As filed with the Securities and Exchange Commission on September 26, 2002
Registration No. 333-__________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
McLEODUSA INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 42-1407240
------------------------------------ --------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
6400 C Street SW, P.O. Box 3177
Cedar Rapids, Iowa 52406-3177
(Address of Principal Executive Offices)
McLeodUSA Incorporated 2002 Omnibus Equity Plan
(Full Title of Plan)
G. Kenneth Burckhardt
Executive Vice President and Chief Financial Officer
McLeodUSA Incorporated
6400 C Street SW, P.O. Box 3177
Cedar Rapids, Iowa 52406-3177
(319) 364-0000
(Name, Address and Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
=================================================================================================================================
Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per unit aggregate offering price registration fee
----------------------------------------------------------------------------------------------------------------------------------
Class A Common Stock, 65,173,797 (1) $0.325 (2) $21,181,484.03 (2) $1,950
$0.01 par value
==================================================================================================================================
(1) Also registered hereby are such additional and indeterminable number
of shares of Class A Common Stock as may become issuable due to
adjustments for changes resulting from stock dividends, stock splits
and similar changes.
(2) Estimated solely for the purpose of calculating the registration fee
and, pursuant to Rules 457(h)(1) and 457(c) under the Securities Act
of 1933, based upon the average of the high and low sale prices of the
Class A Common Stock, $0.01 par value, of McLeodUSA Incorporated on
the Nasdaq National Market on September 25, 2002.
INTRODUCTION
This Registration Statement on Form S-8 is filed by McLeodUSA
Incorporated, a Delaware corporation (the "Company"), relating to
65,173,797 shares of its Class A common stock, par value $0.01 per share,
issuable to employees, directors and consultants of the Company or its
subsidiaries eligible under McLeodUSA 2002 Omnibus Equity Plan (the
"Plan").
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Note to Part 1 of Form
S-8 and Rule 424 of the Securities Act of 1933, as amended (the "Securities
Act").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Note to Part 1 of Form
S-8 and Rule 424 of the Securities Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents heretofore filed with the Securities and
Exchange Commission (the "Commission") by the Company are incorporated
herein by reference (Commission File No. 0-20763):
(a) The Company's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 2002, filed on April 19, 2002.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2002, filed on May 15, 2002.
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2002, filed on August 14, 2002.
(c) The Company's Current Reports on Form 8-K filed on February
14, April 22, April 29, May 1, August 6 and August 15, 2002.
(d) The description of the Company's Class A common stock set
forth in the Company's registration statement filed under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on Form
8-A on May 24, 1996, including any amendment or report filed with the
Commission for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the
respective dates 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 incorporated or
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.
On April 29, 2002, the Company announced that it had appointed
Deloitte & Touche LLP to replace Arthur Andersen LLP ("Andersen") as the
Company's independent public accountants. The Company's consolidated
balance sheets as of December 31, 2001 and December 31, 2000, and the
related consolidated statements of operations, shareholders' equity and
cash flows for each of the three years in the period ended December 31,
2001 incorporated by reference in this Registration Statement have been
audited by Andersen, as stated in its report dated April 16, 2002, which is
incorporated by reference herein. After reasonable efforts, the Company has
been unable to obtain Andersen's consent to the incorporation by reference
into this Registration Statement of its report with respect to the
Company's financial statements. Under these circumstances, Rule 437a under
the Securities Act of 1933 permits the Company to file this Registration
Statement without a written consent from Andersen. The absence of such
consent may limit recovery by investors on certain claims. In particular,
and without limitation, investors may not be able to assert claims against
Andersen under Section 11 of the Securities Act. In addition, the ability
of Andersen to satisfy any claims (including claims arising from Andersen's
provision of auditing and other services to the Company) may be limited as
a practical matter due to recent events regarding Andersen.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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 non-derivative 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 an 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 Second Amended and Restated Certificate of Incorporation of
the Company (the "McLeodUSA Certificate") contains provisions that provide
that no director of the Company shall be liable for breach of fiduciary
duty as a director except for (1) any breach of the director's duty of
loyalty to the Company 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 McLeodUSA Certificate contains provisions that further provide for the
indemnification of directors and officers to the fullest extent permitted
by the DGCL. Under the Bylaws of the Company, the Company 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 Company has entered into indemnity agreements with its
directors pursuant to which McLeodUSA has agreed to indemnify the directors
as permitted by the DGCL. The Company has obtained directors' and officers'
liability insurance against certain liabilities, including liabilities
under the Securities Act.
In addition to the above, the Company also maintains indemnity
insurance pursuant to which officers and directors are indemnified or
insured against liability or loss under certain circumstances, which may
include liability or related loss under the Securities Act and the Exchange
Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
A list of exhibits included as part of this Registration Statement
is set forth in the Exhibit Index appearing elsewhere herein and is
incorporated herein by reference.
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.
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 a 20 percent change
in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the
effective 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) above 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 undersigned registrant pursuant to
Section 13 or 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.
(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 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) 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 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 Cedar Rapids, State of Iowa, on
this 26th day of September, 2002.
McLEODUSA INCORPORATED
By: /s/ G. Kenneth Burckhardt
---------------------------------
G. Kenneth Burckhardt
Executive Vice President and Chief
Financial Officer
KNOW ALL PEOPLE BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Chris A. Davis and G.
Kenneth Burckhardt, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution, for him or her
and in his or her name, place and stead, in any and all capacities, 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 attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming that all that said attorneys-in-fact and agents, or any of them
or their or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on this 13th day of September, 2002.
Signature Title
/s/ Chris A. Davis
-------------------------------- Chairman of the Board and Chief Executive
Chris A. Davis Officer
/s/ Stephen C. Gray
-------------------------------- President and Director
Stephen C. Gray
/s/ G. Kenneth Burckhardt Executive Vice President and Chief
-------------------------------- Financial Officer and Director
G. Kenneth Burckhardt
/s/ Thomas D. Bell, Jr.
-------------------------------- Director
Thomas D. Bell, Jr.
/s/ Jeffrey D. Benjamin
-------------------------------- Director
Jeffrey D. Benjamin
/s/ Edward D. Breen
-------------------------------- Director
Edward D. Breen
/s/ Thomas M. Collins
-------------------------------- Director
Thomas M. Collins
/s/ Theodore J. Forstmann
-------------------------------- Director
Theodore J. Forstmann
/s/ Dale F. Frey
-------------------------------- Director
Dale F. Frey
/s/ James E. Hoffman
--------------------------------- Director
James E. Hoffman
/s/ Thomas H. Lister
-------------------------------- Director
Thomas H. Lister
/s/ Farid Suleman
------------------------------- Director
Farid Suleman
/s/ Juan Villalonga
------------------------------ Director
Juan Villalonga
INDEX TO EXHIBITS
Exhibit Number Description
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom
(Illinois)
23.1 Consent of Arthur Andersen LLP (omitted pursuant to
Rule 437a)
*23.2 Consent of Skadden, Arps, Slate, Meagher & Flom
(Illinois) (included in Exhibit 5.1)
24 Powers of Attorney (included on signature page to this
Registration Statement)
*99.1 McLeodUSA 2002 Omnibus Equity Plan
--------------
* Filed herewith.