-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CbLka7ECnS5me3lsxDrXs/TZV5rMhNVZy3aYBgvZ0tGx5u/YI1egZjp6UYOijHvq ClSh2S3UaICp2n58OltodQ== 0000950168-98-002746.txt : 19980818 0000950168-98-002746.hdr.sgml : 19980818 ACCESSION NUMBER: 0000950168-98-002746 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19980817 EFFECTIVENESS DATE: 19980817 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: US LEC CORP CENTRAL INDEX KEY: 0001054290 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 562065535 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-61617 FILM NUMBER: 98692845 BUSINESS ADDRESS: STREET 1: 212 S TRYON ST STREET 2: STE 1540 CITY: CHARLOTTE STATE: NC ZIP: 28251 MAIL ADDRESS: STREET 1: 212 S TRYON ST STREET 2: SUITE 1540 CITY: CHARLOTTE STATE: NC ZIP: 28281 S-8 1 As filed with the Securities and Exchange Commission on August 17, 1998 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 US LEC CORP. (Exact name of Registrant as specified in its Charter) DELAWARE 56-2065535 (State or other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 401 NORTH TRYON STREET, SUITE 1000 CHARLOTTE, NORTH CAROLINA 28202 (Address of principal executive offices) (Zip Code) US LEC CORP. 1998 OMNIBUS STOCK PLAN AND WARRANTS (Full title of the Plan(s)) AARON D. COWELL, JR. EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL US LEC CORP. 401 NORTH TRYON STREET, SUITE 1000 CHARLOTTE, NORTH CAROLINA 28202 (Name and Address of Agent for Service) (704) 319-1000 (Telephone Number, Including Area Code, of Agent for Service) Copy to: BARNEY STEWART III, ESQ. MOORE & VAN ALLEN, PLLC NATIONSBANK CORPORATE CENTER 100 NORTH TRYON STREET, FLOOR 47 CHARLOTTE, NORTH CAROLINA 28202-4003 (704) 331-1000 CALCULATION OF REGISTRATION FEE
Proposed Title of Proposed Maximum Maximum Securities to be Amount to be Offering Price Per Aggregate Amount of Registered Registered Share(1) Offering Price Registration Fee - -------------------------------------------------------------------------------------- Class A Common 1,480,000 Stock shares $18.00 $26,640,000 $7,859 - --------------------------------------------------------------------------------------
(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933, as amended (the "Securities Act"), solely for the purpose of calculating the registration fee, based upon the average of the last sale price reported by Nasdaq on August 10, 1998. EXPLANATORY NOTE This Registration Statement covers (i) 1,300,000 shares of Class A Common Stock, par value $.01 per share (the "Common Stock"), of US LEC Corp. (the "Company" or the "Registrant") reserved for issuance under the Company's 1998 Omnibus Stock Plan (the "Plan") and (ii) 180,000 shares of Common Stock reserved for issuance upon the exercise of nontransferable warrants granted by the Company to two employees (the "Employee Warrants"). Pursuant to Rule 428 promulgated under the Securities Act, the Company intends to deliver a prospectus meeting the requirements of Part I of Form S-8 to all participants in the Plan and to each person holding an Employee Warrant. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents heretofore filed by the Company with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act are incorporated herein by reference: (a) The Prospectus included as part of the Company's Registration Statement on Form S-1 (Reg. No. 333-46341) (the "Registration Statement on Form S-1") relating to the initial public offering of the Common Stock; (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998; (c) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998; and (d) The description of the Common Stock contained in the Company's Registration Statement on Form 8-A. In addition, all documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment hereto which indicates that all securities offered hereby have been sold or which deregisters all the securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Certain provisions of the Company's Restated Certificate of Incorporation (the "Certificate") and Bylaws, as amended, provide that the Company shall indemnify all of its directors and officers to the fullest extent permitted by the General Corporation Law of the State of Delaware (the "Delaware Law"). In addition, the Certificate authorizes the Registrant to enter into one or more agreements with any person which provide for indemnification greater or different than that provided in its Certificate. Section 145 of the Delaware Law permits a corporation to indemnify its directors and officers against expenses (including attorney's fees), judgments, fines and amounts paid in settlements actually and reasonably incurred by them in connection with any action, suit or proceeding, whether criminal or civil, brought by a third party if such directors or officers acted in good faith and in a manner they 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 reason to believe their conduct was unlawful. In a derivative action, indemnification may be made only for expenses actually and reasonably incurred by directors and officers in connection with the defense or settlement of an action or suit and only with respect to a matter as to which they shall have acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that the defendant officers or directors are reasonably entitled to indemnity for such expenses despite such adjudication of liability. 