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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE __, 2000
REGISTRATION 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)
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XPEDIOR STOCK INCENTIVE PLAN
(Full title of the plan)
CAESAR J. BELBEL
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
XPEDIOR INCORPORATED
35 CORPORATE DRIVE, 4TH FLOOR
BURLINGTON, MASSACHUSETTS 01803
(Name and address of agent for service)
(781) 685-4642
(Telephone number, including area code, of agent for service)
Copies to:
Margaret G. Reed
Senior Vice President and General Counsel
Metamor Worldwide, Inc.
4400 Post Oak Parkway, Suite 1100
Houston, Texas 77027-3413
(713) 548-3400
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE FEE
------------------- ---------------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value....... 15,000,000 shares $15.6875 $235,312,500 $62,122.50
</TABLE>
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(1) This registration statement shall also cover any additional shares of
Common Stock which become issuable under the Plan being registered pursuant
to this registration statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and Exchange
Commission (the "Commission") 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 pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act").
(b) Our Quarterly Report on Form 10-Q for the period ended March 31, 2000,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act.
(c) The description of our common stock contained in our registration
statement on Form 8-A filed pursuant to Section 12 of the Exchange Act
and declared effective on December 14, 1999, including any amendment
or report filed for the purpose of updating such description.
All documents we have filed pursuant to Sections 13(a), 13(c), 14 and 15(d)
of the Exchange Act, after the date hereof and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein 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 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
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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.
Unless otherwise indicated below as being incorporated by reference to
another filing of ours with the Commission, each of the following exhibits is
filed herewith:
3.1 Certificate of Incorporation of Xpedior Incorporated, as amended
(filed with the Commission as Exhibit 3.1 to our registration
statement on Form S-1 (No. 333-89239) and incorporated herein by
reference)
3.2 Restated Bylaws of Xpedior Incorporated (filed with the Commission as
Exhibit 3.2 to our Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, and incorporated herein by reference)
4.1 Specimen Common Stock certificate (filed with the Commission as
Exhibit 4.1 to our registration statement on Form S-1 (No. 333-89239)
and incorporated herein by reference)
4.2 Xpedior Stock Incentive 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
(included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page to this
registration statement)
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UNDERTAKINGS
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(b) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this registration statement; and
(c) To include any material information with respect to the plan
of distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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 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.
(4) That, for the 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 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to 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.
(5) 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.
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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 14th day of June,
2000
By: /s/ DAVID N. CAMPBELL
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David N. Campbell
President, Chief Executive Officer,
and Director
(Principal Executive Officer)
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David N. Campbell, J. Brian Farrar and
Caesar J. Belbel or any of them, his true and lawful attorney-in-fact and agent,
with full power of substitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement on Form S-8, 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 ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated and on the 14th day of June, 2000.
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<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ DAVID N. CAMPBELL President, Chief Executive Officer and Director
--------------------------------------- (Principal Executive Officer)
David N. Campbell
/s/ J. BRIAN FARRAR Executive Vice President, Chief Operating Officer and
--------------------------------------- Director
J. Brian Farrar
/s/ STEVEN M. ISAACSON Senior Vice President and Chief Financial Officer
--------------------------------------- (Principal Financial and Accounting Officer)
Steven M. Isaacson
/s/ JAMES W. CROWNOVER Chairman of the Board of Directors
---------------------------------------
James W. Crownover
/s/ PETER T. DAMERIS Director
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Peter T. Dameris
/s/ ROBERT K. HATCHER Director
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Robert K. Hatcher
/s/ MARC J. SHAPIRO Director
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Marc J. Shapiro
/s/ JOHN M. WHITESIDE Director
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John M. Whiteside
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INDEX TO EXHIBITS
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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3.1 Certificate of Incorporation of Xpedior Incorporated, as amended
(filed with the Commission as Exhibit 3.1 to our registration
statement on Form S-1 (No. 333-89239) and incorporated herein by
reference)
3.2 Restated Bylaws of Xpedior Incorporated (filed with the Commission as
Exhibit 3.2 to our Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, and incorporated herein by reference)
4.1 Specimen Common Stock certificate (filed with the Commission as
Exhibit 4.1 to our registration statement on Form S-1 (No. 333-89239)
and incorporated herein by reference)
4.2 Xpedior Stock Incentive 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
(included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page to this
registration statement)
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