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As filed with the Securities and Exchange Commission on December 17, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
__________
PAC-WEST TELECOMM, INC.
(Exact name of registrant as specified in its charter)
California 68-0383568
(State of incorporation) (I.R.S. Employer
Identification No.)
4210 Coronado Avenue
Stockton, California 95204
(209)924-3300
(Address of principal executive offices)
__________
Pac-West Telecomm, Inc. 1999 Stock Incentive Plan
Executive Agreement,
dated September 16, 1998,
between Pac-West Telecomm, Inc. and
Wallace W. Griffin
Executive Agreement,
dated October 30, 1998,
between Pac-West Telecomm, Inc. and
Richard E. Bryson
(Full title of the plans)
__________
Richard E. Bryson
Chief Financial Officer
4210 Coronado Avenue
Stockton, California 95204
(209)924-3300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
Jeffrey S. O'Connor
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
<TABLE>
<CAPTION>
Calculation of Registration Fee
============================================================================================================
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per aggregate offering registration
share (1) price (1) fee (1)
------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 3,150,000 $10.10 $31,818,880 $8,400.18
value $0.001 per share
------------------------------------------------------------------------------------------------------------
</TABLE>
(1) For purposes of computing the registration fee only. The proposed maximum
offering price was calculated with respect to 2,051,750 shares based upon
the average exercise price per share (approximately $2.70 of outstanding
options for such shares to be registered pursuant to Rule 457(h), and with
respect to the remaining 1,098,250 shares, the average of the high and low
prices reported in the Consolidated Reporting System on December 13, 1999
(approximately $23.94), pursuant to Rule 457(c).
================================================================================
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Pac West Telecomm, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated
herein by reference.
(a) The Company's Prospectus filed on November 5, 1999, pursuant to
Rule 424(b) under the Security Act of 1933;
(b) The Company's Quarterly reports on Form 10-Q for the quarters
ended June 30, 1999 and September 30, 1999;
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form S-1 (Reg. No. 333-86607), as
amended, originally filed on September 7, 1999, under the
caption "Description of Capital Stock."
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 which indicates that all securities offered have
been sold or which registers all securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration statement and to be
part thereof from the date of filing such documents. Any statement contained 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 a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such 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.
--------------------------------------
Not applicable.
Item 6. Indemnification of Officers and Directors.
-----------------------------------------
The Company is incorporated under the laws of the State of California.
Section 317 of the General Corporation Law of the State of California
provides that a California corporation may indemnify any person who is, or
is threatened to be made, party to any proceeding (other than an action by
or in the right of the corporation to procure a judgment in its favor) by
reason of the fact that the person is or was an agent of the corporation,
against
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expenses, judgments, fines, settlements, and other amounts actually and
reasonably incurred in connection with the proceeding if that person acted
in good faith and in a manner the person reasonably believed to be in the
best interests of the corporation and, in the case of a criminal
proceeding, had no reasonable cause to believe the conduct of the person
was unlawful. A California corporation has power to indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
the person is or was an agent of the corporation, against expenses actually
and reasonably incurred by that person in connection with the defense or
settlement of the action if the person acted in good faith, in a manner the
person believed to be in the best interests of the corporation and its
shareholders.
Under Article IV of the Company's Amended and Restated Articles of
Incorporation and, as amended, Article VI of the Company's Amended and
Restated By-Laws, as amended, the Company will indemnify each person who
was or is made a party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she, is
or was a director or officer, of the Company or is or was serving at the
request of the Company as a director, employee, fiduciary, or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise including service with respect to employee benefit plans,
whether the basis of such action, suit or proceeding is alleged action in
an official capacity as a director, officer, employee, fiduciary or agent
or in any other capacity while serving as a director, officer, employee,
fiduciary or agent, to the fullest extent that the Company is empowered to
do so by the General Corporation Law of the State of California, as the
same exists or may hereafter be amended against all expense, liability and
loss including attorneys' fees actually and reasonably incurred by such
person in connection with such action, suit or proceeding. The Company may,
by action of its board of directors, provide indemnification to the
Company's employees and agents with the same scope and effect as the
foregoing indemnification of directors and officers. Such right of
indemnification will be a contract right and will not be exclusive of any
other right which such directors, officers or representatives may have or
hereafter acquire under statute, the Company's Amended and Restated
Articles of Incorporation, as amended, the Company's Amended and Restated
By-Laws, as amended, agreement, vote of stockholders or disinterested
directors or otherwise.
