<PAGE> 1
As filed with the Securities and Exchange Commission on July 9, 1996
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
MCLEOD, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 58-421407240
- ---------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
221 THIRD AVE. SE, SUITE 500
CEDAR RAPIDS, IOWA 52401
-------------------------
(Address of principal executive offices)
MCLEOD TELECOMMUNICATIONS, INC. 1992 INCENTIVE STOCK OPTION PLAN,
MCLEOD, INC. 1993 INCENTIVE STOCK OPTION PLAN, AS AMENDED
MCLEOD, INC. 1995 INCENTIVE STOCK OPTION PLAN, AS AMENDED
MCLEOD, INC. 1996 EMPLOYEE STOCK OPTION PLAN
MCLEOD, INC. DIRECTORS STOCK OPTION PLAN, AS AMENDED AND RESTATED
MCLEOD, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
CLARK E. MCLEOD
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
MCLEOD, INC.
221 THIRD AVENUE SE, SUITE 500
CEDAR RAPIDS, IOWA 52401
(319) 364-0000
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(Name, address and telephone number, including area code, of agent for service)
Copy to:
JOSEPH G. CONNOLLY, JR., ESQ.
HOGAN & HARTSON L.L.P.
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share (2) offering price (1) registration fee (1)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CLASS A COMMON STOCK, PAR
VALUE $.01 12,112,679 (1) $12.05 $145,949,359 $50,327
=================================================================================================================================
</TABLE>
(1) 1,259,771 shares of McLeod, Inc. Class A Common Stock, par value $.01
per share ("Shares") are being registered pursuant to the McLeod
Telecommunications, Inc. 1992 Incentive Stock Option Plan,
4,440,408 Shares are being registered pursuant to the McLeod, Inc. 1993
Incentive Stock Option Plan, as amended, 337,500 Shares are being registered
pursuant to the McLeod, Inc. 1995 Incentive Stock Option Plan, as amended,
4,525,000 Shares are being registered pursuant to the McLeod, Inc. 1996
Employee Stock Option Plan, 550,000 Shares are being registered pursuant to the
McLeod, Inc. Directors Stock Option Plan, as amended and restated, and
1,000,000 Shares are being registered pursuant to the McLeod, Inc. Employee
Stock Purchase Plan.
(2) Estimated pursuant to Rule 457(c) and (h) solely for purposes of
calculating the amount of the registration fee. The proposed maximum offering
price per share was determined by calculating the weighted average exercise
price of (i) 7,166,979 Shares being offered under outstanding options at a
weighted average exercise price of $3.63, and (ii) 4,945,700 Shares being
offered at an exercise price of $24.25 based on the average of the high
and low prices per share of the Shares, on July 2, 1996, as reported on the
Nasdaq Stock Market.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with the
instructions to Part I of Form S-8, such documents will not be 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 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
McLeod, Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents filed by it with the
Commission:
(a) The Registrant's final prospectus dated June 10, 1996 as
filed with the Commission pursuant to Rule 424(b) of the
Securities Act, which contains audited financial statements
for the fiscal year ended December 31, 1995;
(b) The description of the Registrant's Class A Common Stock,
par value $.01 per share (the "Class A Common Stock"),
contained in the Registrant's Registration Statement on
Form 8-A filed with the Commission on May 24, 1996.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act"), prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part hereof from the date of filing of such documents or reports.
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. (The Class A Common Stock is registered under
Section 12 of the Exchange Act.)
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
<PAGE> 3
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify its directors, officers, employees and agents and its
former directors, officers, employees and agents and those who serve, at the
corporation's request, in such capacities with another enterprise, against
expenses (including attorneys' fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The DGCL provides,
however, that such person must have acted in good faith and in a manner such
person reasonably believed to be in (or not opposed to) the best interests of
the corporation and, in the case of a criminal action, such person must have
had no reasonable cause to believe his or her conduct was unlawful. In
addition, the DGCL does not permit indemnification in any action or suit by or
in the right of the corporation, where such person has been adjudged liable to
the corporation, unless, and only to the extent that, a court determines that
such person fairly and reasonably is entitled to indemnity for costs the court
deems proper in light of liability adjudication. Indemnity is mandatory to the
extent a claim, issue or matter has been successfully defended.
The Amended and Restated Certificate of Incorporation of the
Registrant contains provisions that provide that no director of the
Registrant shall be liable for breach of fiduciary duty as a director except
for (1) any breach of the directors' duty of loyalty to the Registrant or its
stockholders; (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of the law; (3) liability under
Section 174 of the DGCL; or (4) any transaction from which the director derived
an improper personal benefit. The Restated Certificate contains provisions
that further provide for the indemnification of directors and offices to the
fullest extent permitted by the DGCL. Under the Bylaws of the Registrant, the
Registrant is required to advance expenses incurred by an officer or director
in defending any such action if the director or officer undertakes to repay
such amount if it is determined that the director or officer is not entitled to
indemnification. In addition, the Registrant has entered into indemnity
agreements with each of its directors pursuant to which the Registrant has
agreed to indemnify the directors as permitted by the DGCL. The Registrant is
in the process of obtaining directors and officers liability insurance.
