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As filed with the Securities and Exchange Commission on December 22, 2000
Registration No. 333-
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UNITED STATES
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.)
1776 W. March Lane, Suite 250
Stockton, California 95207
(209) 926-3300
(Address of principal executive offices)
_________________
Pac-West Telecomm, Inc.
1999 Stock Incentive Plan
Pac-West Telecomm, Inc.
2000 Employee Stock
Purchase Plan
Pac-West Telecomm, Inc.
2000 Napa Valley Non-Qualified
Stock Incentive Plan
Pac-West Telecomm, Inc.
1998 Griffin Non-Qualified
Stock Incentive Plan
Pac-West Telecomm, Inc.
1998 Bryson Non-Qualified
Stock Incentive Plan
(Full title of the plans)
__________________
Richard E. Bryson
Chief Financial Officer
1776 W. March Lane, Suite 250
Stockton, California 95207
(209) 926-3300
(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
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<CAPTION>
Calculation of Registration Fee
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Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) price per share (2) aggregate offering registration
price (2) fee (2)
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<S> <C> <C> <C> <C>
Common Stock, par
value $0.01 per share 3,225,500 $1.97 6,352,069 $1,676.95
===========================================================================================================================
</TABLE>
(1) The amount of securities to be registered shall be allocated as follows: (i)
1,601,750 shares of common stock to the Pac-West Telecomm, Inc. 1999 Stock
Incentive Plan; (ii) 1,000,000 shares of common stock to the Pac-West
Telecomm, Inc. 2000 Employee Stock Purchase Plan; (iii) 55,000 shares of
common stock to the Pac-West Telecomm, Inc. 2000 Napa Valley Non-Qualified
Stock Incentive Plan; (iv) 350,000 shares of common stock to the Pac-West
Telecomm, Inc. 1998 Griffin Non-Qualified Stock Incentive Plan; and (v)
218,750 shares of common stock of Pac-West Telecomm, Inc. 1998 Bryson Non-
Qualified Stock Incentive Plan. In addition, in the case of the Pac-West
Telecomm, Inc. 2000 Employee Stock Purchase Plan, pursuant to Rule 416(c)
under the Securities Act of 1933, as amended, this registration statements
also covers an indeterminate amount of interests to be offered or sold
pursuant to such plan and, in the case of all of the plans covered by this
registration statement, the registration statement also covers an
indeterminate number of additional shares, which may be offered and issued
in accordance with the terms of such plans to prevent dilution from stock
splits, stock dividends or similar transactions.
(2) For purposes of computing the registration fee only. The proposed maximum
offering price was calculated with respect to 623,750 shares based upon the
average exercise price per share (approximately $1.32 ) of outstanding
options for such shares to be registered pursuant to Rule 457(b), and with
respect the remaining 2,601,750 shares, the average of the high and low
prices reported in the Consolidated Reporting System on December 20, 2000
(approximately $2.125), pursuant to Rule 457(c).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by Pac-West Telecomm, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated herein
by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1999;
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000;
(3) The description of the Company's Common Stock contained in the
Registration Statement on Forms S-1, 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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 4. Indemnification of Officers and Directors.
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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
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that the person is or was an agent of the corporation, against 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:
(1) such a provision may not eliminate or limit the liability of
directors:
(a) for acts or omissions that involve intentional misconduct or
a knowing and culpable violation of law;
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(b) 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;
(c) for any transaction from which a director derived an
improper personal benefit;
(d) or 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;
(e) 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;
(f) under Section 310, or
(g) under Section 316.
(2) 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
(3) 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 5. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 6. Exhibits.
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The exhibits to this registration statement are listed in the Index of
Exhibits below.
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Item 7. Undertakings.
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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.
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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 22nd day of December, 2000.
PAC WEST TELECOMM, INC.
By: /s/ Wallace W. Griffin
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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 22,
2000, by the following persons in the capacities indicated:
Signature Capacity
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/s/ Wallace W. Griffin President and Chief Executive Officer
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Wallace W. Griffin (principal executive officer)
/s/ Richard E. Bryson Chief Financial Officer
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Richard E. Bryson (principal financial officer)
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/s/ Dennis V. Meyer Vice President-Finance and Treasurer
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Dennis V. Meyer (principal accounting officer)
/s/ Jerry L. Johnson Chairman of the Board of Directors
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Jerry L. Johnson
/s/ A. Gary Ames Director
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A. Gary Ames
/s/ David G. Chandler Director
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David G. Chandler
/s/ Mark S. Fowler Director
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Mark S. Fowler
/s/ John K. LaRue Director
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John K. LaRue
/s/ Samuel A. Plum Director
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Samuel A. Plum
/s/ Dr. Jagdish N. Sheth Director
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Dr. Jagdish N. Sheth
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INDEX TO EXHIBITS
Exhibit
No. Description of Exhibits
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4.1 Pac-West Telecomm, Inc. 1999 Stock Incentive Plan, as amended and
restated (incorporated by reference to Exhibit 10.6(a) to the
Company's Form 10-Q for the period ending September 30, 2000
(File No. 000-27743)).
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 Pac-West Telecomm, Inc. 2000 Employee Stock Purchase Plan
(incorporated by reference to Exhibit 10.47 to the Company's
Form 10-Q for the period ending September 30, 2000 (File No.
000-27743)).
4.4 Pac-West Telecomm, Inc. 2000 Napa Valley Non-Qualified Stock
Incentive Plan (incorporated by reference to Exhibit 10.46 to the
Company's Form 10-Q for the period ending September 30, 2000
(File No. 000-27743)).
4.5 Pac-West Telecomm, Inc. 1998 Griffin Non-Qualified Stock
Incentive Plan (incorporated by reference to Exhibit 10.44 to the
Company's Form 10-Q for the period ending September 30, 2000
(File No. 000-27743)).
4.6 Pac-West Telecomm, Inc. 1998 Bryson Non-Qualified Stock Incentive
Plan (incorporated by reference to Exhibit 10.45 to the Company's
Form 10-Q for the period ending September 30, 2000 (File No.
000-27743)).
4.7 Amended and Restated Articles of Incorporation of the Company.
4.8 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).
