting is
to be held, or delivered to him personally or given to him orally, not later
than the business day before the day on which the meeting is to be held.
(c) Notice of a special meeting shall not be required to be
given to any director who shall attend such meeting, or who submits a signed
waiver of notice.
8. Chairman
At all meetings of the Board, the Chairman, if present, shall
preside. If there is no Chairman, or he shall be absent, then the President
shall preside. In his absence, the Chairman shall be chosen by the Directors
present.
9. Quorum and Adjournment
(a) At all meetings of the Board, the presence of a majority
of the entire Board shall be necessary to constitute a quorum for the
transaction of business, except as otherwise provided by law, by the Certificate
of Incorporation or by these By-Laws. Participation of any one or more members
of the Board by means of a conference telephone or similar communications
equipment, allowing all persons participating in the meeting to hear each other
at the same time, shall constitute presence in person at such meeting.
(b) A majority of the directors present at any regular meeting
or special meeting, although less than a quorum, may adjourn the same from time
to time, without notice, until a quorum shall be present.
10. Manner of Acting
(a) At all meetings of the Board, each director present shall
have one vote.
(b) Except as otherwise provided by law, by the Certificate of
Incorporation, or by these By-Laws, the action of the directors present at any
meeting at which a quorum is present shall be the act of the Board. Any action
authorized, in writing, by all of the directors entitled to vote thereon and
filed with minutes of the Corporation shall be the act of the Board with the
same force and effect as if the same had been passed by unanimous vote at a duly
called meeting of the Board.
-5-
<PAGE>
11. Vacancies
Any vacancy in the Board of Directors resulting from an
increase in the number of directors, or the death, resignation,
disqualification, removal or inability to act of any director, shall be filled
for the unexpired portion of the term by a majority of the remaining directors,
though less than a quorum, at any regular meeting or special meeting of the
Board called for the purpose.
12. Resignation
Any director may resign at any time by giving written notice
to the Board, the President or the Secretary of the Corporation. Unless
otherwise specified in such written notice, such resignation shall take effect
upon the receipt thereof by the Board or such officer, and the acceptance of
such resignation shall not be necessary to make it effective.
13. Removal
Any director may be removed, with or without cause, at any
time by the shareholders, at a special meeting of the shareholders called for
that purpose and may be removed for cause by action of the Board.
14. Compensation
The directors shall be eligible to participate in the 1992
Incentive Stock Plan, as amended, and any other compensation plan that may be
adopted by the Company from time to time. In addition, the directors, by a
resolution of the Board, may receive a fixed sum and expenses for attendance at
each regular or special meeting of the Board. Nothing herein contained shall be
construed to preclude any director from serving the Corporation in any other
capacity and receiving compensation therefor.
15. Contracts
(a) No contract or other transaction between this Corporation
and any other business shall be affected or invalidated nor shall any director
be liable in any way by reason of the fact that a director of this Corporation
is interested in, or is a director, officer, or is financially interested in
such other business, provided such fact is disclosed to the Board.
-6-
<PAGE>
(b) Any director may be a party to or may be interested in any
contract or transaction of this Corporation individually and no director shall
be liable in any way by reason of such interest, provided that the fact of such
participation or interest be disclosed to the Board and provided that the Board
shall authorize or ratify such contract or transaction by the vote (not counting
the vote of any such director) of a majority of a quorum, notwithstanding the
presence of any such director at the meeting at which such action is taken. Such
director may be counted in determining the presence of a quorum at such meeting.
This Section shall not be construed to invalidate or in any way affect any
contract or other transaction which would otherwise be valid under the law
applicable thereto.
16. Committees
The Board, by resolution adopted by a majority of the entire
Board, may, from time to time, designate from among its members an executive
committee and such other committees and alternate members thereof as they may
deem desirable, each consisting of three or more members, with such powers and
authority (to the extent permitted by law) as may be provided in such
resolution. Each such committee shall remain in existence at the pleasure of the
Board. Participation of any one or more members of a committee by means of a
conference telephone or similar means of communication equipment allowing all
persons participating in the meeting to hear each other at the same time, shall
constitute a director's presence in person at any such meeting. Any action
authorized in writing by all of the members of a committee and filed with the
minutes of the committee shall be the act of the committee with the same force
and effect as if the same had been passed by unanimous vote at a duly called
meeting of the committee.
