Registration No. 33-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
USCI, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3702647
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
6115-A Jimmy Carter Boulevard, Norcross, Georgia 30071
(Address of principal executive offices) (Zip Code)
USCI, Inc. Amended and Restated 1992 Stock Option Plan
(Full title of Plan)
Bruce A. Hahn, Chief Executive Officer
USCI, Inc.
6115-A Jimmy Carter Boulevard
Norcross, Georgia 30071
(Name and address of agent for service)
(770) 840-8888
(Telephone number, including area code, of agent for service)
With a copy to:
Leonard R. Glass, Esq.
Cole, Schotz, Meisel, Forman & Leonard, P.A.
25 Main Street
Hackensack, New Jersey 07602
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C A L C U L A T I O N O F R E G I S T R A T I O N F E E
============================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered (1) Registered Per Security (2) Offering Price(2) Fee
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 613,185 shares $6.01 $3,686,831 $1,272.00
$.0001 par value
Common Stock, 136,815 shares $4.75 $ 649,872 $ 224.00
$.0001 par value
Total 750,000 shares $4,336,703 $1,496.00
============================================================================================
<FN>
(1) This Registration Statement also covers any additional shares that may
hereafter become issuable as a result of the operation of the anti-dilution
provision of the USCI, Inc. Amended and Restated 1992 Stock Option Plan.
(2) Determined in accordance with Rule 457(h), the registration fee is based on
the option exercise price per share for those shares presently subject to options
and, for shares not presently subject to options, on the average of the high and
low prices reported on the Nasdaq National Market on November 12, 1996.
</FN>
/TABLE
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents as filed with the Securities and
Exchange Commission (the "Commission") by USCI, Inc. (the
"Company") are hereby incorporated by reference in this
Registration Statement.
a. Annual Report of the Company on Form 10-K for the
fiscal year ended December 31, 1995.
b.1 Quarterly Report of the Company on Form 10-Q for the
quarter ended March 31, 1996.
b.2 Quarterly Report of the Company on Form 10-Q for the
quarter ended June 30, 1996.
b.3 Quarterly Report of the Company on Form 10-Q for the
quarter ended September 30, 1996.
b.4 Current Reports of the Company on Form 8-K dated
May 19, 1995, (as amended January 22, 1996); January 5,
1996; and July 8, 1996.
c. The description of the Company's Common Stock, $.0001
par value per share, as set forth in the Company's
Registration Statement on Form S-1 on Form S-3. [Reg.
No. 33-88828] as filed with the Commission and declared
effective on May 15, 1995.
All documents filed by the Company pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 subsequent to the filing of this Registration Statement
and prior to the filing of a post-effective amendment hereto that
indicates that all securities offered have been sold or that
deregisters all such securities then remaining unsold, shall be
deemed to be incorporated herein by reference in this
Registration Statement and to be a part hereof from the date of
filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interest of Named Experts and Counsel.
The validity of the shares of Common Stock being registered
hereunder has been passed upon for the Company by Cole, Schotz,
Meisel, Forman & Leonard, P.A. Attorneys in such law firm
beneficially own less than three (3) per cent of the outstanding
shares of the Company's Common Stock.
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Item 6. Indemnification of Directors and Officers.
Article Seventh of the Company's Certificate of
Incorporation provides with respect to the indemnification of
directors and officers that the Company shall indemnify to the
fullest extent permitted by Sections 102(b)(7) and 145 of the
Delaware General Corporation Law, as amended from time to time,
each person that such Sections grant the Company the power to
indemnify. Article Seventh of the Certificate of Incorporation
of the Company also provides that no director shall be liable to
the Company or any of its stockholders for monetary damages for
breach of fiduciary duty as a director, except with respect to
(1) a breach of the director's duty of loyalty to the Company or
its stockholders, (2) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (3) liability under Section 174 of the Delaware General
Corporation Law or (4) a transaction from which the director
derived an improper personal benefit, it being the intention of
the foregoing provision to eliminate the liability of the
Company's directors to the Company or its stockholders to the
fullest extent permitted by Section 102(b)(7) of Delaware General
Corporation Law, as amended from time to time.
