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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVTEL COMMUNICATIONS, INC.
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(Exact name of Registrant as specified in its charter)
UTAH 87-0378021
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(State or other jurisdiction of incorporation) (IRS Employer
Identification Number)
130 CREMONA DRIVE, SUITE C, SANTA BARBARA, CA 93117
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(Address of Principal Executive Offices) (Zip Code)
AVTEL COMMUNICATIONS, INC. 1997 STOCK INCENTIVE PLAN
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(Full Title of the Plan)
C T CORPORATION SYSTEM
50 WEST BROADWAY 84, SALT LAKE CITY, UTAH 84101
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(Name and address of agent for service)
(801) 531-7090
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(Telephone number, including area code, of agent for service)
With a Copy to: RAYMOND P. LE BLANC, ESQ. (805) 962-0011
PRICE, POSTEL & PARMA LLP
200 EAST CARRILLO STREET, SUITE 400
SANTA BARBARA, CA 93101
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES PROPOSED
TO BE REGISTERED PROPOSED MAXIMUM
$.001 PAR VALUE AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
COMMON STOCK BE REGISTERED PRICE PER SHARE/(1)/ PRICE/(1)/ REGISTRATION FEE
<S> <C> <C> <C>
1,500,000 $3.6875 $5,531,250 $1,676.00
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Notes:
1. If plan interests are being registered, include the following: In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan(s) described herein.
2. Specific details relating to the fee calculation shall be furnished in
notes to the table, including references to provisions of Rule 457 ((S)
230.457 of this chapter) relied upon, if the basis of the calculation is
not otherwise evident from the information presented in the table.
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(1) Estimated solely for purposes of determining the registration fee based
upon the average between the bid and ask prices of the common stock on the
National Association of Securities Dealers OTC Bulletin Board on June 26,
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 previously been filed by Avtel
Communications, Inc. (the "Company" or the "Registrant") with the Securities and
Exchange Commission ("Commission") are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-KSB for the fiscal year ended
September 30, 1996;
(b) The description of the Registrant's common stock contained in the
Registrant's Registration Statement on Form 10-SB, as amended through
May 23, 1996;
(c) The Registrant's combined form of Notice of Annual Meeting and Proxy
Statement dated December 31, 1996, for the Registrant's Annual Meeting
of Shareholders held February 27, 1997;
(d) The Registrant's Quarterly Reports on Form 10-QSB for the quarters
ended December 31, 1996 and March 31, 1997;
(e) The Registrant's Interim Reports on Forms 8-K dated October 23, 1996
(merger with AvTel Holdings, Inc.), March 6, 1997 (acquisition of
WestNet Communications, Inc.), and May 20 1997 (news release regarding
intended acquisition of Matrix Telecom, Inc.)
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date hereof and 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 by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents. Copies of these
documents will not be filed with this Registration Statement. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this Registration Statement except
as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 16-10a-841 of the Utah Revised Business Corporations Act
("URBCA") permits a corporation, if so provided in its articles of
incorporation, its bylaws or in a shareholder resolution, to eliminate or limit
the personal liability of a director to the corporation or its shareholders for
monetary damages due to any action taken or any failure to take action as a
director, except liability for: (a) improper financial benefits receive by a
director; (b) intentional inflictions of harm on the corporation or its
shareholders; (c) payment of dividends to shareholders making the corporation
insolvent; and (d) intentional violations of criminal law. The Registrant's
Amended and Restated Articles of Incorporation eliminate the liability of
directors of the corporation for monetary damages to the fullest extent
permissible under URBCA.
Under the URBCA, a corporation may indemnify its directors, officers,
employees and other agents made party to any proceeding because of their
relationship to the corporation against expenses, judgments, fines, settlements
and other amounts actually and reasonably incurred in connection with such
proceeding if that person acted in good faith and in a manner reasonably
believed to be in the corporation's best interests, and, in the case of a
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. The URBCA also permits a corporation to indemnify its directors,
officers, employees and other agents in connection with a proceeding by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that the person is such an agent of the corporation, against expenses
actually and reasonably incurred by such person in connection with the
proceeding. The URBCA prohibits the indemnification of an agent in connection
with a proceeding by or in the right of the corporation in which the director
was adjudged liable to the corporation, or in connection with any other
proceeding in which the agent is adjudged liable on the basis that the agent
derived an improper personal benefit. The Registrant's Amended and Restated
Articles of Incorporation and Bylaws permit indemnification of all such persons
whom it has the power to indemnify to the fullest extent legally permissible
under the URBCA. The URBCA permits a corporation to advance expenses incurred
by a director, officer, employee or agent who is a party to a proceeding in
advance of final disposition of the proceeding if that person provides (a) a
written affirmation of his good faith belief that he acted in good faith, in the
corporation's best interests and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful; (b) a written undertaking
by or on behalf of that person to repay the advance if it ultimately determined
that indemnification by the Company is inappropriate; and (c) the corporation
determines under the facts then known that indemnification would not be
precluded. The Registrant's Bylaws permit such advances.
