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As filed with the Securities and Exchange Commission on August 30, 1996
Registration No. 333-
________________________________________________________________________
S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BOSTON COMMUNICATIONS GROUP, INC.
(Exact name of issuer as specified in its charter)
Massachusetts 04-3026859
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 Sylvan Road, Woburn, Massachusetts 01801
(Address of principal executive offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
George K. Hertz
Boston Communications Group, Inc.
100 Sylvan Road
Woburn, Massachusetts 01801
(Name and address of agent for service)
(617) 692-7000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount to Maximum Maximum Amount of
to be be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
Common Stock, 1,264,792 $15.375 $19,446,177 $6,705.63
$.01 par shares
value
__________________________
(1) Estimated solely for the purpose of calculating the registration fee,
and based on the average of the high and low prices as reported by the Nasdaq
National Market on August 26, 1996, in accordance with Rules 457(c) and (h)
of the Securities Act of 1933, as amended.
Page 1 of __ pages.
Exhibit Index begins on page _.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1996 Stock Option Plan of Boston Communications Group,
Inc., a Massachusetts corporation (the "Registrant"), pursuant to Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(2) The description of the Common Stock, $.01 par value per share ("Common
Stock"), contained in a registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-
effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 6 of the Company's Restated Articles of Organization
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provides that the Company shall indemnify each person who is or was a director,
officer, employee or other agent of the Company, and each person who is or was
serving at the request of the Company as a director, trustee, officer, employee
or other agent of another organization in which it directly or indirectly owns
shares or of which it is directly or indirectly a creditor, against all
liabilities, costs and expenses reasonably incurred by any such persons in
connection with the defense or disposition of or otherwise in connection with or
resulting from any action, suit or other proceeding in which they may be
involved by reason of being or having been such a director, officer, employee,
agent or trustee, or by reason of any action taken or not taken in such
capacity, except with respect to any matter as to which such person shall have
been finally adjudicated by a court of competent jurisdiction not to have acted
in good faith in the reasonable belief that his or her action was in the best
interests of the Company. The provisions in the Company's articles pertaining to
indemnification may not be amended and no provision inconsistent therewith may
be adopted without the approval of either the Board of Directors or the holders
of at least a majority of the voting power of the Company. Section 67 of Chapter
156B of the Massachusetts Business Corporation Law authorizes a corporation to
indemnify its directors, officers, employees and other agents unless such person
shall have been adjudicated in any proceeding not to have acted in good faith in
the reasonable belief that such action was in the best interests of the
corporation.
The Company maintains directors' and officers' liability insurance for the
benefit of its directors and certain of its officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
1. The Registrant hereby undertakes
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
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(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; 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 (i) and (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.
(b) 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.
(c) 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.
2. The 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 in the initial bona fide offering thereof.
3. 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
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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 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 of 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 Boston, Massachusetts, on this 26th day of August, 1996.
BOSTON COMMUNICATIONS GROUP, INC.
By: /s/ George K. Hertz
George K. Hertz
President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Boston Communications Group,
Inc. hereby severally constitute and appoint George K. Hertz, Frederick E. von
Mering and Thomas L. Barrette, Jr., and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names, in the capacities indicated below, the Registration Statement on
Form S-8 filed herewith and any and all amendments to said Registration
Statement and generally to do all such things in our name and behalf in our
capacities as officers and directors to enable Boston Communications Group,
Inc., to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and any and all amendments thereto.
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WITNESS our hands and common seal on the date set forth below.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of August 26, 1996.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ George K. Hertz President and Chief
George K. Hertz Executive Officer
/s/ Frederick E. von Mering Vice President - Finance
Frederick E. von Mering and Administration (Principal
Financial and Accounting
Officer)
/s/ Paul J. Tobin Chairman of the Board
Paul J. Tobin of Directors
/s/ Brian E. Boyle Vice Chairman of the
Brian E. Boyle Board of Directors
/s/ Jerrold D. Adams Director
Jerrold D. Adams
/s/ Craig L. Burr Director
Craig L. Burr
/s/ James L. McLean Director
James L. McLean
/s/ Paul R. Gudonis Director
Paul R. Gudonis
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Page Number
<S> <C>
3.1 Restated Articles of Organization.
3.2 By-Laws.(1) --
4.1 Specimen Certificate of Common Stock of the --
Registrant.(2)
5.1 Opinion of Hale and Dorr.
23.1 Consent of Hale and Dorr (included in --
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP
23.3 Consent of Ernst & Young LLP
24.1 Power of Attorney (included in the signature --
pages of this Registration Statement).