Article XIII of the bylaws of the Company provides for the
indemnification of directors, officers, employees, and agents of
the Company, as well as others serving at the Company's request
in such capacity for another entity, in certain specific
instances in accordance with the Delaware General Corporation
Law. In an action brought by or in the right of the Company, the
individual is entitled to indemnification of expenses of defense
or settlement if he acted in good faith, and in a manner
reasonably believed to be in or not opposed to the best interests
of the Company, except that no indemnification may be afforded in
instances where the individual has been adjudged liable to the
Company, unless the court hearing such action determines that
despite the adjudication of liability the individual is fairly
and reasonably entitled to indemnity. In all other actions, the
individual is entitled to indemnification of expenses, judgments,
fines, and amounts paid in settlement if the individual acted in
good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company and, in criminal
proceedings, if he had no reasonable cause to believe his conduct
was unlawful. The indemnification for any such action (other
than as ordered by a court) may be made by the Company only upon
a determination that indemnification is proper in the
circumstances because the individual met the applicable standard
of conduct. Such determination must be made by a majority vote
of disinterested directors or, in certain specific instances, by
independent legal counsel or by the stockholders.
II-2
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The bylaws of the Company provide that the Company may
purchase and maintain insurance on behalf of directors, officers,
employees, and agents, as well as others serving at the Company's
request in such capacity for another entity, against any
liabilities asserted against such persons whether or not the
Company would have the power to indemnify such directors,
officers, employees, or agents against such liability under the
Delaware General Corporation Law. The Company has purchased and
maintains such insurance pursuant to such authorization for the
officers and the directors of the Company.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 USCI, Inc. Amended and Restated 1992 Stock Option Plan.
5. Opinion of Cole, Schotz, Meisel, Forman & Leonard,
P.A., as to the legality of the shares being
registered.
23.1 Consent of Cole, Schotz, Meisel, Forman & Leonard, P.A.
(included in Exhibit 5 to this Registration Statement).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (contained on page II-6 hereof).
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.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
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(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
registration statement or any material change in such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
above do not apply if the registration statement is on Form S-3
or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned issuer hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
and 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers,
and controlling persons of the registrant pursuant to the
provisions described in Item 6 of this Part II, 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, therefor, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant, USCI, Inc., certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Norcross, State of
Georgia, on the 18th day of November, 1996.
USCI, Inc.
Registrant
By: /s/ Bruce A. Hahn
---------------------------
Bruce A. Hahn, Chairman of
the Board, President and
Chief Executive Officer
II-5<PAGE>
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POWER OF ATTORNEY
Know All Men By These Presents, that each person whose
signature appears below constitutes and appoints Bruce A. Hahn
and Robert J. Kostrinsky, or either of them, his true and lawful
attorneys-in-fact and agents, 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 other documents in
connection therewith, with the Securities and Exchange Commission
granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or
could do in person,hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue thereof. This Power of Attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ Bruce A. Hahn Chairman of the Board, November 18, 1996
- ------------------------- President and Chief
Bruce A. Hahn Executive Officer, Director
/s/ Robert J. Kostrinsky Chief Financial Officer November 18, 1996
- ------------------------- and Principal
Robert J. Kostrinsky Accounting Officer
/s/ Edgar Puthuff
- ------------------------- Director November 18, 1996
Edgar Puthuff
/s/ Jerome S. Baron
- ------------------------- Director November 18, 1996
Jerome S. Baron
/s/ Lawrence Burstein
- ------------------------- Director November 18, 1996
Lawrence Burstein
/s/ Salvatore T. DiMascio
- -------------------------- Director November 18, 1996
Salvatore T. DiMascio
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
4.1 USCI, Inc. Amended and Restated 1992 Stock Option Plan.
5. Opinion of Cole, Schotz, Meisel, Forman & Leonard, P.A. as to
the legality of the shares being registered.