* * *
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE> 4
ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of Registrant (filed as Exhibit 3.1 to the Registrant's
Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.2 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to the Registrant's Registration Statement
on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.3 Form of Class A Common Stock Certificate (filed as Exhibit 4.1 to the Registrant's Registration Statement on
Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.4 McLeod Telecommunications, Inc. 1992 Incentive Stock Option Plan (filed as Exhibit 10.40 to the
Registrant's Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.5 McLeod, Inc. 1993 Incentive Stock Option Plan, as amended (filed as Exhibit 10.41 to the Registrant's
Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.6 McLeod, Inc. 1995 Incentive Stock Option Plan, as amended (filed as Exhibit 10.42 to the Registrant's
Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.7 McLeod, Inc. 1996 Employee Stock Option Plan (filed as Exhibit 10.55 to the Registrant's Registration Statement
on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.8 McLeod Telecommunications, Inc. Director Stock Option Plan (filed as Exhibit 10.43 to the Registrant's
Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.9 McLeod, Inc. Directors Stock Option Plan, as amended and restated (filed as Exhibit 10.52 to the Registrant's
Registration Statement on Form S-1 (File No. 333-3112), and incorporated herein by reference).
4.10 McLeod, Inc. Employee Stock Purchase Plan (filed as Exhibit 10.56 to the Registrant's Registration Statement on
Form S-1 (File No. 333-3112), and incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being registered.
23.1 Consent of McGladrey & Pullen, LLP.
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1 hereto).
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
24.1 Power of Attorney (included on signature pages).
99.1 Form of Indemnity Agreement between McLeod, Inc. and certain officers and directors of McLeod, Inc. (filed as
Exhibit 10.57 to the Registrant's Registration Statement on Form S-1 (File No. 333-3112), and incorporated
herein by reference).
</TABLE>
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;
(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;
(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)
do not apply if the Registration Statement is on Form S-3 or Form S-8 and 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 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.
(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 (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 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) The undertaking concerning indemnification is as set forth
under the response to Item 6.
<PAGE> 6
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 Cedar Rapids, State of Iowa on the 28th day of June,
1996.
McLEOD, INC.
BY: /s/ Clark E. McLeod
------------------------------
Clark E. McLeod
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Clark E. McLeod, Stephen C.
Gray and James L. Cram, jointly and severally, each in his own capacity, as
true and lawful attorneys-in-fact, with full power of substitution, for him and
in his name, place and stead, in any and all capacities, to sign any amendments
to this Registration Statement (including post-effective amendments), and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Clark E. McLeod Chairman, Chief Executive Officer and June 28, 1996
----------------------------------------- Director
Clark E. McLeod
/s/ Stephen C. Gray President, Chief Operating Officer and June 28, 1996
----------------------------------------- Director
Stephen C. Gray
/s/ James L. Cram Chief Accounting Officer and Director June 28, 1996
-----------------------------------------
James L. Cram
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Blake O. Fisher, Jr. Chief Financial Officer and June 28, 1996
----------------------------------------- Treasurer
Blake O. Fisher, Jr.
/s/ Russell E. Christiansen Director June 28, 1996
-----------------------------------------
Russell E. Christiansen
/s/ Thomas M. Collins Director June 28, 1996
-----------------------------------------
Thomas M. Collins
/s/ Lee Liu Director June 28, 1996
-----------------------------------------
Lee Liu
/s/ Paul D. Rhines Director June 28, 1996
-----------------------------------------
Paul D. Rhines
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of Registrant (filed as Exhibit *
3.1 to the Registrant's Registration Statement on Form S-1 (File No. 333-3112),
and incorporated herein by reference).
4.2 Amended and Restated Bylaws of the Registrant (filed as Exhibit 3.2 to the *
Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
4.3 Form of Class A Common Stock Certificate (filed as Exhibit 4.1 to the *
Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
4.4 McLeod Telecommunications, Inc. 1992 Incentive Stock Option Plan, as amended *
(filed as Exhibit 10.40 to the Registrant's Registration Statement on Form S-1
(File No. 333-3112), and incorporated herein by reference).
4.5 McLeod, Inc. 1993 Incentive Stock Option Plan, as amended (filed as Exhibit 10.41 *
to the Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
4.6 McLeod, Inc. 1995 Incentive Stock Option Plan, as amended (filed as Exhibit 10.42 *
to the Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
4.7 McLeod, Inc. 1996 Employee Stock Option Plan (filed as Exhibit 10.55 to the *
Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
4.8 McLeod Telecommunications, Inc. Director Stock Option Plan (filed as Exhibit *
10.43 to the Registrant's Registration Statement on Form S-1 (File No. 333-3112),
and incorporated herein by reference).