</TABLE>
_______________________
(1) Incorporated herein by reference to Exhibit 3.3 to the
Registrant's Registration Statement on Form S-1
(File No. 333-4128).
(2) Incorporated herein by reference to Exhibit 4.1 to the
Registrant's Registration Statement on Form S-1
(File No. 333-4128).
1
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Exhibit 3.1
THE COMMONWEALTH OF MASSACHUSETTS
William Francis Galvin
Secretary of the Commonwealth
One Ashburton Place, Boston, Massachusetts 02108-1512
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
We, George K. Hertz , President and Alan J. Bouffard , Clerk of
Boston Communications Group, Inc. , located at
(Exact name of corporation)
One McKinley Square, Boston, MA 02109 do hereby certify that the
(Street address of corporation Massachusetts)
following Restatement of the Articles of Organization was duly adopted
at a meeting held on April 26, 1996 by a vote of the directors/or:
330,500 shares of Series A Common of 330,500 shares outstanding
375 shares of Series A Preferred of 375 shares outstanding
275 shares of Class B Series 1 Preferred of 275 shares outstanding
200 shares of Class B Series 2 Preferred of 200 shares outstanding, and
30,203 shares of Series D Common of 35,950 shares outstanding
(type, class & series, if any)
being at least two-thirds of each type, class or series outstanding and entitled
to vote thereon and of each type, class or series of stock whose rights are
adversely affected thereby:
ARTICLE I
The name of the corporation is:
Boston Communications Group, Inc.
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ARTICLE II
The purpose of the corporation is to engage in the following business
activities:
To operate, own or manage communications businesses; and to engage in any
and all other businesses and activities permitted to a corporation organized
under Massachusetts General laws, Chapter 156B.
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ARTICLE III
State the total number of shares and par value, if any, of each class of stock
which the corporation is authorized to issue:
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
Common: Common: 35,000,000 $.01
Preferred: Preferred: 2,000,000 $.01
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class, if
shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
See Attachment 4.
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None.
ARTICLE VI
Other lawful provisions, if any, for the conduct and regulation of the business
and affairs of the corporation, for its voluntary dissolution, or for limiting,
defining, or regulating the powers of the corporation, or of its directors or
stockholders, or of any class of stockholders:
See Attachment 6.
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ARTICLE VII
The effective date of the restated Articles of Organization of the corporation
shall be the date approved and filed by the Secretary of the Commonwealth. If a
later effective date is desired, specify such date which shall not be more than
thirty days after the date of filing.
ARTICLE VIII
The information contained in Article VIII is not a permanent part of the
Articles of Organization.
a. The street address of the principal office of the
corporation in Massachusetts is:
One McKinley Square, Boston, MA 02109
b. The name, residential address and post office address of
each director and officer of the corporation is as follows:
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President:
Treasurer: See Attachment VIII.
Clerk:
Directors:
c. The fiscal year (i.e., tax year) of the corporation
shall end on the last day of the month of: December 31
d. The name and business address of the resident agent, if
any, of the corporation is: N.A.
We further certify that the foregoing Restated Articles of Organization affect
no amendments to the Articles of Organization of the corporation as heretofore
amended, except amendments to the following articles. Briefly describe
amendments below:
All references to Class A Preferred Stock and to Class B Series I and
Series II Preferred Stock, all of which have been converted into Common
Stock, have been eliminated. The Board of Directors has been authorized
to issue, from time to time, 2,000,000 shares of Preferred Stock.
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SIGNED UNDER THE PENALTIES OF PERJURY, this 21st day of June, 1996.
