As filed with the Securities and Exchange Commission on September 30, 1998
File No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
AVTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 87-0378021
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
501 Bath Street 93101
Santa Barbara, California (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code:
(805) 884-6300
1998 Stock Incentive Plan of
AvTel Communications, Inc.
(Full title of the Plan)
James P. Pisani, President and Secretary
501 Bath Street
Santa Barbara, California 93101
(805) 884-6300
(Agent for Service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (1) Per Share (2) Offering Price (2) Registration Fee
---------------------- ------------------ ---------------- -------------------- ------------------
<S><C> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 1,500,000 Shares $2.375 $3,562,500 $1,051
====================== ================== ================ ==================== ==================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Stock Incentive
Plan by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without the receipt of
consideration which results in an increase in the number of the
outstanding shares of Common Stock of AvTel Communications, Inc.
(2) Calculated solely for the purposes of this offering under Rule 457(h)
of the Securities Act of 1933, as amended, on the basis of the average
of the high and low prices per share of Common Stock of AvTel
Communications, Inc. on September 28, 1998.
================================================================================
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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 AvTel
Communications, Inc. ("AvTel" or "Registrant") with the Securities and Exchange
Commission (the "SEC"), are incorporated by reference herein and shall be deemed
to be a part hereof:
(a) Form 10-K for the year ended December 31, 1997 (File No. 0-27580);
(b) Form 10-Q for the quarter ended March 31, 1998 (File No. 0-27580);
(c) Form 10-Q for the quarter ended June 30, 1998 (File No. 0-27580);
(d) Form 8-K filed December 9, 1997 as amended on March 13, 1998 (File No.
0-27580); and
(e) The description of AvTel's shares of Common Stock contained in AvTel's
registration statement on Form 10-SB, as amended, initially filed with
the SEC on January 16, 1996 (File No. 0-27580).
All documents subsequently filed by AvTel pursuant to Sections 13(a), 13(c), 14
and 15(d) if the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article VIII of the Registrant's Certificate of Incorporation
("Article VIII") is consistent with Section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which generally permits a company to include a
provision limiting the personal liability of a director in the company's
certificate of incorporation. With limitations, Article VIII eliminates the
personal liability of the Registrant's directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director.
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However, Article VIII does not eliminate director liability (i) for breaches of
the duty of loyalty to the Registrant and its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for transactions from which a director derives improper
personal benefit and (iv) under Section 174 of the DGCL ("Section 174"). Section
174 makes directors personally liable for unlawful dividends and stock
repurchases or redemptions and expressly sets forth a negligence standard with
respect to such liability. Article VIII provides further that a director shall
not be personally liable to the Registrant or its stockholders to such further
extent as permitted by any law subsequently enacted, including any subsequent
amendment to the DGCL. While Article VIII protects the directors from awards for
monetary damages for breaches of their duty of care, it does not eliminate their
duty of care.
Under Section 145 of the DGCL, directors and officers, as well as other
employees and individuals, may be indemnified against expenses (including
attorneys' fees), judgments, fines, amounts paid in settlement in connection
with specified actions, suits, or proceedings, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of the
corporation-a "derivative action") if they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to criminal actions or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard of
care is applicable in the case of derivative actions, except that
indemnification only extends to expenses (including attorneys' fees) incurred in
connection with the defense or settlement of such an action, and the DGCL
requires court approval before there can be any indemnification where the person
seeking indemnification has been found liable to the corporation.
With certain limitations, Article VI of the Registrant's By-Laws ("Article VI")
provides for indemnification of any of the Registrant's current and former
officers and directors against expenses, liabilities or other matters to the
fullest extent permitted by Section 145. Indemnification rights under Article VI
are non-exclusive. In the event of an officer's or director's death, such
person's indemnification rights shall extend to his or her heirs and legal
representatives. Article VI provides that the Registrant shall indemnify its
directors and officers (and, in the discretion of the Board, employees of the
Registrant or persons serving at the request of the Registrant in any other
capacity for or on behalf of the Registrant) to the full extent permitted by law
against any liability or expense actually and reasonably incurred. Article VI
provides further that the Registrant shall advance expenses incurred by an
officer or director in defending a civil or criminal action, suit or proceeding
upon receipt of an undertaking by or on behalf of such officer or director to
repay such amount if it shall ultimately be determined that such officer or
director is not entitled to be indemnified.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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<PAGE>
Item 9. Undertakings.
A. Rule 415 Offering
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)(l)(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 by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act
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. Filings Incorporating Subsequent Exchange Act Documents by Reference.
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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 Exchange Act
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) 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. Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8.
