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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MICROTEL INTERNATIONAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
2040 Fortune Drive
San Jose, California 95131
(address of principal executive
office including zip code)
Delaware 77-022621
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Microtel International, Inc.
Employee Stock and Stock Option Plan
(full title of plan)
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Mr. Daniel Dror
President
2040 Fortune Drive, Suite 102
San Jose, California
(408) 435-8520
(Name, address and telephone number of agent for service)
With Copies To:
Felice F. Mischel, Esq.
Gregory Sichenzia, Esq.
Schneck Weltman Hashmall & Mischel LLP
1285 Avenue of the Americas
New York, New York 10019
(212) 956-1500
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CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Each Class Maximum Maximum Proposed
of Securities Amount of Offering Aggregate Amount of
To Be Shares To Be Price Per Offering Registration
Registered Registered(1) Security(1) Price(1) Fee
- ------------------ ------------- ----------- ---------- ------------
Common Stock 520,000(1) $3.25 $1,690,000 $582.76
(par value $.0033)
(1) Estimated pursuant to Rule 457 (c) and (h) based on the average of the
high and low prices of the Common Stock as reported on the Nasdaq SmallCap Stock
Market on September 17, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 1. Plan Information.
(a) 1. The Name of the Plan is the Microtel International, Inc. Employee
Stock and Stock Option Plan.
2. The purpose of the Plan is to attract and retain highly qualified
employees and consultants to the Company
3. The Plan is not subject to the provisions of ERISA
4. Participants may receive additional information about the Plan from
Barry Reifler, Chief Financial Officer, Microtel International, Inc., 2040
Fortune Drive, San Jose California 95131. Telephone number (408) 435-8520.
(b) 1. The securities offered pursuant to the Plan consist of Common Stock,
par value $.0033 per share and Options of varying expirations to purchase Common
Stock. There are a total of 520,000 (on a one- for-five post-split basis
effective on August 29, 1996) Options or shares of Common Stock available for
grant under the Plan.
(c). Employees and consultants may participate in this Plan at the
discretion of the Board of Directors.
(d)-(h) Not Applicable
Item 2. Registrant Information and Employee Plan Annual Information.
Not Applicable
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities Exchange Commission (the
"Commission") are incorporated in this Registration Statement by reference:
(1) Form 10-K of Microtel International, Inc. for the period ended December
31, 1995, Commission File number 1-10346.
(2) Form 10-Q of Microtel International, Inc. for the period ended March
31, 1996, Commission File number 1-10346.
(3) Form 10-Q of Microtel International, Inc. for the period ended June 30,
1996, Commission File number 1-10346.
All documents subsequently filed by the Company pursuant to Sections 12(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 deregisters all securities then remaining unsold, shall be
deemed
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to be incorporated by reference in this Registration Statement and to be 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.
The validity of the securities registered hereby is being passed upon for
the Company by Schneck Weltman Hashmall & Mischel LLP, 1285 Avenue of the
Americas, New York, New York 10019.
Item 6. Indemnification of Directors and Officers.
Article 7 of the Company's Amended and Restated Certificate of
Incorporation provides to the extent permitted by Delaware Corporate law, as the
same may be amended, a director of the Corporation shall not be liable to the
Corporation or its stockholder for monetary damages for breach of fiduciary duty
of a director.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Microtel International, Inc. Employee Stock and Stock Option Plan.
5.1 Opinion of Counsel.
23.1 Consent of Independent BDO Seidman, LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page).
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability the under Securities Act of 1993, 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 this is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
2. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective
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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;
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 2 (a)(1)(i) and 2 (a)(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 Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference herein.
(b) 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 herein, and the
offering of such securities that at that time shall be deemed to be the initial
bona fide offering thereof.
(c) 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.
3. 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, 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 New York, State of New York, on September 23, 1996.
MICROTEL INTERNATIONAL, INC.
