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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 1, 1996
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
ARCH COMMUNICATIONS GROUP, INC.
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(Exact name of issuer as specified in its charter)
Delaware 31-1358569
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1800 West Park Drive, Suite 250, Westborough, MA 01581
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(Address of Principal Executive Offices) (Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
David A. Westenberg, Esq., c/o Hale and Dorr
60 State Street, Boston, Massachusetts 02109
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(Name and address of agent for service)
(617) 526-6626
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount to Maximum Aggregate Amount of
to be be Offering Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee (1)
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Common Stock, 250,000 $18.8125 $4,703,125 $1,621.77
$.01 par value Shares
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) of the Securities Act of 1933, as amended,
and based on the average of the high and low prices of the Common Stock on the
National Association of Securities Dealers Automated Quotation System's
National Market System on June 26, 1996.
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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 Employee Stock Purchase Plan of Arch 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 Certain Documents by Reference.
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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 on file with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or the 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.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Registrant
document referred to in (a) above.
(c) The description of the Common Stock, par value $.01 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 securities offered hereby have
been sold or which deregisters all such securities 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. 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
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also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 102(b)(7) of the General Corporation Law of Delaware enables a
Delaware corporation to provide in its certificate of incorporation, and the
Registrant has so provided in its Restated Certificate of Incorporation, as
amended, for the elimination or limitation of the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided, however, that a director's liability
is not eliminated or limited: (1) for any breach of the director's duty of
loyalty to the corporation or its stockholders; (2) for acts or omissions not
in good faith or which involve an intentional misconduct or a knowing violation
of law; (3) pursuant to Section 174 of the General Corporation Law of Delaware
(which imposes liability on directors for unlawful payment of dividends or
unlawful stock purchases or redemptions); or (4) for any transaction from which
the director derived an improper personal benefit. The Restated Certificate of
Incorporation, as amended further provides that if the Delaware General
Corporation Law is amended to authorize the further elimination or limitation
of the liability of directors, then the liability of a director shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as amended.
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any person who was or is a party or witness or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he or she is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise.
Depending on the character of the proceeding, a corporation may indemnify
against expenses (including attorneys' fees), judgments, fines and amounts paid
in
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settlement actually and reasonably incurred in connection with such action, suit
or proceeding if the person indemnified acted in good faith and in a manner 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 or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. If the person
indemnified is not wholly successful in such action, suit or proceeding, but is
successful, on the merits or otherwise, in one or more but less than all claims,
issues or matters in such proceeding, he or she may be indemnified against
expenses actually and reasonably incurred in connection with each successfully
resolved claim, issue or matter. In the case of an action or suit by or in the
right of the corporation, no indemnification may be made in respect to any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
that despite the adjudication of liability such person is fairly and reasonably
entitled to indemnity for such expenses which the court shall deem proper.
Section 145 provides that to the extent a director, officer, employee or agent
of a corporation has been successful in the defense of any action, suit or
proceeding referred to above or in the defense of any claim, issue or manner
therein, he or she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him or her in connection therewith.
The Restated Certificate of Incorporation, as amended, of the Registrant
provides that, to the fullest extent permitted by the General Corporation Law
of the State of Delaware, the Registrant shall indemnify any person who was or
is a party or is threatened to be made a party to any action, suit or
proceeding of the type described above by reason of the fact that he or she is
or was a director or officer of the Registrant or is or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise. No expenses
will be paid in advance, except as authorized by the Board of Directors for
expenses incurred while a director or officer was acting in his or her capacity
as a director or officer and upon the condition that such director or officer
previously delivered an undertaking to the corporation to repay all amounts
advanced if it should be later determined that he or she was not entitled to
indemnification. The Restated Certificate of Incorporation, as amended, of the
Registrant further provides that the above rights of indemnification are not
exclusive of any other rights of indemnification that a director or officer may
be entitled to from any other source.
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Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
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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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (i) and (ii) of this section 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 periodic reports filed with
or furnished to the Commission by the registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 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.