ARTICLE IV
OFFICES
1. Number and Qualifications
The officers of the corporation consist of a President, one or
more Vice Presidents, a Secretary, a Treasurer, and such other officers,
including a Chairman of the Board, as the Board of Directors, may from time to
time, deem advisable. Any officer other than the Chairman of the Board may be,
but is not required to be, a director of the Corporation. Any two or more
offices may be held by the same person, except the offices of President and
Secretary.
2. Election
The Officers of the Corporation shall be elected by the Board
at the regular annual meeting of the Board following the annual meeting of
shareholders.
-7-
<PAGE>
3. Term of Office
Each officer shall hold office until the annual meeting of the
Board next succeeding his election, and until his successor shall have been
elected and qualified, or until his death, resignation or removal.
4. Resignation
Any officer may resign at any time by giving written notice
thereof to the Board, the President or the Secretary of the Corporation. Such
resignation shall take effect upon receipt thereof by the Board or by such
officer, unless otherwise specified in such written notice. The acceptance of
such resignation shall not be necessary to make it effective.
5. Removal
Any officer, whether elected or appointed by the Board, may be
removed by the Board, either with or without cause, and a successor elected by
the Board at any time.
6. Vacancies
A vacancy in any office by reason of death, resignation,
inability to act, disqualification, or any other cause, may at any time be
filled for the unexpired portion of the term by the Board.
7. Duties
Unless otherwise specified by the Board, Officers of the
Corporation shall each have such powers and duties as generally pertain to their
respective offices, such powers and duties as may be set forth in these By-Laws,
and such powers and duties as may be specifically provided for by the Board. The
President shall be the chief executive officer of the Corporation.
8. Sureties & Bonds
At the request of the Board, any Officer, employee or agent of
the Corporation shall execute for the Corporation, a bond in sum, and with such
surety as the Board may direct, conditioned upon the faithful performance of his
duties to the Corporation, including, responsibility for negligence and for the
accounting for all property, funds or securities of the Corporation which may
come into his hands.
-8-
<PAGE>
9. Shares of Other Corporations
Whenever the Corporation is the holder of shares of any other
Corporation, any right or power of the Corporation as such shareholder shall be
exercised on behalf of the Corporation in such manner as the Board may
authorize.
ARTICLE V
SHARES OF STOCK
1. Certificates
(a) The certificates representing shares in the Corporation
shall be in such form as shall be approved by the Board and shall be numbered
and registered in the order issued. They shall bear the holder's name and the
number of shares, and shall be signed by (i) the Chairman of the Board or the
President or a Vice President, and (ii) the Secretary or Treasurer, or any
Assistant Secretary or Assistant Treasurer, and shall bear the corporate seal.
(b) Certificate representing shares shall not be issued until
they are fully paid for.
(c) The Board may authorize the issuance of certificates for
fractions of a share which shall entitle the holder to exercise voting rights,
receive dividends and participate in liquidating distributions, in proportion to
the fractional holdings.
2. Lost or Destroyed Certificates
Upon notification by the holder of any certificate
representing shares of the Corporation of the loss or destruction of one or more
certificates representing the same, the Corporation may issue new certificates
in place of any certificates previously issued by it, and alleged to have been
lost or destroyed. Upon production of evidence of loss or destruction, in such
form as the Board in its sole discretion may require, the Board may require the
owner of the lost or destroyed certificates to provide the Corporation with a
bond in which sum as the Board may direct, and with such surety as may be
satisfactory to the Board, to indemnify the Corporation against any claims,
loss, liability or damage it may suffer on account of the issuance of the new
certificate. A new certificate may be issued without requiring any such evidence
or bond when, in judgment of the Board, it is proper to do so.
3. Transfer of Shares
(a) Transfers of shares of the Corporation may be made on the
share records of the Corporation solely by the holder of such records, in person
or by a duly authorized attorney, upon surrender for cancellation of the
certificates representing such shares, with an assignment or power of transfer
endorsed thereon or delivered therewith, duly executed and with such proof of
the authenticity of the signature, and the authority to transfer and the payment
of transfer taxes as the Corporation or its agents may require.
