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As filed with the Securities and Exchange Commission on February 26, 1999
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________________
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 54-1708481
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1700 Old Meadow Road
Third Floor
McLean, Virginia 22102
(Address of Principal Executive Offices, including zip code)
________________________
PRIMUS TELECOMMUNICATIONS GROUP, INCORPORATED
1998 RESTRICTED STOCK PLAN
(Full title of the Plan)
________________________
Robert Stankey, Esq.
General Counsel
Primus Telecommunications Group, Incorporated
1700 Old Meadow Road, 3rd Floor
McLean, Virginia 22102
(703) 902-2800
(Name, address and telephone number, including area code, of agent for service)
Copy to:
David B.H. Martin, 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>
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Amount Proposed maximum Proposed maximum Amount of
Title of securities to be offering price aggregate offering registration
to be registered Registered (1) per share (2) price (2) fee (2)
Common stock, par value $.01 per share 750,000 $11.75 $8,812,500 $2,450
=========================================================================================================================
</TABLE>
(1) The Registrant is registering 750,000 shares of its common stock, par value
$.01 per share ("Common Stock"), for issuance pursuant to its 1998 Restricted
Stock Plan.
(2) Estimated pursuant to Rule 457(c) and (h) of the Securities Act of 1933
solely for purposes of calculating the amount of registration fee.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I will be
sent or given to eligible persons participating in the Primus Telecommunications
Group, Incorporated 1998 Restricted Stock Plan (the "Plan") 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 under the Securities Act. These documents and
the documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute the prospectus as required by
Section 10(a) of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information
If Plan participants call or write to Robert Stankey, Esq., General
Counsel, Primus Telecommunications Group, Incorporated, 1700 Old Meadow Road,
3rd Floor, McLean, Virginia 22102, (703) 902-2800, we will provide them with
copies of the documents incorporated by reference in Item 3 of Part II of this
registration statement and other documents required to be delivered to Plan
participants pursuant to Rule 428(b) under the Securities Act, without charge.
The documents incorporated by reference in Item 3 of Part II of this
registration statement are incorporated by reference in the Section 10(a)
prospectus.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Primus Telecommunications Group, Incorporated (the "Registrant")
hereby incorporates by reference into this Registration Statement the following
documents filed by it with the Commission:
(a) The Registrant's Prospectus dated July 16, 1998 filed pursuant to
Rule 424(b) under the Securities Act.
(b) Periodic Reports filed on Form 10-K and Form 10-K/A for the
period ended December 31, 1997, and on Form 10-Q for the periods
ended March 31, June 30 and September 30, 1998.
(c) Current Reports on Form 8-K filed on February 6, April 10, April
23, June 23, and December 30, 1998 and January 14, 1999, and on
Form 8-K/A filed on January 5, January 7, February 6 and April
23, 1998 and February 4, 1999.
(d) The description of the Registrant's common stock, par value $0.01
per share, contained in the Registrant's registration statement
on Form S-1 filed on July 30, 1997, and the description of the
Registrant's Stockholder Rights Plan contained in the
Registrant's registration statement on Form 8-A filed on December
30, 1998.
In addition, all documents filed by the Registrant subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act"), and 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.
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Item 4. Description of Securities
Not applicable (the Common Stock is registered under Section 12 of
the Exchange Act).
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits each Delaware business corporation to indemnify its directors, officers,
employees and agents against liability for each such person's acts taken in his
or her capacity as a director, officer, employee or agent of the corporation if
such actions were taken in good faith and in a manner which he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action, if he or she had no reasonable cause to
believe his or her conduct was unlawful. Article X of the Registrant's Amended
and Restated By-Laws provides that the Registrant, to the full extent permitted
by Section 145 of the DGCL, shall indemnify all past and present directors or
officers of the Registrant and may indemnify all past or present employees or
other agents of the Registrant. To the extent that a director, officer, employee
or agent of the Registrant has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in such Article X, or in
defense of any claim, issue or matter therein, he or she shall be indemnified by
the Registrant against actually and reasonably incurred expenses in connection
therewith. Such expenses may be paid by the Registrant in advance of the final
disposition of the action upon receipt of an undertaking to repay the advance if
it is ultimately determined that such person is not entitled to indemnification.
As permitted by Section 102(b)(7) of the DGCL, Article 11 of the Registrant's
Amended and Restated Certificate of Incorporation provides that no director of
the Registrant shall be liable to the Registrant for monetary damages for breach
of fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) for the unlawful payment of dividends on or
redemption of the Registrant's capital stock, or (iv) for any transaction from
which the director derived an improper personal benefit. The Registrant
maintains a policy insuring it and its directors and officers against certain
liabilities, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed
Not applicable.
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Item 8. Exhibits
Exhibit
No. Exhibit
--- ----------------------------------------------------------------
4.1 Amended and Restated Certificate of Incorporation
(incorporated by reference to Exhibit 3.1 to the Registrant's
registration statement on Form S-8 filed with the Commission on
June 10, 1998).
