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As filed with the Securities and Exchange Commission on December 23, 1998
Registration No. 333-________
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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 issuer as specified in its charter)
DELAWARE 77-0226211
(State or other Jurisdiction of) (IRS Employer Identification No.)
4290 East Brickell Street
Ontario, California 91761
(Address of principal executive offices)
(1) INDIVIDUAL PLAN WITH
GALLAGHER, BRIODY & BUTLER PARTNERS
(2) 1997 STOCK INCENTIVE PLAN
(Full Title of the Plans)
CARMINE T. OLIVA
President and Chief Executive Officer
MicroTel International, Inc.
4290 East Brickell Street
Ontario, California 91761
(Name and address of agent for service)
(909) 456-4321
(Telephone number, including area code, of agent for service)
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COPY TO:
THOMAS P. GALLAGHER, ESQ.
Gallagher, Briody & Butler
212 Carnegie Center
Suite 402
Princeton, New Jersey 08540
(609) 452-6000
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate offering Amount of
to be registered registered per share(1) price registration fee
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<S> <C> <C> <C> <C>
Common Stock, 1,850,000 Shares $.641 $1,185,850 $329.67
par value $.0033 per share
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</TABLE>
(1) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of
the high and low price of shares of Common Stock on December 18, 1998,
as reported on the NASDAQ SmallCap Market.
The shares covered by this Registration Statement are 250,000 shares granted or
to be granted under the Individual Plan described herein and shares issuable
upon the exercise of stock options or to be granted under the Stock Incentive
Plan. There are also registered hereunder such additional indeterminate number
of shares as may be issued as a result of the antidilution provisions of the
Stock Incentive Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, as filed by the Company with the Securities
and Exchange Commission, are incorporated by reference in this Registration
Statement and made a part hereof:
(i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(ii) the Company's Quarterly Report on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998;
(iii) the Company's Current Reports on Form 8-K filed April 23,
1998 as amended on Form 8-KA filed June 4, 1998 and July 30, 1998; and
(iv) the description of the Common Stock which is contained in a
Registration Statement filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating
such description.
All reports and other 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 that indicates
that all securities offered hereby have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents. Any statement contained in any document, all or a portion of which
is 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 or 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation and reference is made to the
Delaware General Corporation Law (the "DGCL"). Section 145 of the DGCL
provides, in part, that a company may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
contemplated action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such conduct was unlawful. The
DGCL further provides that a corporation may indemnify such officer or
director in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the
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corporation. Where such officer or director is successful on the merits in
the defense of any action referred to above, the corporation must indemnify
such officer or director against expenses actually and reasonably incurred.
Article XI of the Company's By-laws parallels Section 145 of the DGCL and
provides for indemnification of officers and directors in similar
circumstances.
Section 102(b)(7) of the DGCL enables a corporation in its
certificate of incorporation to eliminate or limit the personal liability of
a director for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article Fifth of the Company's Certificate of Incorporation
parallels this language and provides that to the fullest extent permitted by
the DGCL, no director shall be liable to the Company or its stockholders for
monetary damages for breach of fiduciary as a director.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or
otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted against the Company by such director, officer
or controlling person in connection with the securities being registered, the
Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of this
registration statement.
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EXHIBIT NUMBER EXHIBIT
<S> <C>
5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of BDO Seidman, LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Gallagher, Briody & Butler (included as part of
Exhibit 5.1)
24.1 Power of Attorney (included as part of the signature page)
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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;
PROVIDED, HOWEVER, that subparagraphs (a)(1)(i) and (a)(1)(ii) of
this section 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 Company pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by referenced 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 that remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this 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) The undersigned registrant hereby undertakes to transmit or
cause to be transmitted to all participants in the Individual Plan and 1997
Stock Incentive Plan who do not otherwise receive such material as
shareholders of the Company, at the time such material is sent to
shareholders, copies of all reports, proxy statements and other
communications distributed to its shareholders generally.
(d) 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
Company 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 Ontario, California, on this 23 day
of December 1998.
MicroTel International Inc.