23.1 Consent of Cole, Schotz, Meisel, Forman & Leonard, P.A.
(included in Exhibit 5 to this Registration Statement).
23.2 Consent of Arthur Andersen
24.1 Power of Attorney (contained on page II-6 hereof).
II-7
USCI, INC.
formerly TRINITY SIX INC.
AMENDED AND RESTATED 1992 STOCK OPTION PLAN
Trinity Six Inc. (the "Company") hereby amends and restates
the Trinity Six Inc. 1992 Stock Option Plan in its entirety (the
Company's 1992 Stock Option Plan, as amended and restated, is
hereinafter referred to as the "Plan").
1. Purpose. The Plan is intended to amend and restate in
its entirety the Company's 1992 Stock Option Plan. The Plan is
intended to recognize the contributions made to the Company or an
Affiliate by employees of the Company or any Affiliate (as
hereinafter defined), members of the Board of Directors of the
Company or an Affiliate, and certain consultants and advisors to
the Company or any Affiliate, to provide such persons with
additional incentive to devote themselves to the future success of
the Company or an Affiliate, and to improve the ability of the
Company or an Affiliate to attract, retain, and motivate
individuals upon whom the Company's sustained growth and financial
success depend, by providing such persons with an opportunity to
acquire or increase their proprietary interest in the Company
through receipt of rights to acquire the Company's Common Stock,
$.0001 par value (the "Common Stock").
2. Definitions. Unless the context clearly indicates
otherwise, the following terms shall have the following meanings:
(a) "Affiliate" means a corporation which is a parent
corporation or a subsidiary corporation with respect to the Company
within the meaning of Section 424(e) or (f) of the Code.
(b) "Board of Directors" means the Board of Directors of
the Company.
(c) "Change of Control" shall have the meaning as set
forth in Section 9 of the Plan.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the Board of Directors or the
committee designated by the Board of Directors in accordance with
the provisions set forth in Section 3 of the Plan.
(f) "Company" means Trinity Six Inc., a Delaware
corporation.
(g) "Disability" shall have the meaning set forth in
Section 22(e)(3) of the Code.
(h) "Fair Market Value" shall have the meaning set forth
in Subsection 8(b) of the Plan.
(i) "ISO" means an Option granted under the Plan which
is intended to qualify as an "incentive stock option" within the
meaning of Section 422(b) of the Code.<PAGE>
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(j) "Merger" means the merger contemplated by that
certain Agreement and Plan of Merger and Reorganization, dated as
of December 14, 1994, by and among the Company and U.S.
Communications, Inc.
(k) "Non-qualified Stock Option" means an Option granted
under the Plan which is not intended to qualify, or otherwise does
not qualify, as an "incentive stock option" within the meaning of
Section 422(b) of the Code.
(l) "Option" means either an ISO or a Non-qualified
Stock Option granted under the Plan.
(m) "Optionee" means a person to whom an Option has been
granted under the Plan, which Option has not been exercised and has
not expired or terminated.
(n) "Option Document" means the document described in
Section 8 of the Plan which sets forth the terms and conditions of
each grant of Options.
(o) "Option Price" means the price at which Shares may
be purchased upon exercise of an Option, as calculated pursuant to
Subsection 8(b) of the Plan.
(p) "Rule 16b-3" means Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended.
(q) "Shares" means the shares of Common Stock of the
Company which are the subject of Options.
3. Administration of the Plan.
(a) Committee. The Plan shall be administered by a
committee composed of two or more of the members of the Company's
Board of Directors who are not eligible to receive Options under
the Plan; however, the Board may designate two committees to
operate and administer the Plan in its stead, one of such
committees composed of two or more of its directors who are not
eligible to receive Options under the Plan to operate and
administer the Plan with respect to each person who is a "Principal
Officer" (as defined below), and the other such committee composed
of two or more directors (which may include directors who are also
employees, consultants or advisors of the Company) to operate and
administer the Plan with respect to each person other than a
"Principal Officer." Any of such committees designated by the Board
of Directors is referred to as the "Committee." As used herein, the
term "Principal Officer" means a person who is an "officer" of the
Company, within the meaning of Rule 16a-1(f) promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or any successor regulation.
