As filed with the Securities and Exchange Commission on May 1, 1998
File No. 333-24833
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective Amendment No. 1
to
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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
and Pacific Gateway Exchange, Inc. 1997 Long-Term Incentive Plan
(Full Title of the Plans)
Howard A. Neckowitz
President and Chief Executive Officer
533 Airport Blvd., Suite 505
Burlingame, California 94010
(Name and Address of Agent For Service)
(650) 375-6700
(Telephone Number, Including Area Code, of Agent For Service)
<PAGE>
Purpose of Amendment
On May 16, 1997, the stockholders of Pacific Gateway Exchange, Inc.
(the "Company") approved the Pacific Gateway Exchange, Inc. 1997 Long-Term
Incentive Plan (the "1997 Plan") which was intended to replace the Pacific
Gateway Exchange, Inc. 1995 Stock Option Plan (the "1995 Plan"). The 1997
Plan was adopted in order to attract and retain employees and other service
providers to the Company and to identify the interests of such individuals
with the Company's stockholders through the use of equity-based
compensation. Under the 1995 Plan, options and shares issued upon the
exercise thereof representing 903,255 shares were outstanding as of April 23,
1998 and 296,745 shares remained available for additional awards
thereunder. The 1997 Plan authorizes 4,000,000 shares of Common Stock, par
value $.0001, to be used for stock options, stock appreciation rights,
restricted stock and performance unit awards and this registration
statement is being amended to cover the issuance under the 1997 Plan of
shares of Common Stock registered hereunder and remaining unissued under
the 1995 Plan. A separate registration statement is being filed pursuant to
General Instruction E to register shares issuable under the 1997 Plan in
excess of those remaining available and unissued under the 1995 Plan.
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<PAGE>
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 Annual Report on Form 10-K for the year ended
December 31, 1997, amended by Form 10-K/A Amendment No. 1.
(b) 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, as amended November 21, 1997.
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, a partner at the law firm Mayer, Brown & Platt
which serves as legal counsel to the Company, is also a member of the Board
of Directors of the Company.
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 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 Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1997 (Commission
File No. 000-21043). 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
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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;
(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;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3
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
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<PAGE>
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
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 or amendment thereto to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Burlingame,
State of California, on this 1st day of May, 1998.
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 or Gail E. Granton, 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 or amendment thereto has been signed below by the
following persons in their respective capacities on this 1st day of May,
1998.
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
Sandra Grey Chief Financial Officer
(Principal Financial Officer)
(Principal Accounting Officer)
/s/ Barry J. Volante
Barry J. Volante Director
/s/ Charles M. Dalfen
Charles M. Dalfen Director
/s/ James J. Junewicz
James J. Junewicz Director
S-1
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------ ----------------------
4(a) Amended and Restated Certificate of Incorporation
of Pacific Gateway Exchange, Inc., as amended
May 20, 1997.1/
4(b) By-laws of Pacific Gateway Exchange, Inc., as
amended December 30, 1997.2/
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).
1/ Filed as Exhibit 3.1 to the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997 (File No. 000- 21043),
and incorporated into this Registration Statement on Form S-8 by
reference.
2/ Filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K
for the year ended December 31, 1997 (File No. 000-21043), and
incorporated into this Registration Statement on Form S-8 by
reference.
E-1
Exhibit 5
[MAYER, BROWN & PLATT LETTERHEAD]
May 1, 1998
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 20549
Re: Pacific Gateway Exchange, Inc.
Registration Statements on Form S-8 -- 1997 Long-Term Incentive Plan
--------------------------------------------------------------------
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 4,000,000
shares of Common Stock, $.0001 par value per share ("Common Stock"), of the
Company available for issuance under the Company's 1997 Long-Term Incentive
Plan (the "Plan").
We have examined the Company's Registration Statements on Form S-8 relating
to the Common Stock to be issued under the Plan (the "Registration
Statements") 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 Statements.
Very truly yours,
Mayer, Brown & Platt