2 In addition, Section 102 of the Delaware Law provides that a corporation may include in its certificate of incorporation a provision eliminating or limiting the personal liability of directors for monetary damages for breach of fiduciary duty, provided that such provision shall not eliminate or limit the liability of a director: (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 that involve intentional misconduct or a knowing violation of the law; (iii) conduct in violation of Section 174 of the Delaware Law (which section relates to unlawful distributions); or (iv) for any transaction from which the director derived an improper personal benefit. The Certificate currently includes such provisions. The Company maintains a directors and officers insurance policy which insures its officers and directors from any claim arising out of an alleged wrongful act by such persons in their respective capacities as officers and directors of the Company. ITEM 8. EXHIBITS EXHIBIT NO. DESCRIPTION OF DOCUMENT 4.1 Form of Class A Common Stock Certificate* 4.2 US LEC Corp. 1998 Omnibus Stock Plan* 4.3 Warrant, dated August 4, 1997 issued to Craig K. Simpson* 4.4 Warrant, dated November 10, 1997 issued to Craig Chason 5 Opinion of Moore & Van Allen, PLLC 23.1 Consent of Deloitte & Touche, LLP 23.2 Consent of Moore & Van Allen, PLLC (included in the opinion filed as Exhibit No. 5) 24.1 Power of Attorney (included on the signature page.) - ------------ * Incorporated by reference to the Company's Registration Statement on Form S-1. 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 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. (2) That, for the purpose of determining any liability under the Securities Act, 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 which remain unsold at the termination of the offering. 3 (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act 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. (c) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Charlotte, State of North Carolina, on August 17, 1998. US LEC CORP. By: /S/ AARON D. COWELL, JR. Aaron D. Cowell, Jr. Executive Vice President and General Counsel POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Aaron D. Cowell, Jr. his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacity, 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, granting unto said attorney-in-fact and agent 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 attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registrant Statement has been signed by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE /S/ RICHARD T. AAB Chairman, Chief Executive Richard T. Aab Officer and Director August 17, 1998 /S/ TANSUKH V. GANATRA President, Chief Operating Tansukh V. Ganatra Officer and Director August 17, 1998 /S/ AARON D. COWELL, JR. Executive Vice President Aaron D. Cowell, Jr. and General Counsel August 17, 1998 /S/ DAVID M. FLAUM David M. Flaum Director August 17, 1998 /S/ STEVEN L. SCHOONOVER Steven L. Schoonover Director August 17, 1998 5 EX-4.4 2 EXHIBIT 4.4 Exhibit 4.4 WARRANT This Warrant is issued as of November 10, 1997, by US LEC L.L.C., a Delaware limited liability company (the "Company"), to Craig Chason, a resident of Louisville, Kentucky (the "Holder"). 1. Issuance of Warrant. The Company hereby grants to the Holder the right to purchase and acquire, at the times and subject to the conditions hereinafter set forth, ten (10) non-voting units ("Non-Voting Units") of ownership interest in the Company at the Exercise Price (as hereinafter defined). In the event the Company merges with and into any other entity such that the Company is not the surviving entity, the Holder shall be entitled to purchase that number of shares or other equity interests of the surviving entity that the Holder would have been entitled to receive as a result of the merger had the Holder exercised its rights under this Warrant prior to such merger. 2. Exercise; Term. Subject to the terms and conditions hereinafter set forth, the Holder shall be entitled to purchase and acquire up to ten (10) Non-Voting Units (in minimum increments of five (5) Non-Voting Units at a time) at any time and from time to time from the date of this Warrant until 5:00 p.m. E.S.T., on November 10, 2000. The Holder shall exercise its rights to purchase Non-Voting Units under this Warrant by providing written notice of exercise to the Company at the following address: 212 South Tryon Street, Suite 1540, Charlotte, North Carolina 28281, Attention: Chairman, or such other address as the Company shall designate in a written notice to the Holder. In addition, the Holder shall deliver to the Company this Warrant (or any replacement warrant issued by the Company pursuant to Paragraph 3 below), an executed copy of the signature page of the Operating Agreement of the Company (but only with respect to the first exercise of the Warrant), and a certified check representing payment to the Company of the aggregate Exercise Price of the Non-Voting Units to be purchased. In addition, the exercise of this Warrant shall be conditioned on the continued employment of the Holder by the Company at the time of any such exercise. In addition, the exercise of this Warrant shall be conditioned on compliance with all applicable laws and regulations, including, without limitation, obtaining all requisite approvals, if any, which may then be required under applicable law. This Warrant, and all rights of the Holder to purchase or acquire Non-Voting Units hereunder, shall expire automatically and without any further action by the Company at 5:00 p.m. E.S.T., on November 10, 2000. 