(b) Meetings. The Committee shall hold meetings at such
times and places as it may determine. Acts approved at a meeting
by a majority of the members of the Committee or acts approved in
writing by the unanimous consent of the members of the Committee
shall be the valid acts of the Committee.
(c) Grants. The Committee shall from time to time, in
its discretion, direct the Company to grant Options pursuant to the
terms of the Plan. The Committee shall have plenary authority to
(i) determine the Optionees to whom, the times at which, and the
price at which Options shall be granted, (ii) determine the type of
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Option to be granted and the number of Shares subject thereto, and
(iii) approve the form and terms and conditions of the Option
Documents; all subject, however, to the express provisions of the
Plan. In making such determinations, the Committee may take into
account the nature of the Optionee's services and responsibilities,
the Optionee's present and potential contribution to the Company's
success and such other factors as it may deem relevant. The
interpretation and construction by the Committee of any provisions
of the Plan or of any Option granted under it shall be final,
binding and conclusive.
(d) Exculpation. No member of the Board of Directors
shall be personally liable for monetary damages for any action
taken or any failure to take any action in connection with the
administration of the Plan or the granting of Options under the
Plan, provided that this Subsection 3(c) shall not apply to (i) any
breach of such member's duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or involving
intentional misconduct or a knowing violation of law, (iii) acts or
omissions that would result in liability under Section 174 of the
General Corporation Law of the State of Delaware, as amended, and
(iv) any transaction from which the member derived an improper
personal benefit.
(e) Indemnification. Service on the Committee shall
constitute service as a member of the Board of Directors of the
Company. Each member of the Committee shall be entitled without
further act on his part to indemnity from the Company to the
fullest extent provided by applicable law and the Company's
Certificate of Incorporation and/or By-laws in connection with or
arising out of any action, suit or proceeding with respect to the
administration of the Plan or the granting of Options thereunder in
which he or she may be involved by reason of his or her being or
having been a member of the Committee, whether or not he or she
continues to be a member of the Committee at the time of the
action, suit or proceeding.
(f) Limitation on Grants of Options to Consultants and
Advisors. With respect to the grant of Options to consultants and
advisors, bona fide services shall be rendered by consultants and
advisors, and such services must not be in connection with a
capital raising transaction.
4. Grants under the Plan. Grants under the Plan may be in
the form of a Non-qualified Stock Option, an ISO or a combination
thereof, at the discretion of the Committee.
5. Eligibility. All employees and members of the Board of
Directors of, and (subject to Section 4) consultants and advisors
to, the Company or an Affiliate shall be eligible to receive
Options hereunder. The Committee, in its sole discretion, shall
determine whether an individual qualifies as an employee,
consultant or advisor.
6. Shares Subject to Plan. The aggregate maximum number of
Shares for which Options may be granted pursuant to the Plan is
five hundred thousand (500,000), subject to adjustment as provided
in Section 10 of the Plan. The Shares shall be issued from
authorized and unissued Common Stock or Common Stock held in or
hereafter acquired for the treasury of the Company. If an Option
terminates or expires without having been fully exercised for any
reason, the Shares for which the Option was not exercised may again
be the subject of one or more Options granted pursuant to the Plan.
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7. Term of the Plan. The Plan (as amended and restated) was
approved by the Board of Directors on December 13, 1994, and,
provided it is approved on or before December 12, 1995 by a
majority of the votes cast at a duly called meeting of the
stockholders at which a quorum representing a majority of all
outstanding voting stock of the Company is, either in person or by
proxy, present and voting, shall be effective as of the date of
consummation of the Merger Agreement. No Option may be granted
under the Plan after September 17, 2002.