-9-
<PAGE>
(b) The Corporation shall be entitled to treat the holder of
record of any shares as the absolute owner thereof for all purposes and shall
not be bound to recognize any legal equitable or other claim to, or interest in
such shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise expressly provided by law.
4. Record Date
In lieu of closing the share records of the Corporation, the
Board may fix, in advance, a date not less than ten days and not more than fifty
days, as the record date for the determination of shareholders entitled to
receive notice of, and to vote at, any meeting of shareholders entitled to
receive payment of any dividends, or allotment of any rights, or for the purpose
of any other action. If no record date is fixed, the record date for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders shall be at the close of business of the day immediately preceding
the day on which notice is given, or, if no notice is given, the day on which
the meeting is held; the record date for determining shareholders for any other
purpose shall be at the close of business on the day on which the resolution of
the directors relating thereto is adopted. When a determination of shareholders
of record entitled to notice of or to vote at any meeting of shareholders has
been made as provided for herein, such determination shall apply to any
adjournment thereof, unless the directors fix a new record date for the
adjourned meeting.
ARTICLE VI
DIVIDENDS
Subject to this Certificate of Incorporation, and to
applicable law, dividends may be declared and paid out of any funds available
therefore, as often, in such amount, and at such time or times as the Board may
determine. Before payment of any dividend, there may be set aside out of the net
profits of the Corporation available for dividends, such sum or sums as the
Board, from time to time, in its sole discretion, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the
Board shall think conducive to the interests of the Corporation, and the Board
may modify or abolish any such reserve.
ARTICLE VII
FISCAL YEAR
The fiscal year of the Corporation shall be fixed by the Board
from time to time, subject to applicable law.
-10-
<PAGE>
ARTICLE VIII
CORPORATE SEAL
The corporate seal, if any, shall be in such form as shall be
approved from time to time by the Board.
ARTICLE IX
AMENDMENTS
1. By Shareholders
All By-Laws of the Corporation shall be subject to revision,
amendment or repeal, and new By-Laws may be adopted from time to time, by a
majority vote of the shareholders who are at such time entitled to vote in the
election of directors.
2. By Directors
The Board shall have power to make, adopt, alter, amend and
repeal, from time to time, By-Laws of the Corporation, provided, however, that
the shareholders entitled to vote with respect thereto as provided for by
Section 1 of this Article IX may alter amend or repeal the By-Laws as made by
the Board. The Board shall have no power to change the quorum for meetings with
respect to the removal of directors or the filling of vacancies in the Board
resulting from the removal of one or more directors by the shareholders. If any
By-Law regulating an impending election of directors is adopted, amended or
repealed by the Board, there shall be set forth in this notice of the next
annual meeting of shareholders for the election of directors, the By-Law so
adopted, amended or repealed, together with a concise statement of the change
made.
ARTICLE X
INDEMNIFICAITON OF OFFICERS & DIRECTORS
The Corporation shall indemnify any and all of its Directors
or Officers or former Directors or Officers or any person who may have served at
its request as a Director or Officer of another Corporation in which it owns
shares of capital stock or of which it is a creditor against expenses actually
and necessarily incurred by them in connection with the defense of any action,
suit or proceeding in which they, or any of them, are made parties, or a party,
by reason of being or having been Directors or a Director of Officer of the
Corporation, or such other corporation, except, in relation to matters as to
which any such Director or Officer or former Director or Officer or person shall
be adjudged in such action, suit or proceeding to be liable for negligence or
misconduct, in the performance of duty.
-11-
Exhibit 4.3
HUNGARIAN TELEPHONE AND CABLE CORP.
1992 INCENTIVE STOCK OPTION PLAN, AS AMENDED
1. Purpose. The purpose of the 1992 Incentive Stock Option Plan of
Hungarian Telephone and Cable Corp. (the "Corporation") is to provide incentive
to employees of the Corporation, to encourage employee proprietary interest in
the Corporation, to encourage employees to remain in the employ of the
Corporation, and to attract to the Corporation individuals of experience and
ability to serve as employees, directors and consultants.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the
Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986 as
amended from time to time.
(c) "Common Stock" shall mean the $.001 par value Common stock
of the Corporation.
(d) "Committee" shall mean the Committee appointed by the
Board in accordance with Section 4 of the Plan.