By: /s/ DANIEL DROR By: /s/ BARRY E. REIFLER
Daniel Dror Barry E. Reifler
Chairman of the Board and Chief Financial Officer
Chief Executive Officer (Principal Financial or Accounting Officer)
POWER OF ATTORNEY
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel Dror and Barry Reifler, jointly
and severally, as his true and lawful attorney-in-fact and agent, each with
full power of substitution and resubstitution for him and in his name, place and
stead, in any and all capacities, to sign any and 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, hereby ratifying and confirming all that
each said attorney-in-fact or agent or substitute lawfully does or causes to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement on Form S-8 has been signed below by the following
persons in the capacities and on the date indicated.
Signature Capacity in Which Signed Date
- --------- ------------------------ ----
/s/ DANIEL DROR Chairman of the Board of Directors September 23, 1996
Daniel Dror
/s/ HENRY MOURAD President and Director September 23, 1996
Henry A. Mourad of the Company
____________________ Director
William Lewisham
/s/ BARRY E. REIFLER Chief Financial Officer September 23, 1996
Barry E. Reifler and Secretary (Principal Accounting
and Financial Officer)
/s/ JACK TALAN Director September 23, 1996
Jack Talan
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EXHIBIT 4.1
MICROTEL INTERNATIONAL, INC.
EMPLOYEE STOCK AND STOCK OPTION PLAN
1. PURPOSES
The purpose of the Microtel International, Inc. Employee Stock and Stock
Option Plan (the "Plan") is to aid Microtel International, Inc. and its
"subsidiaries" (as defined under the federal securities laws) (together the
"Company") in attracting and retaining highly capable employees and consultants
and to enable selected key employees and consultants or other representatives of
the Company to acquire or increase ownership interest in the Company on a basis
that will encourage them to perform at increasing levels of effectiveness and
use their best efforts to promote the growth and profitability of the Company.
Consistent with these objectives, this Plan authorizes the granting to selected
key employees and consultants of options to acquire shares of the Company's
Common Stock, par value $.0033 per share ("Common Stock") or the granting of
Common Stock, pursuant to the terms and conditions hereinafter set forth.
Securities granted hereunder may include (i) "Non-Qualified Options" (which
term, as used herein, shall mean options that are not intended to be "incentive
stock options" within the meaning of Section 422 of the Internal Revenue Code
(the "Code")), and (ii) restricted and unrestricted stock grants. Options or
grants of Common Stock for no more than an aggregate of 2,600,000 shares of
Common Stock may be granted under this Plan.
2. EFFECTIVE DATE
This Plan shall become effective on July 1, 1994, (the "Effective Date").
3. ADMINISTRATION
(a) This Plan shall be administered by the Board of Directors or a
committee (the "Committee") of the Board of Directors of the Company (the "Board
of Directors"), who are selected by the Board of Directors. All Committee
members shall serve, and may be removed, at the pleasure of the Board of
Directors.
(b) A majority of the members of the Committee (but not less than two)
shall constitute a quorum, and any action taken by a majority of such members
present at any meeting at which a quorum is present, or acts approved in writing
by all such members, shall be the acts of the Committee.
(c) Subject to the other provisions of this Plan, the Board or the
Committee shall have full authority to decide the date or dates on which shares
of Common Stock or options (the "Options") to acquire shares of Common Stock
will be granted under this Plan (the "Date of Grant"), to select the key
employees to whom the Common Stock or the Options will be granted and to
determine the number of shares of Common Stock to be granted or covered by each
Option, and with respect to Options granted, the price at which such shares may
be purchased upon the exercise of such option (the "Option Exercise Price") and
other terms and conditions of such purchase. The granting of shares of Common
Stock to any employee or consultant may include terms and provisions, including
but not limited to those which have the effect of a guaranty of the amount of
the proceeds from any subsequent sale of the Common Stock, or otherwise. In
making those determinations, the Board or the Committee shall solicit the
recommendations of the President and Chairman of the Board of the Company and
may take into account the key employee's present and potential contributions to
the Company's business and any other factors which the Committee may deem
relevant. Provided,
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however, that any such determinations shall be made subject to and in compliance
with, the rules and regulations promulgated by the Securities and Exchange
Commission and any exchange on which the Company's securities are then traded.