/s/ George K. Hertz , President
/s/ Alan J. Bouffard , Clerk
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Attachment 4
ARTICLE IV
The total number of shares of all classes of stock which the
corporation shall have authority to issue is 37,000,000 shares, consisting of
(i) 35,000,000 shares of Common Stock, $0.01 par value per share ("Common
Stock"), and (ii) 2,000,000 shares of Preferred Stock, $0.01 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of the holders
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of Directors
upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to one vote
for each share held at all meetings of stockholders (and written actions in lieu
of meetings). There shall be no cumulative voting.
3. Dividends. Dividends may be declared and paid on the Common Stock
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of shares
for the purposes of voting by classes unless expressly provided.
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Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issue of the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by Chapter 156B of the Massachusetts General Laws. Without
limiting the generality of the foregoing, the resolutions providing for issuance
of any series of Preferred Stock may provide that such series shall be superior
or rank equally or be junior to the Preferred Stock of any other series to the
extent permitted by law. No vote of the holders of the Preferred Stock or Common
Stock shall be a prerequisite to the issuance of any shares of any series of the
Preferred Stock authorized by and complying with the conditions of the Articles
of Organization, the right to have such vote being expressly waived by all
present and future holders of the capital stock of the corporation.
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Attachment 6. Other lawful provisions, if any, for the conduct and regulation of
the business and affairs of the corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the corporation, or of its
directors or stockholders, or of any class of stockholders:
6A. LIMITATION OF DIRECTOR LIABILITY
Except to the extent that Chapter 156B of the Massachusetts General
Laws prohibits the elimination or limitation of liability of directors for
breaches of fiduciary duty, no director of the corporation shall be personally
liable to the corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall apply
to or have any effect on the liability or alleged liability of any director of
the corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
6B. INDEMNIFICATION
1. Actions, Suits and Proceedings. The corporation shall indemnify
each 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, by reason of the fact that he is or
was, or has agreed to become, a director or officer of the corporation, or is or
was serving, or has agreed to serve, at the request of the corporation, as a
director or officer of, or in a similar capacity with, another organization or
in any capacity with respect to any employee benefit plan of the corporation
(all such persons being referred to hereafter as an "Indemnitee"), or by reason
of any action alleged to have been taken or omitted in such capacity, against
all expenses (including attorneys' fees), judgments and fines incurred by him or
on his behalf in connection with such action, suit or proceeding and any appeal
therefrom, unless the Indemnitee shall be finally adjudicated in such action,
suit or proceeding not to have acted in good faith in the reasonable belief that
his action was in the best interests of the corporation or, to the extent such
matter relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Notwithstanding anything to the contrary in this Article, except as set forth in
Section 6 below, the corporation shall not indemnify an Indemnitee seeking
indemnification in connection with a proceeding (or part thereof) initiated by
the Indemnitee unless the initiation thereof was approved by the Board of
Directors of the corporation. Notwithstanding anything to the contrary in this
Article, the corporation shall not indemnify an Indemnitee to the extent such
Indemnitee is reimbursed from the proceeds of insurance, and in the event the
corporation makes any indemnification payments to an Indemnitee and the
Indemnitee is
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subsequently reimbursed from the proceeds of insurance, such Indemnitee shall
promptly refund such indemnification payments to the corporation to the extent
of such insurance reimbursement.
2. Settlements. The right to indemnification conferred in this Article
shall include the right to be paid by the corporation for amounts paid in
settlement of any such action, suit or proceeding and any appeal therefrom, and
all expenses (including attorneys' fees) incurred in connection with such
settlement, pursuant to a consent decree or otherwise, unless and to the extent
it is determined pursuant to Section 5 below that the Indemnitee did not act in
good faith in the reasonable belief that his action was in the best interests of
the corporation or, to the extent such matter relates to service with respect to
an employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan.
3. Notification and Defense of Claim. As a condition precedent to his
right to be indemnified, the Indemnitee must notify the corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the corporation is so
notified, the corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
corporation to the Indemnitee of its election so to assume such defense, the
corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 3. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the corporation and the Indemnitee in the conduct of the defense of such
action or (iii) the corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the corporation, except
as otherwise expressly provided by this Article. The corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above.