4.2 Description of the Registrant's Stockholder Rights Plan
(incorporated by reference to Exhibit 4.1 to the Registrant's
registration statement on Form 8-A filed with the Commission on
December 30, 1998).
5 Opinion of Robert Stankey, Esq. as to the validity of the
securities registered hereunder (including the consent of Mr.
Stankey).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Robert Stankey, Esq. (included in Exhibit 5).
24 Power of Attorney (see signature page).
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 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. 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
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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; 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) do
not apply if the registration statement is on Form S-3, Form S-8
or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in the
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 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 further undertakes 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 the
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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 existing provisions or
arrangements whereby the Registrant may indemnify a director, officer
or controlling
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person of the Registrant against liabilities arising under the
Securities Act, 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
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 McLean, Virginia, on this 26th day of February, 1999.
PRIMUS TELECOMMUNICATIONS
GROUP INCORPORATED
By: /s/ K. Paul Singh
-----------------------------
K. Paul Singh
President, Chairman and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below on
this Registration Statement hereby constitutes and appoints K. Paul Singh and
Neil L. Hazard and each of them, with full power to act without the other, 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
capacities (until revoked in writing), to sign any and all amendments (including
post-effective amendments thereto) to this Form S-8 Registration Statement of
Primus Telecommunications Group, Incorporated 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
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary fully to all intents and purposes as
he might or could do in person thereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their 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 by the following persons in the
capacities indicated on the 26th day of February, 1999.
Signature Title
- --------- -----
/s/ K. Paul Singh President, Chairman and Chief Executive
- --------------------- Officer (Principal Executive Officer)
K. Paul Singh
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/s/ Neil L. Hazard Executive Vice President and Chief Financial
- --------------------- Officer (Principal Financial Officer and
Neil L. Hazard Principal Accounting Officer)
/s/ John F. DePodesta Executive Vice President and Director
- ---------------------
John F. DePodesta
/s/ Herman Fialkov Director
- ---------------------
Herman Fialkov
/s/ John Puente Director
- ---------------------
John Puente
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EXHIBIT INDEX
Exhibit
No. Exhibit
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4.1 Amended and Restated Certificate of Incorporation.
(incorporated by reference to Exhibit 3.1 to the Registrant's
registration statement on Form S-8 filed with the Commission on
June 10, 1998).
4.2 Description of the Registrant's Stockholder Rights Plan
(incorporated by reference to Exhibit 4.1 to the Registrant's
registration statement on Form 8-A filed with the Commission on
December 30, 1998).
5 Opinion of Robert Stankey, Esq. as to the validity of the
securities registered hereunder (including the consent of Mr.
Stankey).
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Robert Stankey, Esq. (included in Exhibit 5).
24 Power of Attorney (see signature page).
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Exhibit 5
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LEGAL OPINION OF ROBERT STANKEY, ESQ.
February 26, 1999
Board of Directors
1700 Old Meadow Road, 3rd Floor
McLean, Virginia 22102
Re: Primus Telecommunications Group, Incorporated
1998 Restricted Stock Plan
Registration Statement on Form S-8
Gentlemen and Ladies:
I am the General Counsel and Secretary of Primus Telecommunications
Group, Incorporated, a Delaware corporation (the "Company"), and I have acted as
legal counsel to the Company in connection with the filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement"), relating to
750,000 shares (the "Shares") of the Company's common stock, par value $.01 per
share (the "Common Stock"), issuable under the Company's 1998 Restricted Stock
Plan (the "Plan").
In my capacity as General Counsel of the Company, I have examined and
am familiar with (i) the Registration Statement; (ii) the Plan; (iii) the
Restated Certificate of Incorporation and the Amended and Restated By-laws of
the Company, each as amended to date; (iv) certain resolutions adopted by the
Board of Directors of the Company relating to the issuance of the Shares
pursuant to the Plan and certain related matters; and (v) such agreements,
certificates of public officials, certificates of officers or representatives of
the Company and others and such other documents, certificates and records as I
have deemed necessary or appropriate as a basis for the opinions set forth
herein. In such examination, I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. As to any facts
material to the opinion expressed herein that I have not independently
established or verified, I have relied upon statements and representations of
officers and other representatives of the Company and others.
Based upon and subject to the foregoing, I am of the opinion that the
Shares have been duly authorized for issuance and, when the Shares have been
paid for and certificates therefor have been issued and delivered in accordance
with the terms of the Plan, the Shares will be validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion letter as Exhibit 5 to
the Registration Statement. In giving this opinion and consent, I do not admit
that I am an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
/s/ Robert Stankey, Esq.
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Exhibit 23.1
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CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration
Statement of Primus Telecommunications Group, Incorporated (the "Company") on
Form S-8 of our report dated February 12, 1998, except for note 15 as to which
the date is March 8, 1998, appearing in the Company's Annual Report on Form 10-K
for the year ended December 31, 1997.
/s/ DELOITTE & TOUCHE LLP
Washington, D.C.
February 24, 1999