(e) "Corporation" shall mean Hungarian Telephone and Cable
Corp., a Delaware corporation, its parent or any of its subsidiaries.
(f) "Disability" shall mean the condition of an Employee who
is unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve (12) months.
(g) "Employee" shall mean an individual (who may be an officer
or a director) employed by the Corporation (within the meaning of the
Code section 3401 and the regulations thereunder).
(h) "Exercise Price" shall mean the price per Share of Common
Stock, determined by the Committee, at which an Option may be
exercised.
(i) "Fair Market Value" of a Share as of a specified date
shall mean the closing price of a Share on the principal securities
exchange on which such Shares are traded on the day immediately
preceding the date as of which Fair Market Value is being determined,
or on the next preceding date on which such Shares are traded if no
Shares were traded on such immediately preceding day, or if the Shares
are not traded on a securities exchange, Fair Market Value shall be
deemed to be the average of the high bid and low asked prices of the
<PAGE>
Shares in the over-the-counter market on the day immediately preceding
the date as of which Fair Market Value is being determined or on the
next preceding date on which such high bid and low asked prices were
recorded. If the Shares are not publicly traded, Fair Market Value
shall be determined by the Committee or the Board. In no case shall
Fair Market Value be less than the par value of a share of Common
Stock.
(j) "Incentive Stock Option" shall mean an Option described in
Code section 422(b).
(k) "Nonstatutory Stock Option" shall mean an Option not
described in Code sections 422(b) or 423(b).
(l) "Option" shall mean a stock option granted pursuant to the
Plan.
(m) "Purchase Price" shall mean the Exercise Price times the
number of whole Shares with respect to which an Option is exercised.
(n) "Optionee" shall mean an Employee to whom an option has
been granted.
(o) "Plan" shall mean this Hungarian Telephone and Cable Corp.
1992 Incentive Stock Option Plan.
(p) "Share" shall mean one Share of Common Stock, adjusted in
accordance with Section 10 of the Plan (if applicable).
(q) "Subsidiary" shall mean those subsidiaries of the
Corporation as defined in section 424(f) of the code.
3. Effective Date. This Plan was approved by the Board and
Shareholders effective April 30, 1992.
4. Administration. The Plan shall be administered by the Board of
Directors or by the Stock Option Committee (the "Committee") appointed by the
Board, consisting of not less than two members thereof. The Board may from time
to time remove members from, or add members to, the Committee. Vacancies on the
Committee, however caused, shall be filled by the Board.
The Committee shall hold meetings at such times and places as it
may determine. Acts of a majority of the Committee at which a quorum is present,
or acts reduced to or approved in writing by a majority of the members of the
Committee, shall be the valid acts of the Committee. The Committee shall from
time to time at its discretion make determinations with respect to Employees who
shall be granted Options, the number of Shares to be optioned to each and the
designation of such Options as Incentive Stock Options or Nonstatutory Stock
Options.
-2-
<PAGE>
The interpretation and construction by the Committee of any
provisions of the Plan or of any Option granted thereunder shall be final. No
member of the Committee shall be liable for any action or determination made in
good faith with respect to the Plan or any Option granted thereunder.
5. Eligibility. Optionees shall be such key Employees (who may be
officers, whether or not they are directors), or directors or consultants of the
Corporation who perform services of special importance to the management,
operation and development of the business of the Corporation as the Committee
shall select, but subject to the terms and conditions set forth below.
(a) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonqualified Stock
Option. However, notwithstanding such designations, to the extent that
the aggregate fair market value of the Shares with respect to which
Options designated as Incentive Stock Options are exercisable for the
first time by any Optionee during any calendar year (under all plans of
the Company) exceeds $100,000, such Options shall be treated as
Nonqualified Stock Options.
(b) For purposes of Section 5(a), Options shall be taken into
account in the order in which they were granted, and the fair market
value of the Shares shall be determined as of the time the Option with
respect to such Shares is granted.
(c) Nothing in the Plan or any Option granted hereunder shall
confer upon any Optionee any right with respect to continuation of
employment with the Company, nor shall it interfere in any way with the
Optionee's right or the Company's right to terminate the employment
relationship at any time, with or without cause.
6. Stock. The stock subject to Options granted under the Plan shall be
Shares of the Corporation's authorized but unissued or reacquired Common Stock.