Subject to the other provisions of this Plan, the Board or the Committee shall
also have full authority to interpret this Plan and any stock option agreements
evidencing Options granted hereunder, to issue rules for administering this
Plan, to change, alter, amend or rescind such rules, and to make all other
determinations necessary or appropriate for the administration of this Plan. All
determinations, interpretations and constructions made by the Committee pursuant
to this Section 3 shall be final and conclusive. No member of the Board of
Directors or the Committee shall be liable for any action, determination or
omission taken or made in good faith with respect to this Plan or any Option
granted hereunder.
4. ELIGIBILITY
Subject to the provisions of Section 7 below, key employees of the Company
(including officers and directors who are employees) and consultants and other
representatives of the Company shall be eligible to receive Options or grants of
Common Stock under this Plan.
5. OPTION SHARES
(a) The shares subject to Options granted under this Plan shall be shares
of Common Stock. If an Option expires, terminates or is otherwise surrendered,
in whole or in part, the shares allocable to the unexercised portion of such
Option shall again become available for grants of Options hereunder. As
determined from time to time by the Board of Directors, the shares available
under this Plan for grants of Options may consist either in whole or in part of
authorized but unissued shares of Common Stock or shares of Common Stock which
have been reacquired by the Company or a subsidiary following original issuance.
(b) The aggregate number of shares of Common Stock as to which Options may
be granted hereunder, as provided in Subsection 5(a) above, the number of shares
covered by each outstanding Option and the Option Exercise Price shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or other subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend; provided, however, that any fractional shares resulting from any such
adjustment shall be eliminated.
6. TERMS AND CONDITIONS OF GRANTS
The Board or the Committee may, in its discretion, grant to a key employee
or consultant only Options, only shares of Common Stock, or a combination of
both. Each Option granted pursuant to this Plan shall be evidenced by a stock
option agreement between the Company and the recipient to whom the option is
granted (the "Optionee") in such form or forms as the Committee, from time to
time, shall prescribe, which agreements need not be identical to each other but
shall comply with and be subject to the following terms and conditions:
(a) Option Exercise Price. The Option Exercise Price at which each share of
Common Stock may be purchased pursuant to an Option shall be determined by the
Board or the Committee. Anything contained in this Section 6(a) to the contrary
notwithstanding, in the event that the number of shares of Common Stock subject
to any Option is adjusted pursuant to Section 5(b) above, a corresponding
adjustment shall be made in the Option Exercise Price per share.
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(b) Duration of Options. The duration of each Option granted hereunder
shall be determined by the Board or the Committee, except that each Option
granted hereunder shall expire and all rights to purchase shares of Common Stock
pursuant thereto shall cease one day before the tenth anniversary of the Date of
Grant of such Option (in each case, the "Expiration Date").
(c) Vesting of Grants or Options. The vesting of each Option or share of
Common Stock granted hereunder shall be determined by the Board or the
Committee. Only such vested portions of Options may be exercised. Only such
vested portions of grants of Common Stock may be disposed of.
(d) Merger, Consolidation, etc. In the event the Company shall, pursuant to
action by its Board of Directors, at any time propose to merge into, consolidate
with, or sell or otherwise transfer all or substantially all of its assets to,
another corporation and provision is not made pursuant to the terms of such
transaction for (i) the assumption by the surviving, resulting from acquiring
corporation of outstanding Options, (ii) the substitution therefor of new
options granting reasonably similar rights and privileges, or (iii) the payment
of cash or other consideration in respect thereof, the Board or the Committee
shall cause written notice of the proposed transaction to be given to each
Optionee not less than 30 days prior to the announced anticipated effective date
of the proposed transaction, and the Board or the Committee shall specify in
such notice a date, which date shall be not less than 10 days prior to the
announced anticipated effective date of the proposed transaction.