By: /s/ CARMINE T. OLIVA
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Carmine T. Oliva
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by or on behalf of the following
persons in the capacities and on the dates indicated.
Each person, in so signing, also makes, constitutes and appoints
Carmine T. Oliva, Chairman and Chief Executive Officer, his true and lawful
attorney-in-fact, in his name, place and stead to execute and cause to be
filed with the Securities and Exchange Commission any or all amendments to
this Registration Statement, with all exhibits and any and all documents
required to be filed with respect thereto, and to do and perform each and
every act and thing necessary to effectuate the same.
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SIGNATURE CAPACITY DATE
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<S> <C> <C>
/s/ CARMINE T. OLIVA
- ----------------------------- President and Chief Executive December 23, 1998
Carmine T. Oliva Officer and Director
(Principal Executive Officer)
/s/ DAVID A. BARRETT
- ----------------------------- Director December 23, 1998
David A. Barrett
/s/ LAURENCE P. FINNEGAN, JR.
- ----------------------------- Director December 23, 1998
Laurence P. Finnegan, Jr.
/s/ ROBERT B. RUNYON
- ----------------------------- Director December 23, 1998
Robert B. Runyon
/s/ JAMES P. BUTLER
- ----------------------------- Chief Financial Officer December 23, 1998
James P. Butler (Principal Accounting and
Financial Officer)
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER EXHIBIT
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<S> <C>
5.1 - Opinion of Gallagher, Briody & Butler
23.1 - Consent of BDO Seidman, LLP
23.2 - Consent of KPMG Peat Marwick LLP
23.3 - Consent of Gallagher, Briody & Butler (included as part of
Exhibit 5.1)
24.1 - Power of Attorney (included as part of the signature page)
</TABLE>
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Exhibit 5.1
December 22, 1998
MicroTel International Inc.
4290 East Brickell Street
Ontario, CA 91761
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE COMPANY'S
INDIVIDUAL PLAN AND 1997 STOCK INCENTIVE PLAN
Dear Sir or Madam:
We have acted as counsel to MicroTel International Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933,
as amended (the "Act"), relating to the offering of up to 250,000 shares of
the Company's Common Stock (the "Common Stock") to be issued to a Consultant
of the Company pursuant to an Individual Plan entered into by the Company and
such Consultant (the "Individual Plan") and relating to the offering of up to
1,600,000 shares of the Company's Common Stock, issued or to be issued
pursuant to the Company's 1997 Stock Incentive Plan (the "1997 Stock Plan").
We have examined such records, documents, statutes and decisions as we have
deemed relevant in rendering this opinion. In our examination we have assumed
the genuineness of documents submitted to us as originals and the conformity
with the original of all documents submitted to us as copies thereof.
In our opinion, the shares of the Company's Common Stock to be
issued in accordance with the terms of the Individual Plan and the 1997 Stock
Plan will be, when issued in accordance with the terms of such plans be
validly issued, fully paid and nonassessable shares of the Common Stock of
the Company.
The opinion set forth above is limited to the General Corporation
Law of the State of Delaware.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement. In giving such opinion, we do not thereby admit that
we are acting within the category of persons whose consent is required under
Section 7 of the Act or the rules or regulations of the Securities and
Exchange Commission thereunder.
GALLAGHER, BRIODY & BUTLER
By: /s/ Thomas P. Gallagher
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
MicroTel International, Inc.
Ontario, California
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 20, 1998, except as to Note
17, which is as of April 9, 1998, relating to the consolidated financial
statements and financial statement schedule of MicroTel International, Inc.
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997. Our report contains an explanatory paragraph regarding the
Company's ability to continue as a going concern.
BDO SEIDMAN, LLP
Costa Mesa, California
December 21, 1998
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated December 13, 1996 relating to the
consolidated financial statements of MicroTel International Inc. (formerly
known as XCEL Corporation and subsidiaries) included in its Annual Report on
Form 10-K for the year ended December 31, 1996, filed with the Securities and
Exchange Commission.
KPMG PEAT MARWICK LLP
Orange County, California
December 18, 1998