3. Effect of Exercise. The exercise of this Warrant (or any replacement warrant issued by the Company as provided herein), shall become effective on the first day of the month immediately following the month in which notice of exercise is given to the Company. Upon the exercise of this Warrant or any replacement warrant the Company shall, as promptly as practicable, deliver to the Holder a certificate or certificates representing the number of Non-Voting Units purchased by the Holder. If this Warrant shall be exercised with respect to less than all of the Non-Voting Units to which the Holder is entitled to purchase hereunder, the Holder shall be entitled to receive a replacement warrant covering the number of Non-Voting Units in respect of which this Warrant shall not have been exercised, which new warrant shall in all other respects be identical to this Warrant. 4. Exercise Price. The exercise price (the "Exercise Price") per each Unit purchased pursuant to the terms of this Warrant shall be FOUR THOUSAND TWO HUNDRED EIGHTY-FIVE DOLLARS ($4,285.00). 5. No Transfer Rights. Neither this Warrant nor the Non-Voting Units have been registered under the Securities Act of 1933, as amended ("Securities Act" or any state securities laws "Blue Sky Laws"). This Warrant has been acquired for investment purposes and not with a view to distribution or resale and may not be pledged, hypothecated, sold, made subject to a security interest, or otherwise transferred (voluntarily or involuntarily) without (a) the prior written consent of the Company and (b) (i) an effective registration statement for such Warrant under the Securities Act and such applicable Blue Sky Laws, or (ii) an opinion of counsel, which opinion and counsel shall be reasonably satisfactory to the Company and its counsel, that registration is not required under the Securities Act or under any applicable Blue Sky Laws. Any attempted transfer of this Warrant in violation of this Paragraph 5 shall render this Warrant null and void and of no further force and effect. In addition, any Non-Voting Units issued upon the exercise of this Warrant shall be subject to the restrictions on transfer set forth in the Operating Agreement of the Company, and shall bear substantially the following legend: THE UNITS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY STATE. THE UNITS HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL TO THE EFFECT THAT THE PROPOSED TRANSACTION DOES NOT INVOLVE A VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED. THE UNITS REPRESENTED BY THIS CERTIFICATE, AND THE TRANSFER HEREOF, ARE SUBJECT TO THE TERMS AND CONDITIONS OF THAT CERTAIN OPERATING AGREEMENT DATED JANUARY 1, 1997, AS AMENDED FROM TIME TO TIME, A COPY OF WHICH IS ON FILE IN THE PRINCIPAL OFFICE OF THE COMPANY. 6. Additional Actions. The Holder and the Company agree to execute such other documents and instruments as counsel for the Company reasonably deems necessary to effect the compliance of the issuance of this Warrant and any Non-Voting Units issued upon exercise hereof with applicable federal and state securities laws. 7. Governing Law. This Warrant shall be governed by the laws of the State of Delaware applicable to agreements made entirely within the State of Delaware. IN WITNESS WHEREOF, the parties hereto have set their hands as of the date first above written. COMPANY: US LEC L.L.C., a Delaware limited liability company By: /s/ Tansukh V. Ganatra ------------------------------ Tansukh V. Ganatra, President HOLDER: /s/ Craig Chason -------------------- Craig Chason 2 EX-5 3 EXHIBIT 5 Exhibit 5 August 17, 1998 US LEC Corp. 212 South Tryon Street, Suite 1540 Charlotte, North Carolina 28281 Re: Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to US LEC Corp., a Delaware corporation (the "Company" or "you") and have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission on or about August 17, 1998, in connection with the registration under the Securities Act of 1933, as amended, of 1,480,000 shares of the Company's Class A Common Stock, par value $0.01 per share (the "Shares"), of which 180,000 shares are reserved for issuance pursuant to certain warrant agreements and 1,300,000 shares are reserved for issuance under the US LEC Corp. 1998 Omnibus Stock Plan. As your legal counsel, we have examined the proceedings taken, and are familiar with the proceedings proposed to be taken, by you in connection with the sale and issuance of the Shares. In our opinion, the Shares, when issued and sold in the manner referred to in the Registration Statement and in accordance with the resolutions adopted by the Board of Directors of the Company, are or will be legally and validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and any subsequent amendment thereto. Very truly yours, MOORE & VAN ALLEN, PLLC EX-23.1 4 EXHIBIT 23.1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of US LEC Corp. on Form S-8 of our report dated February 4, 1998, appearing in the Prospectus, which is part of the Registration Statement on Form S-1 (333-46341), for the year ended December 31, 1997. /s/ DELOITTE & TOUCHE LLP - ------------------------- Charlotte, North Carolina August 17, 1998 -----END PRIVACY-ENHANCED MESSAGE-----