8. Option Documents and Terms. Each Option granted under
the Plan shall be a Non-qualified Stock Option unless the Option
shall be specifically designated at the time of grant to be an ISO
for federal income tax purposes. If any Option designated as an
ISO is determined for any reason not to qualify as an incentive
stock option within the meaning of Section 422 of the Code, such
Option shall be treated as a Nonqualified Stock Option for all
purposes under the provisions of the Plan. Options granted
pursuant to the Plan shall be evidenced by the Option Documents in
such form as the Committee shall from time to time approve, which
Option Documents shall comply with and be subject to the following
terms and conditions and such other terms and conditions as the
Committee shall from time to time require which are not
inconsistent with the terms of the Plan.
(a) Number of Option Shares. Each Option Document shall
state the number of Shares to which it pertains. An Optionee may
receive more than one Option, which may include Options which are
intended to be ISO's and Options which are not intended to be
ISO's, but only on the terms and subject to the conditions and
restrictions of the Plan.
(b) Option Price. Each Option Document shall state the
Option Price which, for a Nonqualified Stock Option, may be less
than, equal to, or greater than the Fair Market Value of the Shares
on the date the Option is granted and, for an ISO, shall be at
least 100% of the Fair Market Value of the Shares on the date the
Option is granted as determined by the Committee in accordance with
this Subsection 8(b); provided, however, that if an ISO is granted
to an Optionee who then owns, directly or by attribution under
Section 424(d) of the Code, shares possessing more than ten percent
of the total combined voting power of all classes of stock of the
Company or an Affiliate, then the Option Price shall be at least
110% of the Fair Market Value of the Shares on the date the Option
is granted. If the Common Stock is traded in a public market, then
the Fair Market Value per share shall be, if the Common Stock is
listed on a national securities exchange or included in the NASDAQ
National Market System, the last reported sale price thereof on the
relevant date, or, if the Common Stock is not so listed or
included, the mean between the last reported "bid" and "asked"
prices thereof on the relevant date, as reported on NASDAQ or, if
not so reported, as reported by the National Daily Quotation
Bureau, Inc. or as reported in a customary financial reporting
service, as applicable and as the Committee determines.
(c) Exercise. No Option shall be deemed to have been
exercised prior to the receipt by the Company of written notice of
such exercise and of payment in full of the Option Price for the
Shares to be purchased. Each such notice shall specify the number
of Shares to be purchased and shall (unless the Shares are covered
by a then current and effective registration statement or qualified
Offering Statement under Regulation A under the Securities Act of
1933, as amended (the "Act")), contain the Optionee's
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acknowledgment in form and substance satisfactory to the Company
that (a) such Shares are being purchased for investment and not for
distribution or resale (other than a distribution or resale which,
in the opinion of counsel satisfactory to the Company, may be made
without violating the registration provisions of the Act), (b) the
Optionee has been advised and understands that (i) the Shares have
not been registered under the Act and are restricted securities
within the meaning of Rule 144 under the Act and are subject to
restrictions on transfer and (ii) the Company is under no
obligation to register the Shares under the Act or to take any
action which would make available to the Optionee any exemption
from such registration, (c) such Shares may not be transferred
without compliance with all applicable federal and state securities
laws, and (d) an appropriate legend referring to the foregoing
restrictions on transfer and any other restrictions imposed under
the Option Documents may be endorsed on the certificates.
Notwithstanding the foregoing, if the Company determines that
issuance of Shares should be delayed pending (A) registration under
federal or state securities laws, (B) the receipt of an opinion of
counsel satisfactory to the Company that an appropriate exemption
from such registration is available, (C) the listing or inclusion
of the Shares on any securities exchange or an automated quotation
system or (D) the consent or approval of any governmental
regulatory body whose consent or approval is necessary in
connection with the issuance of such Shares, the Company may defer
exercise of any Option granted hereunder until any of the events
described in this sentence has occurred.
