As filed with the Securities and Exchange Commission
on October 25, 2000
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BOSTON COMMUNICATIONS GROUP, INC.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts
(State or Other Jurisdiction of Incorporation or Organization)
04-3026859
(I.R.S. Employer Identification No.)
100 Sylvan Road, Woburn, Massachusetts 01801
(Address of Principal Executive Offices) (Zip Code)
NON-STATUTORY STOCK OPTION
(Full Title of the Plan)
Edward H. Snowden
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)
<TABLE>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
To Be To Be Price Per Offering Amount of
Registered Registered Share Price Registration Fee
---------------------- ------------------ -------------------- --------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.01 par value per
share 150,000 $20.00(1) $3,000,000(1) $792.00
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the high and low sale prices of the
Common Stock on the Nasdaq National Market on October 18, 2000 in
accordance with Rules 457(c) and 457 (h) of the Securities Act of 1933,
as amended.
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10 (a) PROSPECTUS
The information required by Part I is included in documents sent or
given to the recipient of the Non-Statutory Stock Option from Boston
Communications Group, Inc. (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 Documents by Reference
(a) The Registrant's latest Annual Report on Form 10-K for the
fiscal year ended December 31, 1999.
(b) All other reports filed by the Registrant with the Securities
and Exchange Commission pursuant to Section 13(a) or Section
15 (d) of the Securities Exchange Act of 1934 since December
31, 1999, as follows:
(i) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000.
(ii) The Registrant's Quarterly Report on Form 10-Q for the
fiscal quarter ended June 30, 2000.
(c) The description of the Registrant's Common Stock, $.01 par
value per share, contained in the Registrant's Registration
Statement on Form 8-A in respect of the Registrant's Common
Stock, filed pursuant to Section 12 of the Securities Exchange
Act of 1934.
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 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 General Laws permits, in part,
indemnification by Massachusetts corporations of its directors, officers,
employees, and persons who serve at its request in any capacity with respect to
any employee benefit plan. Indemnification is permitted to the extent specified
in or authorized by a corporation's articles of organization, a by-law adopted
by the stockholders or a vote adopted by the holders of a majority of the stock
entitled to select directors. Section 67, however, prohibits a corporation from
indemnifying a person with respect to any matter who has been adjudicated not to
have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation or in the best interest of the participants or
beneficiaries of an employee benefit plan, as the case may be.
In addition, Section 67 specifically permits a corporation to advance
expenses incurred in defending the action or proceeding if the indemnified
person undertakes to repay the amount advanced should such person later be
adjudicated not to be entitled to indemnification under Section 67. Any such
indemnification may be provided although the person to be indemnified is no
longer an officer, director, employee or agent of the corporation or of such
other organization or no longer serves with respect to any employee benefit
plan.
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
Exhibit Number Description
4.1(1) Specimen Certificate for Shares of Common Stock,
$.01 par value per share, of the Registrant
5.1 Opinion of Ropes & Gray
23.1 Consent of Ropes & Gray (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page
of this Registration Statement)
(1) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (Commission File No. 333-4128).
Item 9. Undertakings
(a) The 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 hereof) 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 (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 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 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.
(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.
<PAGE>
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 Town of Woburn, Commonwealth of Massachusetts, on this 25th
day of October, 2000.
BOSTON COMMUNICATIONS GROUP, INC.
By: /s/ Edward H. Snowden__________________
Edward H. Snowden
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Boston Communications
Group, Inc., hereby severally constitute Edward H. Snowden, Karen A. Walker,
Alan J. Bouffard and Jennifer M. Borggaard, and each of them singly, our true
and lawful attorneys with full power to any of them, and to 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 subsequent
amendments to said Registration Statement, and generally to do all such things
in our names and behalf in our capacities as officers and directors to enable
Boston Communications Group, Inc. to comply with all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated below.
Signature Title Date
/s/ Edward H. Snowden President, Chief October 25, 2000
-------------------------------------
Edward H. Snowden Executive Officer and
Director (Principal
Executive Officer)
/s/ Karen E. Walker Vice President - October 25, 2000
------------------------------------- and Administration
Karen E. Walker (Principal Financial and
Accounting Officer)
/s/ Frederick E. von Mering Vice President - October 25, 2000
------------------------------------- Strategic
Frederick E. von Mering Development and
Director
/s/ Paul J. Tobin Chairman of the Board October 25, 2000
-------------------------------------
Paul J. Tobin
/s/ Brian E. Boyle Vice Chairman of the October 25, 2000
-------------------------------------
Brian E. Boyle Board
/s/ Jerrold D. Adams Director October 25, 2000
-------------------------------------
Jerrold D. Adams
/s/ Rajendra Singh Director October 25, 2000
-------------------------------------
Rajendra Singh
/s/ Mark J. Kington Director October 25, 2000
-------------------------------------
Mark J. Kington
/s/ Paul R, Gudonis Director October 25, 2000
-------------------------------------
Paul R. Gudonis
/s/ Gerald Segel Director October 25, 2000
-------------------------------------
Gerald Segel
Exhibit Index
Exhibit Number
Description
4.1(1) Specimen Certificate for Shares of Common Stock,
$.01 par value per share, of the Registrant
5.1 Opinion of Ropes & Gray
23.1 Consent of Ropes & Gray (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page of
this Registration Statement)
(1) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (Commission File No. 333-4128).
Exhibit 5.1
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2624
(617) 951-7000
FAX: (617) 951-7050
October 25, 2000
Boston Communications Group, Inc.
100 Sylvan Road
Woburn, Massachusetts 01801
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended, for the registration of 150,000 shares of common stock,
$0.01 par value per share (the "Shares"), of Boston Communications Group, Inc.,
a Massachusetts corporation (the "Company"), issuable under the Non-Statutory
Stock Option (the "Option").
We are familiar with the actions taken by the Company in connection
with the Option. For purposes of this opinion, we have examined the Registration
Statement, the Option and such other documents as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly authorized and (ii) the Shares, when issued and sold in
accordance with the terms of the Option, will have been validly issued and will
be fully paid and non-assessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
It is understood that this opinion is to be used only in connection
with the offer and sale of Shares while the Registration Statement is in effect.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Non-Statutory Stock Option of Boston Communications
Group, Inc. of our report dated January 28, 2000, with respect to the
consolidated financial statements and schedule of Boston Communications Group,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1999.
/s/ Ernst & Young LLP
Boston, Massachusetts
October 23, 2000