In addition, Section 204 of the General Corporation Law of the State
of California allows a corporation to eliminate the personal liability of a
director of a corporation to the corporation or to any of its stockholders
for monetary damages for a breach of fiduciary duty as a director,
provided, however, that:
(a) such a provision may not eliminate or limit the liability of
directors:
(1) for acts or omissions that involve intentional misconduct or
a knowing and culpable violation of law;
2
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(2) for acts or omissions that a director believes to be
contrary to the best interests of the corporation or its
shareholders or that involve the absence of good faith on
the part of the director;
(3) for any transaction from which a director derived an
improper personal benefit;
(4) for acts or omissions that show a reckless disregard for the
director's duty to the corporation or its shareholders in
circumstances in which the director was aware, or should
have been aware, in the ordinary course of performing a
director's duties, of a risk of serious injury to the
corporation or its shareholders;
(5) for acts or omissions that constitute an unexecuted pattern
of inattention that amounts to an abdication of the
director's duty to the corporation or its shareholders;
(6) under Section 310, or (7) under Section 316.
(b) no such provision will eliminate or limit the liability of a
director for any act or omission occurring prior to the date when
the provision becomes effective; and
(c) no such provision will eliminate or limit the liability of an
officer for any act or omission as an officer, notwithstanding
that the officer is also a director or that his or her actions,
if negligent or improper,have been ratified by the directors.
Article IV of the Company's Amended and Restated Articles of
Incorporation, as amended, includes a provision that eliminates directors'
personal liability to the fullest extent permitted under the General Corporation
Law of the State of California.
The Company maintains a policy of directors and officers liability
insurance covering certain liabilities incurred by our directors and officers in
connection with the performance of their duties.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
3
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Item 8. Exhibits.
--------
The exhibits to this registration statement are listed in the Index
of Exhibits below.
Item 9. Undertakings.
------------
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 (provided, however, that (i) and (ii) do not apply to information
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this 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 in the initial
bona fide offering thereof; and (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.
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.
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 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 its public policy as expressed in the Securities Act of
1993 and will be governed by the final adjudication of such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, and in the capacity indicated, in the City of Stockton, State of
California, on the 17th day of December, 1999.
PAC-WEST TELECOMM, INC.
By: /s/ Wallace W. Griffin
----------------------------------
Name: Wallace W. Griffin
Title: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Wallace W. Griffin and Richard E. Bryson, and
each of them, 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, to sign any or 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, granting unto said attorneys-in-fact
and agents, and each of them 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 might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their 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 and power of attorney have been signed on December
17, 1999, by the following persons in the capacities indicated:
Signature Capacity
--------- --------
/s/ Wallace W. Griffin President and Chief Executive Officer
---------------------------
Wallace W. Griffin (principal executive officer)
/s/ Richard E. Bryson Chief Financial Officer
---------------------------
Richard E. Bryson (principal financial officer)
/s/ Dennis V. Meyer Vice President-Finance and Treasurer
---------------------------
Dennis V. Meyer (principal accounting officer)
5
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/s/ Jerry L. Johnson Chairman of the Board of Directors
- --------------------------------
Jerry L. Johnson
/s/ John K. LaRue Directors and Executive Vice President-
- --------------------------------
John K. LaRue Technology and Network Operations
/s/ David G. Chandler Director
- --------------------------------
David G. Chandler
/s/ Mark J. Denino Director
- --------------------------------
Mark J. Denino
/s/ Mark S. Fowler Director
- --------------------------------
Mark S. Fowler
/s/ Samuel A. Plum Director
- --------------------------------
Samuel A. Plum
/s/ Dr. Jagdish N. Sheth Director
- --------------------------------
Dr. Jagdish N. Sheth
/s/ Bruce A. Westphal Director
- --------------------------------
Bruce A. Westphal
6
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description of Exhibits
- ------- -----------------------
4.1 Pac-West Telecomm, Inc. 1999 Stock Incentive Plan (incorporated
by reference to Exhibit 10.6(a) to the Company's Registration
Statement on Form S-4 (Reg. No. 333-76779)).
4.2 Pac-West Telecomm, Inc. 1999 Stock Incentive Plan form of Notice
of Stock Option Award and Stock Option Award Agreement between
the Company and its grantees as designated (incorporated by
reference to Exhibit 10.6(b) to the Company's Registration
Statement on Form S-4 (Reg. No. 333-76779)).
4.3 Executive Agreement, dated September 16, 1998, between the
Company and Wallace W. Griffin (incorporated by reference to
Exhibit 10.8 to the Company's Registration Statement on Form S-4
(Reg. No. 333-76779)).
4.4 Executive Agreement, dated October 30, 1998, between the Company
and Richard E. Bryson (incorporated by reference to Exhibit 10.9
to the Company's Registration Statement on Form S-4 (Reg. No.
333-76779)).
4.5 Amended and Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Registration Statement on Form S-4 (Reg. No. 333-76779)).
4.6 Certificate of Amendment of Articles of Incorporation of the
Company (incorporated by reference to Exhibit 3.1(b) to the
Company's Registration Statement on Form S-1 (Reg. No. 333-
86607)).
4.7 Bylaws of the Company (incorporated by reference to Exhibit 3.2
to the Company's Registration Statement on Form S-1 (Reg. No.