(d) Medium of Payment. An Optionee shall pay for Shares
(i) in cash, (ii) by certified or cashier's check payable to the
order of the Company, (iii) by payment through a broker in
accordance with procedures permitted by Regulation T of the Federal
Reserve Board or (iv) by such other mode of payment as the
Committee may approve. Furthermore, the Committee may provide in
an Option Document that payment may be made in whole or in part in
shares of the Company's Common Stock held by the Optionee for at
least six months. If payment is made in whole or in part in shares
of the Company's Common Stock, then the Optionee shall deliver to
the Company certificates registered in the name of such Optionee
representing the shares owned by such Optionee, free of all liens,
claims and encumbrances of every kind and having an aggregate Fair
Market Value on the date of delivery that is at least as great as
the Option Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by the payment in
shares of Common Stock, endorsed in blank or accompanied by stock
powers duly endorsed in blank by the Optionee. In the event that
certificates for shares of the Company's Common Stock delivered to
the Company represent a number of shares in excess of the number of
shares required to make payment for the Option Price of the Shares
(or relevant portion thereof) with respect to which such Option is
to be exercised by payment in shares of Common Stock, the stock
certificate issued to the Optionee shall represent (i) the Shares
in respect of which payment is made, and (ii) such excess number of
shares. Notwithstanding the foregoing, the Committee may impose
from time to time such limitations and prohibitions on the use of
shares of the Common Stock to exercise an Option as it deems
appropriate.
(e) Termination of Options.
(i) No option shall be exercisable after the first
to occur of the following:
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(A) Expiration of the Option term specified in
the Option Document, which shall occur on or before (1) ten years
from the date of grant, or (2) five years from the date of grant of
an ISO if the Optionee on the date of grant owns, directly or by
attribution under Section 424(d) of the Code, shares possessing
more than ten percent (10%) of the total combined voting power of
all classes of stock of the Company or of an Affiliate;
(B) Expiration of three months from the date
the Optionee's employment or service with the Company or its
Affiliates terminates for any reason other than disability or death
or as otherwise specified in Subsection 8(e)(i)(D) or 8(e)(i)(E)
below;
(C) Expiration of one year from the date such
employment or service with the Company or its Affiliates terminates
due to the Optionee's Disability or death;
(D) A finding by the Committee, after full
consideration of the facts presented on behalf of both the Company
and the Optionee, that the Optionee has breached his employment or
service contract with the Company or an Affiliate, or has been
engaged in disloyalty to the Company or an Affiliate, including,
without limitation, fraud, embezzlement, theft, commission of a
felony or proven dishonesty in the course of his employment or
service, or has disclosed trade secrets or confidential information
of the Company or an Affiliate. In such event, in addition to
immediate termination of the Option, the Optionee shall
automatically forfeit all Shares for which the Company has not yet
delivered the share certificates upon refund by the Company of the
Option Price. Notwithstanding anything herein to the contrary, the
Company may withhold delivery of share certificates pending the
resolution of any inquiry that could lead to a finding resulting in
a forfeiture.
(E) The date, if any, set by the Board of
Directors as an accelerated expiration date in the event of the
liquidation or dissolution of the Company.
(ii) Notwithstanding the foregoing, the Committee
may extend the period during which all or any portion of an Option
may be exercised to a date no later than the Option term specified
in the Option Document pursuant to Subsection 8(e)(i)(A), provided
that any change pursuant to this Subsection 8(e)(ii) which would
cause an ISO to become a Non-qualified Stock Option may be made
only with the consent of the Optionee.
(f) Transfers. No Option granted under the Plan may be
transferred, except by will or by the laws of descent and
distribution. During the lifetime of the person to whom an Option
is granted, such Option may be exercised only by him.
Notwithstanding the foregoing, a Non-qualified Stock Option may be
transferred pursuant to the terms of a "qualified domestic
relations order," within the meaning of Sections 401(a)(13) and
414(p) of the Code or within the meaning of Title I of the Employee
Retirement Income Security Act of 1974, as amended.
(g) Limitation on ISO Grants. In no event shall the
aggregate fair market value of the shares of Common Stock
(determined at the time the ISO is granted) with respect to which
incentive stock options under all incentive stock option plans of
the Company or its Affiliates are exercisable for the first time by
the Optionee during any calendar year exceed $100,000.
