-----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, LrfySYVfLfo9mzATstYCFoiq0PngaZErU/4bilmPjWrxiqEYAQI5l4Nngt0HTBat miYIvAoik8CGDXAWMn3klQ== 0000950168-99-001450.txt : 19990510 0000950168-99-001450.hdr.sgml : 19990510 ACCESSION NUMBER: 0000950168-99-001450 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990507 EFFECTIVENESS DATE: 19990507 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: 333-78075 FILM NUMBER: 99614392 BUSINESS ADDRESS: STREET 1: 401 N TRYON ST STREET 2: STE 1000 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 US LEC CORP S-8 As filed with the Securities and Exchange Commission on May 7, 1999 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 (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 ======================================================================================================== Title of Securities Amount to be Proposed Maximum Proposed Maximum to be Registered Registered Offering Price Per Aggregate Amount of Share(1) Offering Price Registration Fee - -------------------------------------------------------------------------------------------------------- Class A Common Stock 700,000 shares $22.41 $14,987,000 $4,167 ========================================================================================================
(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 high and low prices reported by Nasdaq on May 4, 1999. EXPLANATORY NOTE This Registration Statement covers (i) 700,000 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"). 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. 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") are incorporated herein by reference: (a) The contents of the Company's Registration Statement on Form S-8, Commission File No. 333-61617, including exhibits thereto, are hereby incorporated by reference into this Registration Statement, except as the same may be modified by the information set forth herein; (b) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1998; and (c) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1999. 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 8. EXHIBITS EXHIBIT NO. DESCRIPTION OF DOCUMENT 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.) ITEM 9. UNDERTAKINGS (a) The 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 previously not disclosed in this Registration Statement or any material change to such information in this 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 2 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. (b) The 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 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) 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. 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 May 7, 1999. US LEC CORP. By: /S/ AARON D. COWELL, JR. Aaron D. Cowell, Jr. Executive Vice President General Counsel and Corporate Secretary 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. 3
SIGNATURE TITLE DATE --------- ----- ---- /S/ RICHARD T. AAB Chairman, Chief Executive May 7, 1999 - --------------------------- Officer and Director Richard T. Aab /S/ TANSUKH V. GANATRA President, Chief Operating May 7, 1999 - --------------------------- Officer and Director Tansukh V. Ganatra /S/ AARON D. COWELL, JR. Executive Vice President, May 7, 1999 - --------------------------- General Counsel and Corporate Aaron D. Cowell, Jr. Secretary /S/ MICHAEL K. ROBINSON Executive Vice President and May 7, 1999 - --------------------------- Chief Financial Officer Michael K. Robinson /S/ DAVID M. FLAUM Director May 7, 1999 - --------------------------- David M. Flaum /S/ STEVEN L. SCHOONOVER Director May 7, 1999 - --------------------------- Steven L. Schoonover
4 EX-5 2 EXHIBIT 5 Exhibit 5 May 7, 1999 US LEC Corp. 401 North Tryon Street, Suite 1000 Charlotte, North Carolina 28202 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 May 7, 1999, in connection with the registration under the Securities Act of 1933, as amended, of 700,000 shares of the Company's Class A Common Stock, par value $0.01 per share (the "Shares"), which 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 3 EXHIBIT 23.1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of US LEC Corp. and subsidiaries (the "Company") on Form S-8 of our report dated February 6, 1999 (February 26, 1999 as to Note 6), which report includes an emphasis of a matter paragraph as to a significant portion of the Company's accounts receivable and revenues relating to reciprocal compensation currently in dispute, appearing in and incorporated by reference in the Annual Report on Form 10-K of US LEC Corp and subsidiaries for the year ended December 31, 1998. /s/ Deloitte & Touche LLP Charlotte, North Carolina May 6, 1999 -----END PRIVACY-ENHANCED MESSAGE-----