Registration No. 333-_____
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. 1997 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
<TABLE>
<CAPTION>
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, 325,000 shares $5.44 $1,768,000 $610
$.0001 par value
Common Stock, 325,000 shares $3.50 $1,137,500 $392
$.0001 par value
Common Stock, 100,000 shares $4.25 $ 425,000 $147
$.0001 par value
Total 750,000 shares $3,330,500 $1,149
=======================================================================================
=====
<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.
1997 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 September 30, 1997.
</FN>
</TABLE>
<PAGE>
<PAGE>
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, 1996.
b.1 Quarterly Report of the Company on Form 10-Q for the
quarter ended March 31, 1997.
b.2 Quarterly Report of the Company on Form 10-Q for the
quarter ended June 30, 1997.
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.
II-1
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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. 1997 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.
II-3
<PAGE>
<PAGE>
(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.
II-4
<PAGE>
<PAGE>
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 7th day of October, 1997.
USCI, Inc.
Registrant
By: /s/ Bruce A. Hahn
---------------------------
Bruce A. Hahn,
Chairman of the Board and
Chief Executive Officer
II-5
<PAGE>
<PAGE>
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.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------------------------------------------------
<S> <C> <C>
/s/ Bruce A. Hahn Chairman of the Board October 7, 1997
- ------------------------- and Chief Executive
Bruce A. Hahn Officer, Director
/s/ Robert J. Kostrinsky Chief Financial Officer October 7, 1997
- ------------------------- and Principal
Robert J. Kostrinsky Accounting Officer
/s/ Edgar Puthuff
- ------------------------- Director October 7, 1997
Edgar Puthuff
/s/ Jerome S. Baron
- ------------------------- Director October 7, 1997
Jerome S. Baron
/s/ Salvatore T. DiMascio
- -------------------------- Director October 7, 1997
Salvatore T. DiMascio
</TABLE>
II-6
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 USCI, Inc. 1997 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).
II-7
EXHIBIT 4.1
USCI, INC.
1997 STOCK OPTION PLAN
1. Purpose. The USCI, Inc. 1997 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) "Act" means the Securities Act of 1933, as amended.
(b) "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.
(c) "Board of Directors" means the Board of Directors of the Company.
(d) "Change of Control" shall have the meaning as set forth in Section
9 of the Plan.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "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.
(g) "Company" means USCI, Inc., a Delaware corporation.
(h) "Disability" shall have the meaning set forth in Section 22(e)(3)
of the Code.
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" shall have the meaning set forth in Subsection
8(b) of the Plan.
(k) "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.
(l) "Non-Employee Director" shall have the meaning set forth in Rule
16b-3.
<PAGE>
<PAGE>
(m) "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.
(n) "Option" means either an ISO or a Non-qualified Stock Option
granted under the Plan.
(o) "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.
(p) "Option Document" means the document described in Section 8 of the
Plan which sets forth the terms and conditions of each grant of Options.
(q) "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.
(r) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act.
(s) "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 the Board of
Directors or by a committee appointed by the Board consisting of at least two
Directors; provided, however, that any options granted to directors and
officers (within the meaning of Section 16(a) under the Exchange Act) must be
approved prior to such grant by the Board of Directors or a committee
consisting solely of two "Non-Employee" directors.
(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 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, and (iv) any transaction
from which the member derived an improper personal benefit.
<PAGE>
<PAGE>
(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.
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 3(f)) 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 seven hundred fifty
thousand (750,000), 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.
7. Term of Plan.
(a) The Plan shall become effective upon the earlier to occur of its
adoption by the Board of Directors or its approval by the stockholders of the
Company as set forth in Section 7(b) below. The Plan shall continue in effect
for a term of ten (10) years, unless sooner terminated under Section 11 of the
Plan.
(b) Stockholder approval shall be obtained within 12 months of
adoption of the Plan by the Board of Directors. Stockholder approval may be
obtained by a majority of the votes case at a duly held stockholders' meeting
at which a quorum representing a majority of all outstanding voting stock is,
either in person or by proxy, present and voting.
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 Non-qualified 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.
<PAGE>
<PAGE>
(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 Non-qualified 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 Act), contain the
Optionee's 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
<PAGE>
<PAGE>
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. 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:
(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.
<PAGE>
<PAGE>
(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. To the extent that 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, such
options shall be treated as options which are not ISOs.
(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
<PAGE>
<PAGE>
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 Exchange Act
(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 Exchange Act) 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.
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 and Termination of the Plan. The Board of Directors of the
Company may amend or terminate the Plan from time to time in such manner as
it may deem advisable without further action by the Company's stockholders
except to the extent required by applicable law. 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.
<PAGE>
<PAGE>
14. Interpretation.
(a) 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 Exchange Act) 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 Exchange Act.
(b) It is the intent that all provisions in the Plan pertaining to
ISOs satisfy the conditions of Section 422 of the Code and the Regulations
promulgated thereunder. 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.
EXHIBIT 5
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
October 7, 1997
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
1997 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.
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.
EXHIBIT 23.2
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 February 28, 1997
included in USCI, Inc.'s Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 and to all references to our firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
----------------------------
ARTHUR ANDERSEN LLP
Atlanta, Georgia
October 7, 1997