The aggregate number of Shares which may be issued under Options exercised under
this Plan shall not exceed 750,000. The number of Shares subject to Options
outstanding under the Plan at any time may not exceed the number of Shares
remaining available for issuance under the Plan. In the event that any Option
outstanding under the Plan expires for any reason or is terminated, the Shares
allocable to the unexercised portion of such Option may again be subjected to an
Option under the Plan.
-3-
<PAGE>
The limitations established by this Section 6 shall be subject to
adjustment upon the occurrence of the events specified and in the manner
provided in Section 10 hereof.
7. Terms and Conditions of Options. Options granted pursuant to the
Plan shall be evidenced by written agreements in such form as the Committee
shall from time to time determine, which agreements shall comply with and be
subject to the following terms and conditions:
(a) Date of Grant. Each option shall specify its effective
date (the "date of grant"), which shall be the date specified by the
Board or the Committee, as the case may be, in its action relating to
the grant of the Option.
(b) Optionee's Agreement. Each Optionee shall agree to remain
in the employ of and to render to the Corporation his or her services
for a period of one (1) year from the date of the granting of the
Option, but such agreement shall not impose upon the Corporation any
obligation to retain the Optionee in their employ for any period.
(c) Number of Shares. Each Option shall state the number of
Shares to which it pertains and shall provide for the adjustment
thereof in accordance with the provisions of Section 10 hereof.
(d) Exercise Price and Consideration.
(i) The per Share exercise price under each Option
shall be such price as is determined by the Board, subject to
the following:
a) In the case of an Incentive Stock Option
i) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock
representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than
110% of the fair market value per share on the date of grant.
ii) granted to any other Employee, the per
Share exercise price shall be no less than 100% of the fair
market value per Share on the date of grant.
b) In the case of a Nonqualified Stock Option the per
Share exercise price may be less than, equal to, or greater than the
fair market value per Share on the date of grant.
-4-
<PAGE>
i) The fair market value per Share shall be
the closing price per share of the Common Stock on the
National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System on the date of grant. If the
Common Stock ceases to be listed on the NASDAQ National Market
System, the Board shall designate an alternative method of
determining the fair market value of the Common Stock.
(e) Medium and Time Payment. The Purchase Price shall be
payable in full in United States dollars upon the exercise of the
Option; provided, however, that, with the consent of the Committee, the
Purchase Price may be paid by the surrender of Shares in good form for
transfer, owned by the person exercising the option and having a Fair
Market Value on the date of exercise equal to the Purchase Price or in
any combination of cash and Shares, so long as the total of the cash so
paid and the Fair Market Value of the Shares surrendered equals the
Purchase Price. No Share shall be issued until full payment therefore
has been made.
(f) Term and Exercise of Options; Nontransferability of
Options. Each Option shall state the time or times when it becomes
exercisable. No option shall be exercisable after the expiration of ten
(10) years from the date it is granted. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee and
shall not be assignable or transferable. In the event of the Optionee's
death, no Option shall be transferable by the Optionee otherwise than
by will or the laws of descent and distribution.
(g) Termination of Employment Except Death. In the event that
an Optionee shall cease to be employed by the Corporation for any
reason other than his or her death, such Optionee shall have the right,
subject to the restrictions of Subsection (f) hereof, to exercise the
Option at any time within three (3) months after such termination of
employment (twelve (12) months if termination was due to Disability or,
in the case of Nonstatutory Stock Option, twelve (12) months if
termination was due to retirement), to the extent that, on the day
preceding the date of termination of employment, the Optionee's right
to exercise such Option had accrued pursuant to the terms of the option
agreement pursuant to which such Option was granted, and had not
previously been exercised.
For this purpose, the employment relationship will be treated
as continuing intact while the Optionee is on military leave, sick
leave or other bona fide leave of absence (to be determined in the sole
discretion of the Committee, in accordance with rules and regulations
construing Code section 422(a)(2)). Notwithstanding the foregoing, in
the case of an Incentive Stock Option, employment shall not be deemed
to continue beyond the ninetieth (90th) day after the Optionee ceased
active employment, unless the Optionee's reemployment rights are
guaranteed by statute or by contract.
