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As filed with the Securities and Exchange Commission on March 11, 1999
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
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(State or other Jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
4290 East Brickell Street
Ontario, California 91761
(Address of principal executive offices)
INDIVIDUAL PLANS WITH
PAUL HICKEY; NEIL SUSSMAN; SEAN KENLON;
EUGENIA VALDES AND HARRY KOUPAS
(Full Title of the Plan)
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, 785,000 Shares $0.50 $392,500 $109.12
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 March 8, 1999, as
reported on the NASDAQ SmallCap Market.
The shares covered by this Registration Statement are 785,000 shares granted or
to be granted under the Individual Plans described herein.
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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 (and amended on Form 8-K/A filed June 4, 1998),
July 30, 1998 and February 11, 1999; 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
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5.1 Opinion of Gallagher, Briody & Butler
23.1 Consent of BDO Seidman, LLP
23.2 Consent of KPMG 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 the participants in the Individual Plans 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 11th
day of March 1999.
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.
Signature Capacity Date
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/s/ Carmine T. Oliva President March 11, 1999
- ------------------------------ and Chief Executive
Carmine T. Oliva Officer and Director
(Principal Executive Officer)
/s/ David A. Barrett Director March 11, 1999
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David A. Barrett
/s/ Laurence P. Finnegan, Jr. Director March 11, 1999
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Laurence P. Finnegan, Jr.
/s/ Robert B. Runyon Director March 11, 1999
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Robert B. Runyon
/s/ James P. Butler Chief Financial Officer March 11, 1999
- ------------------------------ (Principal Accounting and
James P. Butler Financial Officer)
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit
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5.1 - Opinion of Gallagher, Briody & Butler
23.1 - Consent of BDO Seidman, LLP
23.2 - Consent of KPMG 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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Exhibit 5.1
March 11, 1999
MicroTel International Inc.
4290 East Brickell Street
Ontario, CA 91761
RE: REGISTRATION STATEMENT ON FORM S-8 RELATING TO THE COMPANY'S
INDIVIDUAL 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 785,000 shares of the
Company's Common Stock (the "Common Stock") to be issued to certain Consultants
of the Company pursuant to Individual Plans entered into by the Company and such
Consultants (the "Individual Plans"). 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 Plans 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.
/s/ BDO Seidman, LLP
BDO SEIDMAN, LLP
Orange County, California
March 9, 1999
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We 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
statements of operations, stockholders' equity and cash flows of MicroTel
International, Inc. (formerly known as XCEL Corporation and subsidiaries) for
the year ended September 30, 1996, included in its Annual Report on Form 10-K
filed with the Securities and Exchange Commission.
/s/ KPMG LLP
KPMG LLP
Orange County, California
March 9, 1999
