SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): SEPTEMBER 1, 2004
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MICROTEL INTERNATIONAL INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 1-10346 77-0226211
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(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
9485 HAVEN AVENUE, SUITE 100, RANCHO CUCAMONGA, CA 91730
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(Address of Principal Executive Officers) (Zip Code)
Registrant's telephone number, including area code: (909) 987-9220
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NOT APPLICABLE
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN
FISCAL YEAR
Our board of directors adopted amended and restated bylaws ("amended
bylaws") and approved an amended and restated certificate of incorporation
("amended certificate"). The amended bylaws became effective as of September 1,
2004, and we intend to submit them for stockholder ratification at our 2004
annual meeting of stockholders that is planned for 10:00 a.m. on October 19,
2004. The amended certificate is planned to be filed with the Delaware Secretary
of State and to become effective following stockholder approval at the 2004
annual meeting.
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The amended certificate reflects our current corporate name and
registered office in the State of Delaware and contains various wording changes
to modernize the provisions of our existing certificate of incorporation
("existing certificate") in accordance with the Delaware General Corporation Law
("DGCL"). The amended certificate also contains substantive differences
described generally below. We encourage stockholders to review the complete
terms of the form of amended certificate, which is incorporated by reference as
an exhibit to this report.
We have also attached as an exhibit to this report a copy of Article
Eighth of the existing certificate. Approval of the amended certificate requires
the affirmative vote of the majority of outstanding shares of our common stock
as of the record date, except that approval of the replacement of Article Eighth
of the existing certificate with Article VIII of the amended certificate
requires the affirmative vote of holders of not less than 67% of the outstanding
shares of our common stock as of the record date.
Accordingly, if the proposal regarding the adoption of the amended
certificate receives the affirmative vote of at least a majority of outstanding
shares but does not receive the affirmative vote of at least 67% of the
outstanding shares, then the proposal will be deemed to have been approved in
all respects other than with respect to the proposed replacement of Article
Eighth of the existing certificate with Article VIII of the amended certificate.
In that event, our board of directors will substitute Article Eighth of the
existing certificate into the amended certificate in place of proposed Article
VIII of the amended certificate.
Our board of directors also has reserved the right to abandon any or
all of the proposed amendments to the existing certificate at any time prior to
the effectiveness of the filing of the amended certificate with the Delaware
Secretary of State, notwithstanding authorization of any or all of the proposed
amendments by our stockholders.
AUTHORIZED CAPITAL. Article Fourth of our existing certificate provides
for 50,000,000 shares of common stock, 1/3 cent par value per share, and
10,000,000 shares of preferred stock, $0.01 par value per share. Of the
10,000,000 shares of authorized preferred stock, our board of directors
designated 200 shares as Series A Preferred Stock and 150,000 shares as Series B
Preferred Stock, and the remainder are undesignated preferred that may be issued
in one or more series as designated from time to time by our board of directors.
All previously outstanding shares of Series A Preferred Stock and Series B
Preferred Stock have either been converted into shares of our common stock or
redeemed, and therefore were restored to their status as authorized but unissued
shares of those respective classes of preferred stock. We do not intend to issue
additional shares of preferred stock with rights, preferences and privileges
similar to the Series A Preferred Stock or Series B Preferred Stock, and we
desire to express the par value of our preferred stock in decimals rather than
fractions.
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Also, we believe it is in the best interests of our company and our
stockholders to increase our authorized capital. An increase in our authorized
capital will make additional shares of common stock available for acquisitions,
financings, present and future employee benefit programs, and other corporate
purposes. The additional authorized shares of common stock that will be
available if the amended certificate is approved by our stockholders and filed
with the Delaware Secretary of State may be issued from time to time as our
board of directors may determine, without further action of our stockholders.