333-86607)).
5.1 Opinion of Neumiller & Beardslee with respect to the validity of
the securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Neumiller & Beardslee (included in Exhibit 5.1).
24.1 Power of Attorney (included on page 5 hereof).
<PAGE>
ROBERT C. MORRISON
December 17, 1999
Pac-West Telecomm, Inc.
4210 Coronado Avenue
Stockton, California 95204
Re: Registration Statement on Form S-8 for Pac-West Telecomm, Inc.
--------------------------------------------------------------
Ladies/Gentlemen:
We have acted as counsel to Pac-West Telecomm, Inc., a California
corporation (the "Company"), from time to time in connection with certain
general corporate matters. This letter is being issued in connection with
the registration by the Company of up to 3,150,000 shares of the Company's
Common Stock, par value $.001 per share (the "Shares"), pursuant to a
Registration Statement on Form S-8 filed on or about the date hereof, with
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act") (such Registration
Statement, as amended or supplemented, is hereinafter referred to as the
"Registration Statement"). The Shares are to be issued by the Company from
time to time in connection with the exercise of stock options granted under
the Pac-West Telecomm, Inc. 1999 Stock Incentive Plan, an Executive
Agreement dated September 16, 1998 between the Company and Wallace W.
Griffin, and an Executive Agreement dated October 30, 1998 between the
Company and Richard E. Bryson (the "Plans").
In that connection, we have examined originals, or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate
records and other instruments as we have deemed necessary for the purposes
of this letter, including (i) the Amended and Restated Articles of
Incorporation and Certificates of Amendment thereto and By-Laws of the
Company, (ii) minutes and records of the corporate proceedings of the
Company with respect to the Shares, (iii) the Registration Statement and
exhibits thereto, (iv) the Plan; and (v) such other documents and
instruments as we have deemed necessary for the expression of the opinions
contained herein.
For purposes of this letter, we have assumed 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 the
originals of all documents
<PAGE>
Pac-West Telecomm, Inc.
December 17, 1999
Page 2
submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
letter is rendered, the authority of such persons signing on behalf of the
parties thereto and the due authorization, execution and delivery of all
documents by the parties thereto other than the Company. In preparing this
letter we have relied without independent verification upon: (i)
information contained in certificates obtained from governmental
authorities; (ii) factual information provided to us by the Company or its
representatives including but not limited to all factual information set
forth or incorporated by reference in the Registration Statement and
Exhibits; and (iii) factual information we have obtained from such other
sources as we have deemed reasonable. We have assumed that there has been
no relevant change or development between the dates as of which the
information cited in the preceding sentence was given and the date of this
letter and that the information upon which we have relied is accurate and
does not omit disclosures necessary to prevent such information from being
misleading. We have assumed that the options pursuant to which any Shares
are to be issued are, and at the time of issuance of any related Shares
will be, validly issued and outstanding and we have assumed that the
Company has complied with or will timely comply with all applicable Blue
Sky laws prior to issuance of the Shares.
Our advice on every legal issue addressed in this letter is based
exclusively on the Corporate Law of the State of California and the federal
law of the United States, and represents our opinion as to how that issue
would be resolved were it to be considered by the highest court in the
jurisdiction which enacted such law.
Based upon and subject to the foregoing qualifications, assumptions and
limitations and the further limitations set forth below, we are of the
opinion that the issuance of the Shares has been duly authorized and that
(i) upon effectiveness under the Act of the Registration Statement, and
(ii) when appropriate certificates representing the Shares are duly
countersigned by the Company's transfer agent/registrar and delivered
against payment of the agreed consideration therefor all in accordance with
the terms and conditions of the Plan and the applicable option agreement
entered into in connection therewith, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this letter with the Commission as
Exhibit 5.1 to the Registration Statement.
This letter is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein.
This letter speaks as of the
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Pac-West Telecomm, Inc.
December 17, 1999
Page 3
time of its delivery on the date it bears. We do not assume any obligation
to provide you with any subsequent opinion or advice by reason of any fact
about which we did not have knowledge at that time, by reason of any change
subsequent to that time in any law other governmental requirement or
interpretation thereof covered by any of our opinions or advice, or for any
other reason.
This is furnished to you in connection with the filing of the Registration
Statement and is not to be used, circulated, quoted or otherwise relied
upon for any other purpose.
Very truly yours,
NEUMILLER & BEARDSLEE
A Professional Corporation
By: /s/ Robert C. Morrison
----------------------------------
ROBERT C. MORRISON, Principal
RCM/RCM
<PAGE>
[LOGO OF ARTHUR ANDERSEN]
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated February
10, 1999 except with respect to Notes 12 and 13 for which the dates are March
19, 1999 and October 7, 1999, respectively, included in Pac-West Telecomm,
Inc.'s Form S-1 Registration Statement File No. 333-86607.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Francisco, California
December 16, 1999