4.9 McLeod, Inc. Directors Stock Option Plan, as amended and restated (filed as *
Exhibit 10.52 to the Registrant's Registration Statement on Form S-1 (File No.
333-3112), and incorporated herein by reference).
4.10 McLeod, Inc. Employee Stock Purchase Plan (filed as Exhibit 10.56 to the *
Registrant's Registration Statement on Form S-1 (File No. 333-3112), and
incorporated herein by reference).
5.1 Opinion of Hogan & Hartson L.L.P. regarding the legality of the securities being
registered.
23.1 Consent of McGladrey & Pullen LLP.
</TABLE>
<PAGE> 9
<TABLE>
<S> <C> <C>
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed as Exhibit 5.1 *
hereto).
24.1 Power of Attorney (included on signature pages). *
</TABLE>
*Incorporated by reference
<PAGE> 1
July 9, 1996
Board of Directors
McLeod, Inc.
221 Third Avenue SE, Suite 500
Cedar Rapids, IA 52401
Gentlemen:
This firm has acted as special counsel to McLeod, Inc. (the "Company"),
a Delaware corporation, in connection with its registration, pursuant to a
registration statement on Form S-8 filed on or about the date hereof (the
"Registration Statement"), of 12,112,679 shares (the "Shares") of Class A
common stock, par value $.01 per share of the Company, issuable upon the
exercise of options granted under the McLeod Telecommunications, Inc. 1992
Incentive Stock Option Plan, as amended, the McLeod, Inc. 1993 Incentive Stock
Option Plan, the McLeod, Inc. 1995 Incentive Stock Option Plan, as amended, the
McLeod, Inc. 1996 Employee Stock Option Plan, the McLeod, Inc. Directors Stock
Option Plan, as amended and restated, and pursuant to the McLeod, Inc. Employee
Stock Purchase Plan (collectively, the "Plans"). This letter is furnished to
you pursuant to the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R.
Section 229.601(b)(5), in connection with such registration.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. A copy of the Plans, as certified by the Secretary
of the Company on the date hereof as
then being complete, accurate and in effect.
3. The Amended and Restated Certificate of Incorporation
of the Company, as certified by the Secretary of
State of the State of
<PAGE> 2
Board of Directors
July 9, 1996
Page 2
Delaware on May 2, 1996 and by the Secretary of the
Company on the date hereof as then being complete,
accurate and in effect.
4. The Amended and Restated Bylaws of the Company, as
certified by the Secretary of the Company on the date
hereof as then being complete, accurate and in
effect.
5. Resolutions and consents of the Board of Directors of
the Company adopted on September 21, 1992, March 31, 1993,
February 22, 1994, December 1, 1994, June 15, 1995,
January 25, 1996, March 28, 1996, April 25, 1996 and
June 27, 1996 as certified by the Secretary of the
Company on the date hereof as then being complete,
accurate and in effect relating to, among other things,
approval of the Plans and amendments thereto.
6. Resolutions and consents of the stockholders of the Company
adopted on September 21, 1992, March 31, 1993, February 22,
1994, December 1, 1994, June 29, 1995 and April 30, 1996,
and that certain Second Amendment to Shareholders'
Agreement dated as of April 28, 1995, each as certified
by the Secretary of the Company on the date hereof as
then being complete, accurate and in effect relating to,
among other things, approval of the Plans and amendments
thereto.
We have not, except as specifically identified above, made any
independent review or investigation of factual or other matters, including the
organization, existence, good standing, assets, business or affairs of
the Company or its subsidiaries. In our examination of the aforesaid
certificates, records, and documents, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity, accuracy
and completeness of all documents submitted to us as originals, and the
authenticity, accuracy and completeness and conformity with the original
documents of all documents submitted to us as certified, telecopied,
photostatic, or reproduced copies. We have assumed the authenticity and
accuracy of the foregoing certifications of corporate officers, on which we are
relying, and have made no independent investigations thereof. This opinion is
given in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware. We express no opinion herein
as to any other laws, statutes, regulations, or ordinances.
<PAGE> 3
Board of Directors
July 9, 1996
Page 3
Based upon, subject to, and limited by the foregoing, we are of the
opinion that the Shares, when issued and delivered in the manner and on the
terms contemplated in the Registration Statement and the Plans (with the
Company having received the consideration therefor, the form of which is in
accordance with applicable law), will be validly issued, fully paid and
non-assessable by the Company.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this letter, and should not be quoted in
whole or in part or otherwise be referred to, nor be filed with or furnished to
any governmental agency or other person or entity, without the prior written
consent of this firm.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving this consent, we do not thereby admit that we
are an "expert" within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
HOGAN & HARTSON L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 28, 1996, except
for Note 11 as to which the date is May 29, 1996, which appears on page F-2 of
the final prospectus of McLeod, Inc. as filed with the Securities and Exchange
Commission on June 10, 1996 pursuant to Rule 424(b) of the Securities Exchange
Act of 1934.
McGLADREY & PULLEN LLP
July 9, 1996