Although we have no definitive plans to utilize such shares to entrench present
management, we may, in the future, be able to use the additional shares of
common stock as a defensive tactic against hostile takeover attempts. The
authorization of such additional shares of common stock will have no current
anti-takeover effect. No hostile takeover attempts are, to our management's
knowledge, currently threatened. The relative rights and limitations of the
common stock would remain unchanged under the amendment. Stockholders do not
currently possess, nor upon the approval of the proposed authorized share
increase will they acquire, preemptive rights that would entitle such persons,
as a matter of right, to subscribe for the purchase of any shares, rights,
warrants or other securities or obligations convertible into, or exchangeable
for, securities of our company.
Accordingly, Article IV of our amended certificate provides for
authorized capital of 150,000,000 shares of common stock, $0.0033 par value per
share, and 10,000,000 shares of undesignated preferred stock, $0.01 par value
per share, that may be issued in one or more series as designated from time to
time by our board of directors. Also, Article IV of the amended certificate
contains a description of the attributes of our common stock. There is not a
similar description in our existing certificate.
ADVANCE NOTICE OF NEW BUSINESS AND STOCKHOLDER NOMINATIONS. Article XII
of the amended certificate provides that advance notice of new business and
stockholder nominations for the election of directors shall be given in the
manner and to the extent provided in the bylaws of the corporation. The existing
certificate does not address these matters. We have addressed these matters in
the amended bylaws.
INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article VI of the amended
certificate provides that we shall indemnify, to the fullest extent permitted by
law, any person in connection with any action, suit or proceeding to which they
are made or are threatened to be made by reason of the fact that such person is
or was a director or officer of our company or is or was serving at our request
as a director or officer of another entity. There is no similar provision in the
existing certificate. However, this proposed provision is typical of Delaware
corporations that have modernized certificates of incorporation and is
consistent with powers granted to us under Section 145 of the DGCL and with
obligations imposed upon us by our previous bylaws and amended bylaws.
PERSONAL LIABILITY OF DIRECTORS. Both the existing certificate and the
amended certificate provide for limitation of a director's personal liability to
us or our stockholders for monetary damages for breach of fiduciary duty, to the
fullest extent permitted by the DGCL from time to time. The amended certificate
adds a typical proviso indicating that in no event will the personal liability
of any of our directors for monetary damages be limited for any breach of
loyalty, for any acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, for any transaction from which the
director derived an improper personal benefit, or for unlawful payment of
dividends or unlawful stock purchase or redemption as provided in Section 174 of
the DGCL.
DURATION OF EXISTENCE AND LOCATION OF STOCKHOLDER MEETINGS AND
CORPORATE BOOKS. The amended certificate contains typical provisions that
provide that we have a perpetual existence, that meetings of our stockholders
may be held within or without the State of Delaware, as our bylaws may provide,
and that our books may be kept outside the State of Delaware at places
designated by our board of directors or bylaws. The existing certificate was
silent on these matters.
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CLASSIFICATION OF BOARD OF DIRECTORS. Both Article Eighth of the
existing certificate and Article VIII of the amended certificate provide for a
classified board of directors that is divided into three classes, with each
class serving a staggered three-year term. The amended certificate designates
the classes as Class I, Class II and Class III, and provides that the authorized
number of directors shall be set solely by resolution of the board of directors
and that directors shall be assigned to each class in accordance with
resolutions adopted by our board of directors. The amended certificate also
provides that no decrease in the number of directors constituting our board of
directors will shorten the term of any incumbent director and that the manner by
which a director may be removed from office shall be as provided in our bylaws.
Article Eighth of the existing certificate and Article VIII of the amended
certificate both provide that any director, or the entire board of directors,
may be removed at any time, but only for cause, and that the provisions of
Article Eighth and Article VIII may not be repealed or amended in any respect,
unless the amendment or repeal is approved by the affirmative vote of the
holders of not less than 67% of the outstanding shares of our common stock.
AMENDED AND RESTATED BYLAWS
By deleting ineffective and unnecessary provisions and adding some
additional provisions that our board of directors deems desirable and in our
company's best interests, the amended bylaws update our previous bylaws to be
consistent with current Delaware law and practices typical of modern Delaware
corporations. Key substantive differences between the amended bylaws and the
previous bylaws are described generally below. We encourage stockholders to
review the complete terms of the amended bylaws, which are incorporated by
reference as an exhibit to this report.