-5-
<PAGE>
(h) Death if Optionee. If the Optionee shall die while in the
employ of the Corporation and shall not have fully exercised the
Option, an Option may be exercised in full, subject to the restrictions
of Subsection (f) hereof, to the extent it had not previously been
exercised, at any time within twelve (12) months after the Optionee's
death, by the executors or administrators of his or her estate or by
any person or persons who shall have acquired the Option directly from
the Optionee by bequest or inheritance.
If the Optionee shall die within three (3) months after his or
her employment with the Corporation terminated and shall not have fully
exercised the Option, an Option may be exercised (subject to the
limitations on exercisability set forth in Subsection (f) hereof) to
the extent that, at the date of termination of employment, the
Optionee's right to exercise such Option had accrued pursuant to the
terms of the applicable option agreement and had not previously been
exercised, at any time within twelve (12) months after the Optionee's
death, by the executors or administrators of the Optionee's estate or
by any person or persons who shall have acquired the Option directly
from the Optionee by bequest or inheritance.
(i) Rights as a Stockholder. An Optionee or a transferee of an
Optionee shall have no rights as a stockholder with respect to any
Shares covered by his or her Option until the date of the issuance of a
stock certificate for such shares. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or
other property) or distributions or other rights for which the record
date is prior to the date such stock certificate is issued, except as
provided in Section 10.
(j) Modification, Extension and Renewal of Options. Subject to
the terms and conditions and within the limitations of the Plan, the
Committee may modify, extend or renew outstanding Options granted under
the Plan, or accept the exchange of outstanding Options (to the extent
not theretofore exercised and subject to the provisions of paragraph
7(d) above) for the granting of new Options in substitution therefor.
Notwithstanding the foregoing, however, no modification of an Option
shall, without the consent of the optionee, alter or impair any rights
or obligations under any Option theretofore granted under the Plan.
(k) Other Provisions. The option agreements authorized under
the Plan shall contain such other provisions not inconsistent with the
terms of the Plan, including, without limitation, restrictions upon the
exercise of the Option, as the Committee shall deem advisable.
-6-
<PAGE>
8. Limitation on Annual Awards.
General Rule. Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonqualified Stock Option.
However, notwithstanding such designations, to the extent that the aggregate
fair market value of the Shares with respect to which Options designated as
Incentive Stock Options are exercisable for the first time by any Optionee
during any calendar year (under all plans of the Company) exceeds $100,000, such
Options shall be treated as Nonqualified Stock Options.
9. Term of Plan. Options may be granted pursuant to the Plan until
the termination of the Plan on April 30, 2002.
10. Recapitalization. Subject to any required action by the
stockholders, the number of Shares covered by this Plan as provided in Section
6, the number of Shares covered by each outstanding Option, and the Exercise
Price thereof shall be proportionately adjusted for any increase or decrease in
the number of issued Shares resulting from a subdivision or consolidation of
Shares, stock split, or the payment of a stock dividend.
Subject to any required action by the stockholders, if the
Corporation shall be the surviving corporation in any merger or consolidation,
each outstanding Option shall pertain and apply to the securities to which a
holder of the number of Shares subject to the Option would have been entitled. A
dissolution or liquidation of the Corporation or a merger or consolidation in
which the Corporation is not the surviving corporation shall cause each
outstanding Option to terminate, unless the agreement of merger or consolidation
shall otherwise provide, provided that each Optionee shall in such event, if a
period of one (1) year from the date of the grant of the Option shall have
elapsed, have the right immediately prior to such dissolution or liquidation, or
merger or consolidation in which the Corporation is not the surviving
corporation, to exercise the Option in whole or in part, subject to limitations
on exercisability under Section 7(k) hereof.
In the event of a change in the Common Stock as presently
constituted, which is limited to a change of all of its authorized shares with
par value into the same number of shares with a different par value or without
par value, the shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
To the extent that the foregoing adjustments related to stock or
securities of the Corporation, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive.
Except as hereinbefore expressly provided in this Section 10, the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class, stock split, or the payment of any stock dividend
or any other increase or decrease in the number of shares of stock of any class
or by reason of any dissolution, liquidation, merger, or consolidation or
spin-off of assets or stock of another corporation, and any issue by the
Corporation of shares of stock of any class or securities convertible into
shares of stock of any class, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of Shares subject to
the Option.