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(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 this 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 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 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, 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 Boston, on this first day of July, 1996.
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ C. Edward Baker, Jr.
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C. Edward Baker, Jr.
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Arch Communications Group,
Inc. hereby severally constitute and appoint C. Edward Baker, Jr., William A.
Wilson, Garry B. Watzke and David A. Westenberg, 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 Arch Communications
Group, Inc. to comply with the provisions of the Securities Act, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
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/s/ C. Edward Baker, Jr. Chairman of the Board ) July 1, 1996
- ------------------------ of Directors, President )
C. Edward Baker, Jr. and Chief Executive )
(Principal Executive Officer
Officer) )
)
)
)
/s/ William A. Wilson Executive Vice President ) July 1, 1996
- ------------------------ and Chief Financial )
William A. Wilson Officer )
(Principal Financial )
Officer and Principal )
Accounting Officer) )
)
)
/s/ James S. Hughes Director ) July 1, 1996
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James S. Hughes )
)
)
/s/ John A. Shane Director ) July 1, 1996
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John A. Shane )
)
)
/s/ R. Schorr Berman Director ) July 1, 1996
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R. Schorr Berman )
)
)
/s/ John B. Saynor Director ) July 1, 1996
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John B. Saynor )
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EXHIBIT INDEX
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Exhibit
Number
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4.1 Restated Certificate of
Incorporation of the Registrant
(included as Annex D to the
Joint Proxy Statement and
Prospectus which is part of
the Registrant's Registration
Statement on Form S-4 (File
No. 33-95468) and incorporated
herein by reference)
4.2 Certificate of Amendment of Restated
Certificate of Incorporation of the
Registrant
4.3 By-Laws of the Registrant
(filed as Exhibit 3.5 to the
Registrant's Registration
Statement on Form S-4 (File
No. 33-95468 and incorporated
herein by reference)
5.1 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included in the
signature pages of this Registration
Statement)
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Exhibit 4.2
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
ARCH COMMUNICATIONS GROUP, INC.
Pursuant to Section 242
of the Corporation Law of the
State of Delaware
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At a meeting of the Board of Directors of Arch Communications Group, Inc.
(the "Corporation") held on March 15, 1996, a resolution was adopted, pursuant
to Section 242 of the General Corporation Law of the State of Delaware (the
"GCL"), declaring an amendment to the Certificate of Incorporation of the
Corporation to be advisable. The stockholders of the Corporation duly approved
said proposed amendment in accordance with Sections 211 and 222 of the GCL. The
resolution authorizing the amendment is as follows:
RESOLVED: That the Board of Directors of the Corporation
deems it advisable and in the best interests of
the Corporation that the Restated Certificate of
Incorporation be amended by deleting Article
TWELFTH thereof in its entirety.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to be signed by its President
this fourth day of June, 1996.
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ C. Edward Baker, Jr.
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C. Edward Baker, Jr.
Chairman of the Board,
President and Chief
Executive Officer
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Exhibit 5.1
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July 1, 1995
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, MA 01581
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 250,000 shares of common stock, $.01 par value per share
(the "Shares"), of Arch Communications Group, Inc. (the "Company"), issuable
under the 1996 Employee Stock Purchase Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and the By-Laws
of the Company, and all amendments thereto, the Registration Statement and
originals, or copies certified to our satisfaction of such records of meetings,
written actions in lieu of meetings, or resolutions adopted at meetings, of the
directors of the Company, and such other documents and instruments as in our
judgment are necessary or appropriate to enable us to render the opinions
expressed below.
In our 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 all such documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares covered by the Registration Statement to be issued under the Plan have
been duly and validly authorized for issuance and when issued against payment
therefor 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 as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
February 15, 1996 (except with respect to Note 9 as to which the date is March
12, 1996) included (or incorporated by reference) in Arch Communications Group,
Inc.'s Form 10-K for the year ended December 31, 1995 and to all references to
our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
July 1, 1996