MEETINGS BY USE OF REMOTE COMMUNICATION. Section 2.1 of the amended
bylaws includes a provision authorizing us to hold meetings of our stockholders
either at a place specified by our board of directors, as was permitted under
our previous bylaws, or by means of remote communications, as permitted by
Section 211(a)(2) of the DGCL.
RIGHT TO CALL SPECIAL MEETINGS OF STOCKHOLDERS. Section 2.3 of the
amended bylaws provides that special meetings of stockholders may be called by
our board of directors, chairman of the board, chief executive officer or
president (in the absence of a chief executive officer), and shall be called by
our secretary at the request in writing by holders of not less than 10% of the
total voting power of all of our outstanding securities then entitled to vote.
The previous bylaws did not expressly authorize the chairman of the board or
chief executive officer to call special meetings of stockholders.
NOTICES BY ELECTRONIC TRANSMISSION. Article IX of the amended bylaws
provides that any notice to stockholders given by us under any provision of the
DGCL, our certificate of incorporation or the amended bylaws shall be effective
if given by a form of electronic transmission consented to by the stockholder to
whom the notice is given. Various provisions of the amended bylaws, such as
Sections 2.5 and 3.7 (relating to notice of stockholder and board meetings,
respectively), Sections 2.9 and 3.9 (relating to stockholder and director
waivers of notice, respectively), Section 3.3 (relating to form and use of
ballots), Section 3.4 (relating to director resignations), and Section 3.10
(relating to board action by written consent), permit use of electronic
transmissions. The previous bylaws did not address electronic transmissions of
notices, waivers, ballots and consents.
ADJOURNMENT OF STOCKHOLDERS' MEETING. Section 2.6 of the amended bylaws
provides that stockholders' meetings at which a quorum is not present may be
adjourned either by the chairperson of the meeting or by the holders of a
majority of the shares represented in person or by proxy at the meeting. The
previous bylaws did not provide for adjournment by the chairperson.
AUTHORIZED NUMBER OF DIRECTORS. Section 3.2 of the amended bylaws
provides that the authorized number of directors shall be four until changed by
resolution of our board of directors. Section 15 of the previous bylaws
contained a similar provision, except that Section 15 also provided that the
authorized number of directors could not be reduced below four without the vote
or written consent of stockholders holding 80% of the voting power of our
company.
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FILLING OF VACANCIES ON THE BOARD. Section 3.4 of the amended bylaws
provides that any vacancies on the board of directors resulting from death,
resignation, disqualification, removal, newly created directorships or other
causes shall, except as otherwise provided by the DGCL or by the certificate of
incorporation, be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the board
of directors, or by a sole remaining director, and not by the stockholders. This
provision is consistent with our amended certificate. In contrast, Section 17 of
the previous bylaws provided the board of directors with the power to fill
vacancies but did not prohibit stockholders from filling vacancies.
NOTICE OF BOARD MEETINGS. Section 3.6 of the amended bylaws provides
that regular meetings of the board of directors may be held without notice at
such time and at such place as shall from time to time be determined by
resolution of the board of the directors. In contrast, the previous bylaws
required that written notice of regular meetings be provided to members of the
board of directors.
Section 3.7 of the amended bylaws provides that notices of board of
directors meetings must be delivered or sent at least 24 hours before the time
of holding of the meeting, if delivered by hand, courier or telephone or sent by
electronic mail or facsimile, and at least four days before the time of holding
of the meeting if deposited in the United States mail. The previous bylaws
provided that written notice of the time and place of all regular and special
meetings of the board of directors had to be delivered personally to each
director, or sent to each director by mail or other form of written
communication, at least one day before the date of the meeting.
