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)
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US LEC CORP.
1998 OMNIBUS STOCK PLAN
(Full title of the Plan(s))
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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
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
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
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(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.
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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
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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.
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SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/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
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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
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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
