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As filed with the Securities and Exchange Commission on September 28, 2000
FILE 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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XPEDIOR INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 76-0556713
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
ONE NORTH FRANKLIN, SUITE 1500
CHICAGO, ILLINOIS 60606
(Address of principal executive offices, including zip code)
XPEDIOR INCORPORATED EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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CAESAR J. BELBEL
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
XPEDIOR INCORPORATED
35 CORPORATE DRIVE, 4TH FLOOR
BURLINGTON, MASSACHUSETTS 01803
(781) 685-4642
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title Of Securities Amount Proposed Maximum Proposed Maximum Amount Of
To Be To Be Offering Price Per Aggregate Offering Registration
Registered Registered Share(1) Price Fee
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<S> <C> <C> <C> <C>
Common Stock, Par 2,000,000 shares $4.15625 $8,312,500 $2,195
Value $0.01
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee on the basis of
the average of the high and low prices of Xpedior Incorporated common
stock, par value $0.01 per share, as reported on the Nasdaq National Market
on September 22, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of this Form
S-8 and the statement of availability of information of Xpedior Incorporated
(the "Registrant") and other information required by Item 2 of this Form will be
sent or given to employees as specified by Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. The Registrant shall maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, the Registrant shall furnish to
the Commission or its staff a copy or copies of any or all of the documents
included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission (the "SEC") are incorporated by reference herein and shall be deemed
a part hereof:
(a) Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999 filed with the SEC on March 30, 2000.
(b) Our Quarterly Reports on Form 10-Q for the quarters ended March 31,
2000 and June 30, 2000 filed with the SEC on May 15, 2000 and August
14, 2000, respectively.
(c) Our Current Report on Form 8-K filed with the SEC on June 28, 2000.
(d) The description of our common stock contained in our Registration
Statement on Form 8-A filed on December 14, 1999, including any
amendment or report filed for the purpose of updating such
description.
All other reports and other documents we filed pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of this Registration
Statement and prior to the termination of this offering shall be incorporated by
reference into this Registration Statement and shall be deemed to be a part of
this Registration Statement from the date of filing of such reports and
documents. Any statement contained herein or in a document incorporated by
reference shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this
Registration Statement or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such 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.
Our Certificate of Incorporation, as amended, a copy of which is filed as
Exhibit 3.1 to our registration statement on Form S-1 (No. 333-89239), provides
that none of our directors shall be personally liable to us or our stockholders
for monetary damages for any breach of fiduciary duty by such a director as a
director, except for liability to the extent provided by applicable law (1) for
any breach of the director's duty of loyalty to us or our stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (3) for unlawful payments of dividends or unlawful
stock repurchases or redemptions as provided under Section 174 of the Delaware
General Corporation Law ("DGCL") or (4) for any transaction from which the
director derived an improper personal benefit.
Section 145 of the DGCL authorizes a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether
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civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation), by reason of the fact that the person is or was
an officer or director of such corporation, or is or was serving at the request
of that corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if he acted in good faith and in a manner he
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 his conduct was unlawful. A Delaware corporation may
indemnify past or present officers and directors of that corporation or of
another corporation or other enterprise at the former corporation's request, in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if that person is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify him against the
expenses (including attorneys' fees) which he actually and reasonably incurred
in connection therewith. Section 145 further provides that any indemnification
shall be made by the corporation only as authorized in each specific case upon a
determination by (i) the stockholders, (ii) the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding or (iii) independent counsel if a quorum of disinterested
directors so directs. Section 145 provides that indemnification pursuant to its
provision is not exclusive of other rights of indemnification to which a person
may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Section 145 of the DGCL also empowers us to purchase and maintain insurance
on behalf of any person who is or was an officer or director of us against
liability asserted against or incurred by him in any such capacity, whether or
not we would have the power to indemnify such officer or director against such
liability under the provisions of Section 145.
In addition, we have entered into indemnification agreements with our
directors and officers containing provisions which are in some respects broader
than the specific indemnification provisions contained in the DGCL. The
indemnification agreements may require us, among other things, to indemnify our
directors against liabilities that may arise by reason of their status or
service as directors, other than liabilities arising from willful misconduct of
culpable nature, to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified, and to obtain
directors' insurance if available on reasonable terms.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
The following exhibits are filed as part of the Registration Statement:
EXHIBIT
4.1 Specimen Common Stock certificate (incorporated by reference to Exhibit 4.1
to our Registration Statement on Form S-1 (No. 333-89239).
4.2 Xpedior Incorporated Employee Stock Purchase Plan.
5.1 Opinion of Caesar J. Belbel, General Counsel to Xpedior Incorporated.
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23.1 Consent of Ernst & Young LLP.
23.2 Consent of Caesar J. Belbel, General Counsel to Xpedior Incorporated
(contained in the opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Powers of Attorney (included on the signature page to this Registration
Statement under the caption "Power of Attorney").
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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 paragraphs (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 with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference 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 which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
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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 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 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 Chicago, State of Illinois, on the 28th day of
September, 2000.
XPEDIOR INCORPORATED
By: /s/ David N. Campbell
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David N. Campbell
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
hereby authorizes and constitutes David N. Campbell, J. Brian Farrar and Caesar
J. Belbel, and each of them singly, his true and lawful attorneys with full
power to them, and each of them singly, to sign for him and in his name in the
capacities indicated below any and all amendments (including post-effective
amendments) to this registration statement and to file the same, with exhibits
thereto, and other documents in connection therewith, and he hereby ratifies and
confirms his signature as it may be signed by said attorneys, or any of them, to
any and all such amendments.
SIGNATURE CAPACITY IN WHICH SIGNED DATE
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/s/ David N. Campbell Chief Executive Officer and September 28, 2000
----------------------- Chairman of the Board (Principal
David N. Campbell Executive Officer)
/s/ J. Brian Farrar President, Chief Operating September 28, 2000
----------------------- Officer and Director
J. Brian Farrar
/s/ Thomas E. Werner Senior Vice President and Chief September 28, 2000
----------------------- Financial Officer (Principal
Thomas E. Werner Financial and Accounting Officer)
/s/ James W. Crownover Vice Chairman of the Board September 28, 2000
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James W. Crownover
/s/ William L. Schrader Director September 28, 2000
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William L. Schrader
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/s/ Harold S. Wills Director September 28, 2000
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Harold S. Wills
/s/ Marc J. Shapiro Director September 28, 2000
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Marc J. Shapiro
/s/ John M. Whiteside Director September 28, 2000
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John M. Whiteside
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EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT NAME
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4.1 Specimen Common Stock certificate (incorporated by reference
to Exhibit 4.1 to our Registration Statement on Form S-1 (No.
333-89239).
4.2 Xpedior Incorporated Employee Stock Purchase Plan.
5.1 Opinion of Caesar J. Belbel, General Counsel to Xpedior
Incorporated.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Caesar J. Belbel, General Counsel to Xpedior
Incorporated (contained in the opinion filed as Exhibit 5.1
to this Registration Statement).
24.1 Powers of Attorney (included on the
signature page to this Registration
Statement under the caption "Power of
Attorney").
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