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As filed with the Securities and Exchange Commission on September 10, 1999
Registration 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
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MGC COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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Nevada 88-0360042
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3301 N. BUFFALO DR.
LAS VEGAS, NEVADA 89129
(Address, including zip code,
of registrant's principal executive offices)
MGC COMMUNICATIONS, INC. STOCK OPTION PLAN
(Full title of the plan)
KENT F. HEYMAN, ESQ.
3301 N. BUFFALO DRIVE
LAS VEGAS, NEVADA 89129
(702) 310-1000
(Name, address, including zip code, and telephone number
including area code, of agent for service)
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Copies to:
ROBERT B. GOLDBERG, ESQ.
ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P.C.
SUITE 400
3490 PIEDMONT ROAD, N.E.
ATLANTA, GEORGIA 30305
(404) 233-2800
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Amount Maximum Maximum Amount of
Title of Securities to be Offering Price Aggregate Registration
to be Registered Registered (1) Per Share (2) Offering Price (3) Fee
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value per share 2,240,000 $ 21.625 $ 48,440,000 $ 13,466.32
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(1) 2,392,740 shares under this Plan were previously registered on Form
S-8, filed July 30, 1998, Commission file no. 333-60141.
(2) The price is estimated in accordance with Rule 457(h)(1) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee and is equal to $21.625, the average
of the high and low sales prices of the Common Stock as reported on the
NASDAQ Stock Market on September 2, 1999.
(3) Price for the additional 2,240,000 shares registered hereby is
calculated by multiplying the proposed maximum aggregate offering price
per share by the amount to be registered.
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TABLE OF CONTENTS
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<S> <C> <C>
Item 1: Plan Information *
Item 2: Registrant Information and Employee Plan Annual Information *
Item 3: Incorporation of Documents by Reference 3
Item 4: Description of Securities 3
Item 5: Interests of Named Experts and Counsel 3
Item 6: Indemnification of Directors and Officers 3
Item 7: Exemption From Registration Claimed 4
Item 8: Exhibits 4
Item 9: Undertakings 4
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* Separately given to participants. Pursuant to the rules for filing a
Registration Statement on Form S-8, such information is contained in a
document which does not constitute a part of this Registration Statement
but which shall, together with the documents incorporated by reference in
this Registration Statement pursuant to Item 3 of Part II hereof,
constitute a prospectus under Section 10(a) of the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1: PLAN INFORMATION
Omitted.
ITEM 2: REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Omitted.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by MGC Communications, Inc. (the
"Company") with the Commission are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31,1999 and June 30, 1999.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated April 21, 1998, and
in that certain Registration Statement on Form S-3 (No.
333-79863) registering shares of the Company's Common Stock
under the Securities Act of 1933, as amended, filed with the
Commission.
In addition to the foregoing, 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, prior to the filing of a post-effective amendment
indicating that all of the securities offered hereunder 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 part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed document that is
also incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby has been passed on for
the Company by Ellis, Funk, Goldberg, Labovitz & Dokson, P.C., Atlanta, Georgia.
Certain shareholders of Ellis, Funk, Goldberg, Labovitz & Dokson, P.C. own
21,600 shares of Common Stock of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Amended Articles of Incorporation provide that directors
of the Company will not be personally liable for monetary damages to the Company
for certain breaches of their fiduciary duty as directors to the fullest extent
allowable by Nevada law. Under current Nevada law, directors would remain liable
for: (i) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law, and (ii) approval of certain illegal dividends or
redemptions. In appropriate circumstances, equitable remedies or nonmonetary
relief, such as an injunction, will remain available to a stockholder seeking
redress from any such violation. In addition, the provision applies only to
claims against a director arising out of his role as a director and not in any
other capacity (such as an officer or employee of the Company).
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The Company also has the obligation, pursuant to the Company's By-laws,
to indemnify any director or officer of the Company for all expenses incurred by
them in connection with any legal action brought or threatened against such
person for or on account of any action or omission alleged to have been
committed while acting in the course and scope of the person's duties, if the
person acted in good faith and in a manner which the person reasonably believed
to be in or not opposed to the best interests of the Company, and with respect
to criminal actions, had no reasonable cause to believe the person's conduct was
unlawful, provided that such indemnification is made pursuant to then existing
provisions of Nevada General Corporation Law at the time of any such
indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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4.1 -- MGC Communications, Inc. Stock Option Plan.