(e) Exercise of Options. A person entitled to exercise an Option, or any
portion thereof, may exercise it (or such vested portion thereof) in whole at
any time, or in part from time to time, by delivering to the Company at its
principal office, directed to the attention of its Chairman, President or such
other duly elected officer as shall be designated in writing by the Board or the
Committee to the Optionee, written notice specifying the number of shares of
Common Stock with respect to which the Option is being exercised, together with
payment in full of the Option Exercise Price for such shares. Such payment shall
be made in cash or by certified check or bank draft to the order of the Company;
provided, however, that the Board or the Committee may, in its sole discretion,
authorize such payment, in whole or in part, in any other form, including
payment by personal check or by the exchange of shares of Common Stock of the
Company previously acquired by the person entitled to exercise the Option and
having a fair market value on the date of exercise equal to the price for which
the shares of Common Stock may be purchase pursuant to the Option, or pursuant
to a cashless exercise of the option.
(f) Transferability. Options shall not be transferable other than by will
or the laws of descent and distribution and an Option may not be exercised by
anyone other than the Optionee; except that if the Optionee dies or becomes
incapacitated, the Option may be exercised by his or her estate, legal
representative or beneficiary, as the case may be, subject to all other terms
and conditions contained in this Plan.
(g) Termination of Employment or Services. The following rules shall apply
in the event of an Optionee's termination of employment or services with or for
the Company; if not otherwise specified in an employment, consulting or similar
services agreement with the Company:
(i) In the event of an Optionee's termination of employment with or
services to the Company either (1) by the Company for Cause (as defined in any
relevant agreement to which Optionee is a party) or for fraud, dishonesty,
habitual drunkenness or drug use, or willful disregard of assigned duties by
such Optionee in the absence of such an agreement, or (2) by the Optionee
voluntarily otherwise than at the end of an employment or service term under a
relevant agreement to which Optionee is a party and without the written consent
of the Company, then the Option shall immediately terminate.
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(ii) In the event of the Optionee's termination of employment with or
service to the Company for reason of retirement or under circumstances other
than those specified in subsection (g)(i) immediately above, and for reasons
other than death or disability, the Option shall terminate three months after
the date of such termination of employment or service or on the Expiration Date,
whichever shall first occur; provided, however, that if the Optionee dies within
such 3-month period, the time period set forth in subsection (g) (iii)
immediately below shall apply.
(iii) In the event of the death or disability, of the Optionee while
the Optionee is employed by or providing services to the Company, the Option
shall terminate on the first anniversary of the Optionee's date of termination
of employment or service, or on the Expiration Date, whichever shall first
occur.
(h) No Rights as Stockholder or to Continued Employment. No Optionee shall
have any rights as a stockholder of the Company with respect to any shares
covered by an Option prior to the date of exercise of an option or granting of
shares of Common Stock, and neither this Plan nor any Option granted hereunder
shall confer upon an Optionee any right to continuance of employment by the
Company or interferes in any way with the right of the Company to terminate the
employment of such Optionee.
7. ISSUANCE OF SHARES; RESTRICTIONS
(a) Subject to the conditions and restrictions provided in this Section 7,
the Company shall, within 20 business days after the Option has been duly
exercised in whole or in part, deliver to the person who exercised the Option
one or more certificates, registered in the name of such person, for the number
of shares of Common Stock with respect to which the Option has been exercised.
The Company may legend any stock certificate issued upon exercise of an Option
or upon grant of shares of Common Stock to reflect any restrictions provided for
in this Plan.
(b) Unless the shares subject the grant or to Options granted under the
Plan have been registered under the Securities Act of 1933, as amended (the
"Act") (and, in the case of any Optionee or grantee who may be deemed an
"affiliate" of the Company as such term is defined in Rule 405 under the Act,
such shares have been registered under the Act for resale by the Optionee or
grantee), or the Company has determined that an exemption from registration
under the Act is available, the Company may require prior to and as a condition
of the issuance of any shares of Common Stock, that the person exercising an
Option or receiving a grant of Common Stock hereunder (i) sign such agreements
with respect thereto as the Company may require, and (ii) furnish the Company
with a written representation in a form prescribed by the Board or Committee to
the effect that such person is acquiring such shares solely with a view to
investment for his or her own account and not with a view to the resale or
distribution of all or any part thereof, and that such person will not dispose
of any of such shares otherwise than in accordance with the provisions of Rule
144 under the Act unless and until either the distribution of such shares is
registered under the Act or the Company is satisfied that an exemption from such
registration is available.