-7-
<PAGE>
The grant of an Option pursuant to the Plan shall not affect in any
way the right or power of the Corporation to make adjustments,
reclassifications, reorganizations or changes of its capital or business
structure or to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Securities Law Requirements. No Shares shall be issued upon the
exercise of any Option unless and until the Corporation has determined that: (i)
it and the Optionee have taken all actions required to register the Shares under
the Securities Act of 1933 or perfect an exemption from the registration
requirements thereof; (ii) any applicable listing requirement of any stock
exchange on which the Common Stock is listed has been satisfied; and (iii) any
other applicable provision of state or Federal Law has been satisfied.
12. Amendment of the Plan. The Board may, insofar as permitted by law,
from time to time, with respect to any Shares at the time not subject to
Options, suspend or discontinue the Plan or revise or amend it in any respect
whatsoever except that, without approval of the stockholders, no such revision
or amendment shall:
(a) Increase the number of Shares issuable pursuant to the
Plan; or
(b) Change the requirements as to eligibility for
participation in the Plan.
(c) Materially increase benefits accruing to participants
under the Plan.
13. Application of Funds. The proceeds received by the Corporation
from the sale of Common Stock pursuant to the exercise of an Option will be used
for general corporate purposes.
14. No Obligation to Exercise Option. The granting of an Option shall
impose no obligation upon the Optionee to exercise such Option.
-8-
EXHIBIT 5
June 20, 1997
Board of Directors
Hungarian Telephone and
Cable Corp.
100 First Stamford Place
Stamford, Connecticut 06902
Gentlemen:
I am the General Counsel of Hungarian Telephone and Cable Corp. (the
"Company") and have been involved in the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 under
the Securities Act of 1933, as amended, (the "Registration Statement") relating
to 1,146,497 shares of the Company's Common Stock, par value $.001 per share
(the "Common Stock"), offered pursuant to the Company's 1992 Incentive Stock
Option Plan, as amended (the "Incentive Plan"), Non-Employee Director Stock
Option Plan (the "Director Plan") and certain employment agreements between the
Company and Frank R. Cohen and Robert Genova dated as of September 12, 1995, and
Richard P. Halka dated as of January 9, 1997 (the "Employment Agreements").
In this connection, I have reviewed originals or copies, certified or
otherwise identified to my satisfaction, of the Company's Certificate of
Incorporation, Bylaws, resolutions of its Board of Directors and such other
documents and corporate records as I deemed appropriate for the purpose of
giving this opinion.
Based upon the foregoing, it is my opinion that:
1. 5,000 of the shares of Common Stock being so registered have been
duly authorized and are validly issued, fully paid and non-assessable.
2. 1,141,497 of the shares of Common Stock that may be issued by the
Company pursuant to the Incentive Plan, Director Plan or the Employment
Agreements are duly reserved and will be, when issued and sold in the
manner contemplated by the Registration Statement, Incentive Plan,
Director Plan and Employment Agreements, validly issued, fully paid and
non-assessable shares of Common Stock of the Company.
I hereby consent to the filing of this Opinion with the Securities and
Exchange Commission as an Exhibit to the Registration Statement and to the
reference to me under the heading "Legal Matters" in the Registration Statement.
Very truly yours,
/s/PETER T. NOONE
-----------------------------------
PETER T. NOONE
General Counsel
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors of Stockholders
Hungarian Telephone and Cable Corp.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Hungarian Telephone and Cable Corp. of our report dated March 21, 1997,
relating to the consolidated balance sheets of Hungarian Telephone and Cable
Corp. and subsidiaries as of December 31, 1996 and 1995 and the related
consolidated statements of operations, stockholders' (deficit) equity and cash
flows for each of the years then ended, which appears in the December 31, 1996
annual report on Form 10-K of Hungarian Telephone and Cable Corp.
KPMG Peat Marwick LLP
New York, New York
June 23, 1997
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Board of Directors and Stockholders
Hungarian Telephone and Cable Corp.
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Hungarian Telephone and Cable Corp. of our report dated
March 27, 1995, relating to the consolidated financial statements of Hungarian
Telephone and Cable Corp. and subsidiaries for the year ended December 31, 1994
appearing in its Annual Report on Form 10-K for the year ended December 31,
1996.
BDO Seidman, LLP
New York, New York
June 23, 1997
