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As filed with the Securities and Exchange Commission on April 9, 1997
File No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Pacific Gateway Exchange, Inc.
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-3134065
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
533 Airport Blvd., Suite 505
Burlingame, California 94010
(Address of Principal Executive Offices) (Zip Code)
Pacific Gateway Exchange, Inc. 1995 Stock Option Plan
(Full Title of the Plan)
Howard A. Neckowitz
President and Chief Executive Officer
533 Airport Blvd., Suite 505
Burlingame, California 94010
(Name and Address of Agent For Service)
(415) 375-6700
(Telephone Number, Including Area Code, of Agent For Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to Offering Aggregate Amount of
Securities to be be Price Per Offering Registration
Registered Registered Share * Price * on Fee
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<S> <C> <C> <C> <C>
Common Stock, 1,200,000
$.0001 par value.. Shares $24.75 $29,700,000 $9,000.00
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* Pursuant to Rule 457(h)(1), the Proposed Maximum Offering Price Per Share
is estimated as $24.75 solely for purposes of calculating the registration
fee on the basis of the average of the high and low prices of the Common
Stock as reported in The Wall Street Journal on April 4, 1997.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have heretofore been filed by Pacific Gateway
Exchange, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are incorporated by reference herein and shall
be deemed to be a part hereof:
(a) The Company's Prospectus filed pursuant to Rule 424(b), dated
July 19, 1996 (Commission File No. 33-80191).
(b) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
(c) The description of Common Stock of the Company contained in a
Registration Statement on Form 8-A, filed on July 18, 1996,
pursuant to Section 12 of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and shall be deemed a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
James J. Junewicz is a partner of the law firm of Mayer, Brown & Platt.
As a director of the Company, Mr. Junewicz was granted an option to purchase
20,000 shares of the Company's Common Stock pursuant to the terms of the
Company's 1995 Stock Option Plan (the "Plan") and will be eligible to receive
additional awards under the Plan.
Item 6. Indemnification of Directors and Officers.
(a) The Delaware General Corporation Law (the "Delaware GCL") (Section
145) gives Delaware corporations broad powers to indemnify their present and
former directors and officers and those of affiliated corporations against
expenses incurred in the defense of any lawsuit to which they are made
parties by reason of being or having been such directors or officers, subject
to specified conditions and exclusions, gives a director or officer who
successfully defends an action the right to be so indemnified, and authorizes
2
the Company to buy directors' and officers' liability insurance. Such
indemnification is not exclusive of any other rights to which those
indemnified may be entitled under any by-laws, agreement, vote of
stockholders or otherwise.
(b) Article 10 of the Certificate of Incorporation of the Company
and Article 8 of the Company's By-laws provides for indemnification of
directors and officers to the fullest extent permitted by law. The Company
has entered or expects to enter into Indemnity Agreements with each of its
directors, a copy of which has been filed as an exhibit to the Company's
Registration Statement on Form S-1 (Commission File No. 33-80191). The
Company presently maintains Director's and Officer's insurance with limits
up to $10 million.
(c) In accordance with Section 102(b)(7) of the Delaware GCL, the
Company's Certificate of Incorporation provides that directors shall not be
personally liable to the Company or its stockholders for monetary damages for
breaches of their fiduciary duty as directors except for (1) breaches of
their duty of loyalty to the Company or its stockholders, (2) acts or
omissions not in good faith or which involve intentional misconduct or
knowing violations of law, (3) under Section 174 of the Delaware GCL
(unlawful payment of dividends) or (4) transactions from which a director
derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index which is incorporated herein by reference.
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;
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(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.
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;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) 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 with or furnished to the Commission 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 registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
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or Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(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 of the
registrant's certificate of incorporation or by-laws 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 Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burlingame, State
of California, on this 9th day of April, 1997.
PACIFIC GATEWAY EXCHANGE, INC.
By: /s/ Howard A. Neckowitz
Howard A. Neckowitz
President, Chief Executive
Officer and Chairman
of the Board
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Howard A. Neckowitz, the true and lawful attorney-in-fact and
agents of the undersigned, with full power of substitution and
resubstitution, for and in the name, place and stead of the undersigned,
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, and hereby
grants to such attorney-in-fact and agent 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 the undersigned might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, 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 below by the following persons in
their respective capacities on this 9th day of April, 1997.
Signature Title
--------- -----
/s/ Howard A. Neckowitz President, Chief Executive Officer
Howard A. Neckowitz and Chairman of the Board and
Director (Principal Executive
Officer)
/s/ Gail E. Granton Executive Vice President,
Gail E. Granton International Business Development,
Secretary and Director
/s/ Sandra Grey Chief Financial Officer
Sandra Grey (Principal Financial Officer)
(Principal Accounting Officer)
/s/ /Ronald L. Jensen Director
Ronald L. Jensen
/s/ Charles M. Dalfen Director
Charles M. Dalfen
/s/ James J. Junewicz Director
James J. Junewicz
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EXHIBIT INDEX
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Exhibit
Number Description of Exhibit
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<S> <C>
4(a) Certificate of Incorporation of Pacific Gateway
Exchange, Inc., as amended. */
4(b) By-laws of Pacific Gateway Exchange, Inc.,
as amended. */
5 Opinion of Mayer, Brown & Platt.
23(a) Consent of Coopers & Lybrand L.L.P.
23(b) Consent of Mayer, Brown & Platt (contained in
Exhibit 5).
24 Powers of Attorney (included on the signature
page of the registration statement).
*/ Filed as an exhibit to the Company's Registration Statement on Form
S-1, filed December 8, 1995, as amended (File No. 33-80191), and
incorporated into this Registration Statement on Form S-8 by
reference.
</TABLE>
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Exhibit 5
[MAYER, BROWN & PLATT LETTERHEAD]
April 9, 1997
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Re: Pacific Gateway Exchange, Inc.
Registration Statement on Form S-8 -- 1995 Stock Option Plan
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Ladies and Gentlemen:
We have acted as special counsel to Pacific Gateway Exchange, Inc., a
Delaware corporation (the "Company"), and we are familiar with the
corporate proceedings taken and to be taken in connection with the
registration under the Securities Act of 1933, as amended, of 1,200,000
shares of Common Stock, $.0001 par value per share ("Common Stock"), of
the Company available for issuance under the Company's 1995 Stock Option
Plan (the "Plan").
We have examined the Company's Registration Statement on Form S-8
relating to the Common Stock to be issued under the Plan (the
"Registration Statement") and are familiar with the Certificate of
Incorporation and the By-laws of the Company and the Plan. We have also
examined such other documents, records and certificates of the Company
as we consider necessary for the purpose of this opinion.
Based on the foregoing, we are of the opinion that the shares of Common
Stock to be issued pursuant to the Plan have been duly authorized and
will, upon due issuance and sale thereof, be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Mayer, Brown & Platt
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Exhibit 23(a)
Consent of Independent Accountants
We consent to the incorporation by reference in the registration
statement of Pacific Gateway Exchange, Inc. and subsidiaries on Form S-8,
of our report dated February 19, 1997, with respect to the consolidated
financial statements and financial statement schedule of
Pacific Gateway Exchange, Inc. and subdsidiaries as of December 31, 1996
and 1995, and for the years ended December 31, 1996, 1995, 1994, included
in the Company's Annual Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
San Francisco, California
April 9, 1997
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