(c) Anything contained herein to the contrary notwithstanding, the Company
shall not be obliged to sell or issue any shares of Common Stock pursuant to the
grant of shares of Common Stock or the exercise of an Option granted hereunder
unless and until the Company is satisfied that such sale or issuance complies
with all applicable provisions of the Act and all other laws or regulations by
which the Company is bound or to which the Company or such shares are subject.
8. SUBSTITUTE OPTIONS
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Anything contained herein to the contrary notwithstanding, Options may, at
the discretion of the Board of Directors, be granted under this Plan in
substitution for options to purchase shares of capital stock of another
corporation which is merged into, consolidated with, or all or a substantial
portion of the property or stock of which is acquired by, the Company or a
subsidiary. The terms, provisions and benefits to Optionees of the Options of
the other corporation on the date of substitution, except that such substitute
Options shall provide for the purchase of shares of Common Stock of the Company
instead of shares of such other corporation.
9. TERM OF THE PLAN
Unless the plan has been sooner terminated pursuant to Section 10 below,
this Plan shall terminate on, and no Options or shares of Common Stock shall be
granted after, the tenth anniversary of the Effective Date. The provisions of
this Plan, however, shall continue thereafter to govern all Options theretofore
granted, until the exercise, expiration or cancellation of such Options.
10. AMENDMENT AND TERMINATION OF PLAN
The Board of Directors at any time may terminate this plan or amend it from
time to time in such respects as it deems desirable.
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EXHIBIT 5.1
SCHNECK WELTMAN HASHMALL & MISCHEL LLP
1285 Avenue of the Americas
New York, New York 10019
Tel 212-956-1500
Fax 212-956-3252
September 23, 1996
Microtel International, Inc.
2040 Fortune Drive
San Jose, California 95131
Re: Microtel International, Inc.
Registration of 520,000 Shares
of Common Stock on Form S-8
Gentlemen:
We have acted as counsel for Microtel International, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Registration Statement on Form S-8 (the "Registration Statement"), pursuant
to which the Company proposes to register 520,000 shares of the Company's common
stock, $.0033 par value per share ("Common Stock"). We are familiar with the
proceedings by which the Common Stock has been authorized and issued and have
reviewed and are familiar with the Certificate of Incorporation and the By-laws
of the Company, and such other corporate records and documents as we have deemed
necessary to express the opinion herein stated. We have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
Based upon the foregoing, and having regard to legal considerations we deem
relevant, we are of the opinion that the Common Stock has been duly and validly
authorized and issued by the Company, and the Common Stock is fully paid and
non-assessable.
We hereby consent to the use of this opinion as Exhibit 5(a) to the
Registration Statement and to the inclusion of our name under the section of the
Prospectus entitled "Legal Matters."
Very truly yours,
/s/ SCHNECK WELTMAN HASHMALL & MISCHEL LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement on Form S-8 of our report
dated February 14, 1996, relating to the consolidated financial statements of
MicroTel International, Inc. appearing in the Company's annual report on Form
10- K for the fiscal year ended December 31, 1995.
/s/ BDO Seidman, LLP
San Francisco, California
September 23, 1996
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Response USA, Inc.
June 2, 1994
Page 14
Exhibit 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement of
Microtel International, Inc. on Form S-8 of our report dated August 13, 1994
(November 18, 1994 as to paragraphs two through four in Note 3) appearing in the
Annual Report on Form 10-K of Microtel International, Inc. (formerly CXR
Corporation) for the year ended December 31, 1995.
/s/ DELOITTE & TOUCHE LLP
San Jose, California
September 23, 1996
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