6
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(h) Other Provisions. Subject to the provisions of the
Plan, the Option Documents shall contain such other provisions
including, without limitation, provisions authorizing the Committee
to accelerate the exercisability of all or any portion of an Option
granted pursuant to the Plan, additional restrictions upon the
exercise of the Option or additional limitations upon the term of
the Option, as the Committee shall deem advisable.
(i) Amendment. Subject to the provisions of the Plan,
the Committee shall have the right to amend Option Documents issued
to an Optionee, subject to the Optionee's consent if such amendment
is not favorable to the Optionee, except that the consent of the
Optionee shall not be required for any amendment made pursuant to
Subsection 8(e)(i)(E) or Section 9 of the Plan, as applicable.
9. Change of Control. In the event of a Change of Control,
all Options then outstanding under the Plan shall become
immediately exercisable in full. Any amendment to this Section 9
which diminishes the rights of Optionees shall not be effective
with respect to Options outstanding at the time of adoption of such
amendment, whether or not such outstanding Options are then
exercisable.
A "Change of Control" shall be deemed to have occurred upon
the earliest to occur of the following events: (i) the date the
stockholders of the Company (or the Board of Directors, if
stockholder action is not required) approve a plan or other
arrangement pursuant to which the Company will be dissolved or
liquidated, or (ii) the date the stockholders of the Company (or
the Board of Directors, if stockholder action is not required)
approve a definitive agreement to sell or otherwise dispose of
substantially all of the assets of the Company, or (iii) the date
the stockholders of the Company (or the Board of Directors, if
stockholder action is not required) and the stockholders of the
other constituent corporation (or its board of directors if
stockholder action is not required) have approved a definitive
agreement to merge or consolidate the Company with or into such
other corporation, other than, in either case, a merger or
consolidation of the Company in which holders of shares of the
Company's Common Stock immediately prior to the merger or
consolidation will have at least a majority of the voting power of
the surviving corporation's voting securities immediately after the
merger or consolidation, which voting securities are to be held in
the same proportion as such holders' ownership of Common Stock of
the Company immediately before the merger or consolidation, or (iv)
the date any entity, person or group, within the meaning of Section
13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of
1934, as amended (other than (A) the Company or any of its
subsidiaries or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any of its subsidiaries,
or (B) any other person who, on the date the Plan is effective,
shall have been the beneficial owner (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934,
as amended) of more than thirty percent (30%) of outstanding shares
of the Company's Common Stock), shall have become the beneficial
owner of, or shall have obtained voting control over, more than
thirty percent (30%) of the outstanding shares of the Company's
Common Stock, or (v) the first day after the date this Plan is
effective when directors are elected such that a majority of the
Board of Directors shall have been members of the Board of
Directors for less than two (2) years, unless the nomination for
election of each new director who was not a director at the
beginning of such two (2) year period was approved by a vote of at
least two-thirds of the directors then still in office who were
directors at the beginning of such period.
7
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10. Adjustments on Changes in Capitalization. The aggregate
number of Shares and class of shares as to which Options may be
granted hereunder, the number and class or classes of shares
covered by each outstanding Option and the Option Price thereof
shall be appropriately adjusted in the event of a stock dividend,
stock split, recapitalization or other change in the number or
class of issued and outstanding equity securities of the Company
resulting from a subdivision or consolidation of the Common Stock
and/or, if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the
issuance of Common Stock on the conversion of other securities of
the Company which are convertible into Common Stock) affecting the
Common Stock which is effected without receipt of consideration by
the Company. The Committee shall have authority to determine the
adjustments to be made under this Section, and any such
determination by the Committee shall be final, binding and
conclusive.
11. Amendment of the Plan. The Board of Directors of the
Company may amend the Plan from time to time in such manner as it
may deem advisable. Nevertheless, the Board of Directors of the
Company may not change the class of individuals eligible to receive
an ISO or increase the maximum number of shares as to which Options
may be granted without obtaining approval, within twelve months
before or after such action, by vote of a majority of the votes
cast at a duly called meeting of the stockholders at which a quorum
representing a majority of all outstanding voting stock of the
Company is, either in person or by proxy, present and voting on the
matter. No amendment to the Plan shall adversely affect any
outstanding Option, however, without the consent of the Optionee.
