As filed with the Securities and Exchange Commission on February__, 2000
File No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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)
500 Airport Blvd., Suite 340
Burlingame, California 94010
(Address of Principal Executive Offices) (Zip Code)
Pacific Gateway Exchange, Inc. 1997 Supplemental Long-Term Incentive 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)
Telephone Number, Including Area Code, of Agent For Service: (650) 375-6700
copy to
Laura D. Richman
Mayer, Brown & Platt
190 S. LaSalle Street
Chicago, Illinois 60603
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CALCULATION OF REGISTRATION FEE
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Proposed
Titles of Proposed Maximum
Securities Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Registration
Registered Registered Per Share* Price* Fee
---------- ------------ ---------------- --------- -------------
Common Stock, 4,500,000 Shares $20.72 $93,240,000 $24,614
$.0001 par
value
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* Pursuant to Rule 457(h)(1), the Proposed Maximum Offering Price
Per Share is estimated as $20.72 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 February 8, 2000
<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, 1998, as amended.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999.
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1999.
(e) 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.
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<PAGE>
(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 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;
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<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 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
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.
(c) 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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<PAGE>
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 10th day of February, 2000.
PACIFIC GATEWAY EXCHANGE, INC.
By:/s/ Sandra Grey
--------------------------------
Sandra Grey
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<PAGE>
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 10th day of
February, 2000.
Signature Title
- --------- ------
/s/ Howard A. Neckowitz President, Chief Executive Officer and
- -------------------------- Chairman of the Board and Director
Howard A. Neckowitz (Principal Executive Officer)
/s/ Gail E. Granton Chief Operating Officer, Global Marketing and
- -------------------------- Offshore Development, Secretary and Director
Gail E. Granton
/s/ Sandra Grey Chief Financial Officer
- -------------------------- (Principal Financial Officer)
Sandra Grey (Principal Accounting Officer)
/s/ Robert Calafell Director
- --------------------------
Robert Calafell
/s/ Charles M. Dalfen Director
- --------------------------
Charles M. Dalfen
/s/ James J. Junewicz Director
- --------------------------
James J. Junewicz
/s/ Barry J. Volante Director
- --------------------------
Barry J. Volante
-5-
<PAGE>
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 PricewaterhouseCoopers LLP
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 Quarterly Report on Form
10-Q for the quarter ended September 30, 1998 (File No.
000-21043), and incorporated into this Registration Statement on
Form S-8 by reference.
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Exhibit 5
[MAYER, BROWN & PLATT LETTERHEAD]
February 10, 2000
Securities and Exchange Commission
450 Fifth Street
Washington, D.C. 2054
Re: Pacific Gateway Exchange, Inc.
Registration Statements on Form S-8 -- 1997 Supplemental
Long-Term Incentive 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 4,500,000
shares of Common Stock, $.0001 par value per share ("Common Stock"), of the
Company available for issuance under the Company's 1997 Supplemental
Long-Term Incentive 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
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 19, 1999, except for
Note 10, as to which the date is March 2, 1999, relating to the financial
statements, which appears in the 1998 Annual Report to Shareholders of
Pacific Gateway Exchange, Inc., which is incorporated by reference in
Pacific Gateway Exchange, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1998. We also consent to the incorporation by reference
of our report dated February 19, 1999 relating to the financial statement
schedules, which appears in such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
San Francisco, California
February 10, 2000