4. Advance of Expenses. Subject to the provisions of Section 5 below,
in the event that the corporation does not assume the defense pursuant to
Section 3 of this Article of any action, suit, proceeding or investigation of
which the corporation
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receives notice under this Article, any expenses (including attorneys' fees)
incurred by an Indemnitee in defending a civil or criminal action, suit,
proceeding or investigation or any appeal therefrom shall be paid by the
corporation in advance of the final disposition of such matter; provided,
however, that the payment of such expenses incurred by an Indemnitee in advance
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the corporation as authorized in this Article.
Such undertaking shall be accepted without reference to the financial ability of
the Indemnitee to make such repayment.
5. Procedure for Indemnification. In order to obtain indemnification
or advancement of expenses pursuant to Section 1, 2 or 4 of this Article, the
Indemnitee shall submit to the corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses shall be made promptly, and in
any event within 60 days after receipt by the corporation of the written request
of the Indemnitee, unless the corporation determines within such 60-day period
that the Indemnitee did not meet the applicable standard of conduct set forth in
Section 1 or 2, as the case may be. Such determination shall be made in each
instance by (a) a majority vote of a quorum of the directors of the corporation,
(b) a majority vote of a quorum of the outstanding shares of stock of all
classes entitled to vote for directors, voting as a single class, which quorum
shall consist of stockholders who are not at that time parties to the action,
suit or proceeding in question, (c) independent legal counsel (who may, to the
extent permitted by law, be regular legal counsel to the corporation), or (d) a
court of competent jurisdiction.
6. Remedies. The right to indemnification or advances as granted by
this Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction if the corporation denies such request, in whole or in part, or if
no disposition thereof is made within the 60-day period referred to above in
Section 5. Unless otherwise required by law, the burden of proving that the
Indemnitee is not entitled to indemnification or advancement of expenses under
this Article shall be on the corporation. Neither the failure of the corporation
to have made a determination prior to the commencement of such action that
indemnification is proper in the circumstances because the Indemnitee has met
the applicable standard of conduct, nor an actual determination by the
corporation pursuant to Section 5 that the Indemnitee has not met such
applicable standard of conduct, shall be a defense to the action or create a
presumption that the Indemnitee has not met the applicable standard of conduct.
The Indemnitee's expenses (including attorneys' fees) incurred in connection
with
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successfully establishing his right to indemnification, in whole or in part, in
any such proceeding shall also be indemnified by the corporation.
7. Subsequent Amendment. No amendment, termination or repeal of this
Article or of the relevant provisions of Chapter 156B of the Massachusetts
General Laws or any other applicable laws shall affect or diminish in any way
the rights of any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
8. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or directors or otherwise, both as to action in his official capacity and as to
action in any other capacity while holding office for the corporation, and shall
continue as to an Indemnitee who has ceased to be a director or officer, and
shall inure to the benefit of the estate, heirs, executors and administrators of
the Indemnitee. Nothing contained in this Article shall be deemed to prohibit,
and the corporation is specifically authorized to enter into, agreements with
officers and directors providing indemnification rights and procedures different
from those set forth in this Article. In addition, the corporation may, to the
extent authorized from time to time by its Board of Directors, grant
indemnification rights to other employees or agents of the corporation or other
persons serving the corporation and such rights may be equivalent to, or greater
or less than, those set forth in this Article.
9. Partial Indemnification. If an Indemnitee is entitled under any
provision of this Article to indemnification by the corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
10. Insurance. The corporation may purchase and maintain insurance, at
its expense, to protect itself and any director, officer, employee or agent of
the corporation or another organization or employee benefit plan against any
expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the corporation would have the power to
indemnify such person against such expense,
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liability or loss under Chapter 156B of the Massachusetts General Laws.
11. Merger or Consolidation. If the corporation is merged into or
consolidated with another corporation and the corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
12. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
13. Subsequent Legislation. If the Massachusetts General Laws are
amended after adoption of this Article to expand further the indemnification
permitted to Indemnitees, then the corporation shall indemnify such persons to
the fullest extent permitted by the Massachusetts General Laws, as so amended.
6C. OTHER PROVISIONS
1. The directors may make, amend, or repeal the by-laws in whole or in
part, except with respect to any provision of such by-laws which by law or these
Articles or the by-laws requires action by the stockholders.