(Incorporated by reference to the Registrant's
Registration Statement on Form S-4 (File No.
333-38875) previously filed with the Commission.)
4.2 -- Form of Stock Option Agreement under Stock Option
Plan. (Incorporated by reference to the Registrant's
Registration Statement on Form S-8 (File No.
333-60141) previously filed with the Commission.)
5 -- Opinion of Ellis, Funk, Goldberg, Labovitz & Dokson,
P.C.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of KPMG, LLP.
23.3 -- Consent of Ellis, Funk, Goldberg, Labovitz & Dokson,
P.C. (included in Exhibit 5).
</TABLE>
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;
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;
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provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if 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 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 foregoing provisions, 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 Act 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 Act 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 Las Vegas, State of Nevada on the 8th day of
September, 1999.
MGC COMMUNICATIONS, INC.
By: /s/ Nield J. Montgomery
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Nield J. Montgomery, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated below.
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/s/ Nield J. Montgomery President (principal September 8, 1999
- ------------------------------------- executive officer) and Director
Nield J. Montgomery
/s/ Linda M. Sunbury Senior Vice President September 8, 1999
- ------------------------------------- (principal financial and
Linda M. Sunbury accounting officer)
/s/ Maurice J. Gallagher, Jr. Chairman of the Board September 8, 1999
- ------------------------------------- and Director
Maurice J. Gallagher, Jr.
Director , 1999
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Timothy P. Flynn
/s/ Jack L. Hancock Director September 8, 1999
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Jack L. Hancock
/s/ David Kronfeld Director September 8, 1999
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David Kronfeld
/s/ Thomas Neustaetter Director September 8, 1999
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Thomas Neustaetter
Director , 1999
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Paul J. Salem
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EXHIBIT 5
ELLIS, FUNK, GOLDBERG, LABOVITZ & DOKSON, P. C.
ATTORNEYS AT LAW
ONE SECURITIES CENTRE
SUITE 400
3490 PIEDMONT ROAD
ATLANTA, GEORGIA 30305
404-233-2800
FACSIMILE 404-233-2188
September 7, 1999
MGC Communications, Inc.
3301 N. Buffalo Drive
Las Vegas, NV 89129
Re: MGC Communications, Inc. Registration Statement on Form S-8
Gentlemen:
At your request we have examined the Registration Statement on Form
S-8 filed by MGC Communications, Inc. (the "Company"), a Nevada corporation,
with the Securities and Exchange Commission with respect to the registration
under the Securities Act of 1933, as amended, of an additional 2,240,000 shares
of Common Stock, $.001 par value per share, of the Company (the "Common Stock")
issuable by the Company upon the exercise of options that have been granted or
may be granted under the Company's Stock Option Plan (the "Option Plan").
As your counsel, and in connection with the preparation of the
Registration Statement, we have examined the originals or copies of such
documents, corporate records, certificates of public officials, officers of the
Company and other instruments relating to the authorization and issuance of the
Common Stock as we deemed relevant or necessary for the opinion herein
expressed.
Upon the basis of the foregoing, it is our opinion that the Common
Stock to be issued and sold by the Company under the Option Plan will be, upon
exercise of the options in accordance with the terms of the Option Plan
(including payment by the optionee of the option exercise price) and issuance of
shares by the Company, legally issued, fully-paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name in the "Legal"
section of the Registration Statement, including the Prospectus constituting a
part thereof, and any amendments thereto.
Yours truly,
ELLIS, FUNK, GOLDBERG, LABOVITZ
& DOKSON, P.C.
By: /s/ Robert B. Goldberg
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Robert B. Goldberg
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated March 2, 1999
included in MGC Communications, Inc.'s Form 10-K for the year ended December 31,
1998 and registration statement on Form S-3/A (No. 333-79863) and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Las Vegas, Nevada
September 3, 1999
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[KPMG LETTERHEAD]
2300 West Sahara Avenue
Suite 300, Box 28
Las Vegas, NV 89102
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
MGC Communications, Inc.:
We consent to the incorporation by reference in the Form S-8 Registration
Statement (No. 333-79863) of MGC Communications, Inc., to be filed on or about
September 8, 1999, of our report dated August 18, 1997, with respect to the
statements of operations, stockholders' equity and cash flows of MGC
Communications, Inc. for the year ended December 31, 1996, which report appears
in the December 31, 1998 annual report on Form 10-K of MGC Communications, Inc.
KPMG LLP
Las Vegas, Nevada
September 8, 1999