RIGHT TO CALL SPECIAL MEETINGS OF THE BOARD. Section 3.7 of the amended
bylaws provides that special meetings of the board of directors may be called by
our chairman of the board, chief executive officer, president or secretary, or
by any two directors. In contrast, the previous bylaws required that special
meetings of the board of directors be called by our president or by a majority
of the board of directors.
APPROVAL OF LOANS TO OFFICERS AND EMPLOYEES. Section 3.12 of the
amended bylaws provides that we may lend money to, or guarantee any obligation
of, or otherwise assist any officer or employee of ours or our subsidiaries
whenever the board of directors determines that such an arrangement may
reasonably be expected to benefit us and is not prohibited by applicable laws,
rules or regulations. There was no similar provision in the previous bylaws.
DUTIES OF OFFICERS. Article V of the amended bylaws provides modernized
descriptions of the duties of our officers and also includes descriptions of
duties of our chief executive officer and chief financial officer. The previous
bylaws did not include descriptions of duties of our chief executive officer and
chief financial officer.
INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article VI of the amended
bylaws provides, and Article XI of the previous bylaws provided, that we had
rights and/or obligations to indemnify our directors, officers, employees and
agents in connection with certain actions, suits or proceedings ("proceedings")
and to pay their expenses in advance of the final disposition of the
proceedings, to the extent permitted by the DGCL. However, these Articles differ
as to whether indemnification and advancement of expenses is required or rather
is merely permitted.
Article VI of the amended bylaws provides that to the fullest extent
and in the manner permitted by the DGCL as it exists from time to time, we must
indemnify our directors and officers who are involved in a proceeding by reason
of the fact that they were serving as a director, officer, employee or agent of
us or, at our request, of another entity or enterprise, and that we must pay
their expenses in advance of the final disposition of the proceeding. Article VI
also provides that we may provide indemnification to employees and agents who
are not directors or officers and that we may pay their expenses in advance of
the final disposition. In contrast, Article XI of the previous bylaws required
us to provide indemnification to directors, officers, employees or agents and
permitted us to pay their expenses in advance of the final disposition.
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PARTLY PAID SHARES. Section 8.3 of the amended bylaws provides that we
may issue the whole or any part of its shares as partly paid and subject to call
for the remainder of the consideration to be paid for those shares, and that
dividends declared upon partly paid shares shall be paid only upon the basis of
the percentage of the consideration actually paid for those shares. The previous
bylaws did not address this matter.
STOCKHOLDER PROPOSALS. Section 2.14 of the amended bylaws contains
provisions governing submission by stockholders of nominations or business
proposals to be brought before a meeting of our stockholders without including
the nominee or business proposal in our proxy materials. Stockholders must
provide us with certain information described in Section 2.14 within the
timeframes prescribed by that Section. Otherwise, the chairperson of the meeting
may prohibit the stockholder from proposing the nominee or business at the
meeting of stockholders. The previous bylaws did not address these matters.
These advance notice provisions may be viewed as friendly to incumbent directors
because they prevent stockholders from presenting new nominees or business
proposals at or near the time of a meeting of stockholders.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Businesses Acquired.
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Not applicable.
(b) Pro Forma Financial Information.
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Not applicable.
(c) Exhibits.
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Number Description
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3.1 Form of Amended and Restated Certificate of Incorporation of
MicroTel International Inc. (1)
3.2 Amended and Restated Bylaws of MicroTel International Inc. (2)
3.3 Article Eighth of the Existing Certificate of Incorporation of
MicroTel International Inc. (3)
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(1) Filed as Appendix D to our revised preliminary proxy statement for
our 2004 annual meeting of stockholders and incorporated herein by
reference.
(2) Filed as Appendix F to our revised preliminary proxy statement for
our 2004 annual meeting of stockholders and incorporated herein by
reference.
(3) Filed as Appendix E to our revised preliminary proxy statement for
our 2004 annual meeting of stockholders and incorporated herein by
reference.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: September 8, 2004
MICROTEL INTERNATIONAL INC.
By: /s/ CARMINE T. OLIVA
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Carmine T. Oliva, Chief Executive Officer
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