The Bylaws of the Company generally require indemnification of any
officer or director of the Company for all costs, charges, expenses, liabilities
and losses (including attorneys' fees, judgments, fines, ERISA excise taxes o
penalties and amounts paid in settlement) incurred in any action, suit or
proceeding by reason of the fact that he is or was a director of the Company
except to the extent that such indemnification would be expressly prohibited
under Utah law or the Company's Amended and Restated Articles of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
The following exhibits are filed herewith:
4.1 1997 Stock Incentive Plan/(1)/
5.1 Opinion of Price, Postel & Parma LLP
23.1 Consent of Price, Postel & Parma LLP (included in Exhibit 5.1)
23.2 Consent of Robison, Hill & Co.
24.1 Power of Attorney of certain officers and directors (included on
signature page of Registration Statement)
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(1) Filed as an Exhibit to the Registrant's combined form of Notice of Annual
Meeting of Shareholders and Proxy Statement dated December 31, 1996, with
the Commission in definitive form on Schedule 14A on or about January 8,
1997.
ITEM 9. UNDERTAKINGS
(a) The undersigned Company 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 this Registration Statement
(or the most recent post-effective amendment hereof)
which individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement; and
(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;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933 (the "Act"), 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; and
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(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 Company hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Company'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 Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that, in the opinion of the commission, such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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 requirement of the Securities Act of 1933, as amended,
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 Santa Barbara, State of California, on June 29,
1997.
AVTEL COMMUNICATIONS, INC.
By /s/ Anthony E. Papa
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below hereby constitutes and appoints Anthony E. Papa as his or her true
and lawful attorney-in-fact and agent, and with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including pre-effective
amendments and 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
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 in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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Signature Title Date
<S> <C> <C>
/s/ Anthony E. Papa President & Chief Executive Officer July 1, 1997
Anthony E. Papa
/s/ James P. Pisani Executive Vice President & July 1, 1997
James P. Pisani Chief Operating Officer,
Chief Financial Officer & Secretary
/s/ Frank Dziuba Senior Vice President July 1, 1997
Frank Dziuba Software Development
/s/ Barry S. Peters Director July 1, 1997
Barry S. Peters
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EXHIBIT 5.1
PRICE, POSTEL & PARMA LLP
200 East Carrillo, Suite 400
Santa Barbara, CA 93101
July 1, 1997
AvTel Communications, Inc.
130 Cremona Drive, Suite C
Santa Barbara, CA 93117
Ladies & Gentlemen:
We have acted as counsel to AvTel Communications, Inc. (the "Company").
This opinion is rendered in connection with the filing of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended, relating to the 1997 Stock Incentive Plan (the "1997 Plan").
In the preparation of this opinion, we have examined originals or copies of
such documents as we have deemed necessary or advisable in order to render the
opinion set forth below. In rendering the opinion set forth below, we have
assumed:
(a) the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of all such
originals;
(b) the due authorization, execution and delivery of the Registration
Statement and the documents and instruments referred to therein by and
on behalf of all parties thereto; and
(c) the issuance of Common Stock in accordance with the terms of the 1997
Plan.
On the basis of the foregoing, and subject to the qualifications and
limitations set forth below, it is our opinion that the Common Stock covered by
the Registration Statement, when issued and paid for in accordance with the 1997
Plan, will be legally issued, fully paid and non-assessable.
This opinion speaks only as of the date hereof and is based solely upon the
existing laws of the United States, and the general corporation laws of the
State of California, and the State of Delaware, and we express no opinion, and
none should be inferred, as to any other laws.
This opinion may not be relied upon by any other person or for any other
purpose, nor may it be quoted from or referred to, or copies delivered to any
other person, without our prior written consent. We hereby consent to the
inclusion of this opinion as an exhibit in the Registration Statement.
Respectfully submitted,
PRICE, POSTEL & PARMA LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our reports dated December 12,
1996, included in AvTel Communications, Inc.'s Form 10-KSB for the year ended
September 30, 1996, and to all references to our firm included in this
Registration Statement.
/S/ ROBISON HILL & CO.