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 charter 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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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of AvTel Communications, Inc., hereby constitutes and appoints Anthony
E. Papa and James P. Pisani, 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, with full power to act alone, to
sign any and all amendments (including posteffective amendments) to this
registration statement, and to file the same, with all exhibits thereto, and any
and all 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 any and all acts and things requisite
and necessary to be done in and about the premises, as fully and 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 his substitute or
nominee, may lawfully do or cause to be done by virtue hereof.
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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 Santa Barbara, State of California, on September 28,
1998.
AVTEL COMMUNICATIONS, INC.
By/s/ ANTHONY E. PAPA
Name: Anthony E. Papa
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below on September 28, 1998, by the following persons
in the capacities indicated.
Signature Title
/s/ ANTHONY E. PAPA Chairman of the Board and Chief
Anthony E. Papa Executive Office (Principal Executive
Officer)
/s/ JAMES P. PISANI President, Chief Operating Officer,
James P. Pisani Chief Financial Officer and Director
(Principal Financial Officer)
/s/ VIRGINIA A. BAKER Controller and Chief Accounting Officer
Virginia A. Baker (Principal Accounting Officer)
/s/ JOHN E. ALLEN Director
John E. Allen
/s/ JEFFREY J. JENSEN Director
Jeffrey J. Jensen
/s/ GREGORY T. MUTZ Director
Gregory T. Mutz
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<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description of Document
3.1 Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to
AvTel's Annual Report on Form 10-KSB for the year ended September 30, 1997
(File No. 0-27580)(the "Form 10-KSB")).
3.2 Bylaws (incorporated by reference to Exhibit 3.2 to the Form 10-KSB).
4.1 Form of stock certificate for shares of Common Stock (incorporated by
reference to Exhibit 4.1 to AvTel's Registration Statement on Form S-8
dated May 22, 1998).
4.2 1998 Stock Incentive Plan of AvTel Communications, Inc. (incorporated by
reference to Exhibit A to AvTel's Definitive Proxy Statement on Schedule
14A dated April 28, 1998).
5 Opinion of Seed, Mackall & Cole LLP (set forth on page II-8).
23.1 Consent of KPMG Peat Marwick LLP (set forth on page II-9).
23.2 Consent of Seed, Mackall & Cole LLP (included in Exhibit 5).
24 Power of Attorney (included on page II-5)
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Exhibit 5
September 29, 1998
The Board of Directors
AvTel Communications, Inc.
501 Bath Street
Santa Barbara, California 93101
Gentlemen:
We have acted as special counsel to AvTel Communications, Inc., a
Delaware corporation (the "Company"), in connection with the proceedings (the
"Company Proceedings") taken and to be taken relating to the registration by the
Company of an aggregate of 1,500,000 shares of common stock (the "Shares") of
the Company, $.01 par value per share, with the Securities and Exchange
Commission (the "SEC") in connection with the AvTel Communications, Inc. 1998
Stock Incentive Plan (the "Plan"). We have also participated in the preparation
and filing with the SEC under the Securities Act of 1933, as amended, of a
registration statement on Form S-8 (the "Registration Statement"), relating to
such Shares.
As special counsel to the Company, we have examined originals or
copies certified to our satisfaction of the Company's Certificate of
Incorporation and Bylaws, resolutions of the Board of Directors, and such other
Company records, instruments, certificates and documents and such questions of
law as we considered necessary or appropriate to enable us to express this
opinion. As to certain facts material to our opinion, we have relied, to the
extent we deem such reliance proper, upon certificates of public officials and
officers of the Company. In rendering this opinion, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to authentic original documents of photostatic
copies.
Based upon and subject to the foregoing and to the assumptions,
limitations and conditions set forth herein, we are of the opinion that, upon
completion of the Company Proceedings, the Shares will have been duly authorized
for issuance, and when the Shares are issued and delivered in accordance with
the Company Proceedings and the Plan, the Shares will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
SEED, MACKALL & COLE LLP
/s/ Seed, Mackall & Cole LLP
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Exhibit 23.1
Independent Auditors' Consent
Board of Directors
AvTel Communications, Inc.
We consent to the incorporation by reference herein of our report on the
consolidated balance sheets of AvTel Communications, Inc. and subsidiaries as of
December 31, 1997 and 1996, and the related consolidated statements of
operations, stockholders' equity, and cash flows and related schedule, for each
of the years in the three-year period ended December 31, 1997, which report
appears in the annual report on Form 10-K of AvTel Communications, Inc. for the
fiscal year ended December 31, 1997.
/s/ KPMG PEAT MARWICK LLP
Dallas, Texas
September 28, 1998
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