12. No Commitment to Retain. The grant of an Option pursuant
to the Plan shall not be construed to imply or to constitute
evidence of any agreement, express or implied, on the part of the
Company or any date to retain the Optionee in the employ of the
Company or an date and/or as a member of the Company's Board of
Directors or in any other capacity.
13. Withholding of Taxes. Whenever the Company proposes or
is required to deliver or transfer Shares in connection with the
exercise of an Option, the Company shall have the right to
(a) require the recipient to remit or otherwise make available to
the Company an amount sufficient to satisfy any federal, state
and/or local withholding tax requirements prior to the delivery or
transfer of any certificate or certificates for such Shares or (b)
take whatever other action it deems necessary to protect its
interests with respect to tax liabilities. The Company's
obligation to make any delivery or transfer of Shares shall be
conditioned on the Optionee's compliance, to the Company's
satisfaction, with any withholding requirement.
14. Interpretation. It is the intent of the Company that
transactions under the Plan with respect to directors and officers
(within the meaning of Section 16(a) under the Securities Exchange
Act of 1934, as amended) satisfy the conditions of Rule 16b-3. To
the extent that any provision of the Plan would result in a
conflict with such conditions, such provision shall be deemed null
and void. This Section shall not be applicable if no class of the
Company's equity securities is then registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended.
8
COLE, SCHOTZ, MEISEL, FORMAN & LEONARD
A Professional Corporation
Counsellors at Law
Court Plaza North
25 Main Street
P.O. Box 800
Hackensack, New Jersey 07602-0800
(201) 489-3000
November 18, 1996
USCI, Inc.
6115-A Jimmy Carter Boulevard
Norcross, Georgia 30071
Re: Registration Statement on Form S-8
Under the Securities Act of 1933
Gentlemen:
We are counsel to USCI, Inc., a Delaware corporation (the
"Company"), who has been requested that we render an opinion in
connection with a Registration Statement on Form S-8, filed by
the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Registration
Statement"), covering 750,000 shares (the "Shares") of common
stock par value $.0001 per share ("Common Stock"), issuable upon
the exercise of options ("Options") granted or available for
grant under the Company's Amended and Restated 1992 Stock Option
Plan (the "Stock Option Plan").
In that connection, we have examined the Certificate of
Incorporation, as amended, and the By-laws of the Company, the
Registration Statement, the Stock Option Plan, corporate
proceedings of the Company relating to the adoption of the Stock
Option Plan and the grant of Options thereunder, respectively,
and such other instruments and documents as we have deemed
relevant under the circumstances.
In making the aforesaid examinations, we have assumed the
genuiness of all signatures and the conformity to original
documents of all copies furnished to us as original or
photostatic copies. We have also assumed that the corporate
records furnished to us by the Company include all corporate
proceedings taken by the Company to date.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly authorized and reserved
for issuance and, when issued and paid for in accordance with the
terms of the Options and the Stock Option Plan, will be validly
issued, fully paid and non-assessable.
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USCI, Inc.
November 18, 1996
Page 2
Attorneys in the law firm of Cole, Schotz, Meisel, Forman &
Leonard, P.A., beneficially own less than three (3) percent of
the outstanding shares of the Company's Common Stock.
We hereby consent to the use of our opinion as herein set
forth as an exhibit to the Registration Statement and to the use
of our name under Item 5, Interest of Named Experts, in the
Registration Statement.
Very truly yours,
/s/ COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A.
-------------------------------------------------
COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A.
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of
our report dated March 15, 1996 included in USCI, Inc.'s
Annual Report on Form 10-K for the fiscal year ended December
31, 1995 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
----------------------------
ARTHUR ANDERSEN LLP
Atlanta, Georgia
November 18, 1996