2. Meetings of the stockholders of the corporation may be held
anywhere in the United States.
3. The corporation shall have the power to be a partner in any
business enterprise which this corporation would have the power to conduct by
itself.
4. The corporation, by vote of a majority of the stock outstanding and
entitled to vote thereon (or if there are two or more classes of stock entitled
to vote as separate classes, then by vote of a majority of each such class of
stock outstanding), may (i) authorize any amendment to its Articles of
Organization pursuant to Section 71 of Chapter 156B of the Massachusetts General
Laws, as amended from time to time, (ii) authorize the sale, lease or exchange
of all or substantially all of its property and assets, including its goodwill,
pursuant to
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<PAGE>
Section 75 of Chapter 156B of the Massachusetts General Laws, as amended from
time to time, and (iii) approve an agreement of merger or consolidation pursuant
to Section 78 of Chapter 156B of the Massachusetts General Laws, as amended from
time to time.
5. Chapter 110D of the Massachusetts General Laws, as it may be
amended from time to time, shall not apply to the corporation.
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<PAGE>
Attachment VIII
President: George K. Hertz 77 Mayo Avenue
Needham, MA 02192
Vice President: Robert J. Sullivan 169 Hampshire Road
Wellesley, MA 02181
Treasurer: Frederick von Mering 50 Robinhood Road
Winchester, MA 01890
Clerk: Alan J. Bouffard 55 Gay Street
Norwood, MA 02062
Directors: Paul J. Tobin 183 Bass Point Road
Chairman Nahant, MA 01908
Brian E. Boyle 31 Hallett Hill Road
Weston, MA 02193
George K. Hertz 77 Mayo Avenue
Needham, MA 02192
Frederick von Mering 50 Robinhood Road
Winchester, MA 01890
Jerrold D. Adams 2902 Strathaven Place
Vienna, VA 01741
Paul R. Gudonis 13 Hickory Hill Road
Manchester, MA 01944
James L. McLean 30 Commonwealth Avenue
Apartment 305
Boston, MA 0216
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<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
RESTATED ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B, Section 74)
=============================================
I hereby approve the within Restated Articles of Organization and, the filing
fee in the amount of $1,098.68 having been paid, said articles are deemed to
have been filed with me this 21st day of June, 1996.
Effective Date:__________________________________
WILLIAM FRANCIS GALVIN
Secretary of the Commonwealth
TO BE FILLED IN BY CORPORATION
Photopy of document to be sent to:
Alan J. Bouffard, Esq.
Boston Communications Group
One McKinley Square
Boston, MA 02109
Telephone: (617) 476-3570
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<PAGE>
Exhibit 5.1
HALE AND DORR
60 State Street
Boston, MA 02109
August 30, 1996
Boston Communications Group, Inc.
100 Sylvan Road
Woburn, MA 01801
Re: Boston Communications Group, Inc. 1996 Stock Option Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities and
Exchange Commission relating to 1,264,792 shares of Common Stock, $.01 par
value per share (the "Shares"), of Boston Communications Group, a Massachusetts
corporation (the "Company"), issuable under the Company's 1996 Stock Option Plan
(the "Plan").
We have examined the Restated Articles of Organization of the Company and
the By-Laws of the Company, each as amended to date, and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement and such
other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statements
(Forms S-8) pertaining to the 1996 Stock Option Plan of Boston Communications
Group, Inc. of our report dated February 29, 1996, except for Notes 8 and 11 as
to which the date is April 26, 1996, with respect to the financial statements
and schedule of Boston Communications Group, Inc. included in its Registration
Statement (Form S-1 No. 333-4128) filed with the Securities and Exchange
Commission.
August 26, 1996
Boston, Massachusetts
<PAGE>
Exhibit 23.3
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statements
(Forms S-8) pertaining to the 1996 Stock Option Plan of Boston Communications
Group, Inc. of our report dated April 19, 1996, with respect to the financial
statements of Voice Systems Technology Inc. included in the Boston
Communications Group, Inc.'s Registration Statement (Form S-1 No. 333-4128)
filed with the Securities and Exchange Commission.
August 26, 1996
Philadelphia, Pennsylvania
