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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 9, 1997
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)
1997 STOCK OPTION PLAN
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(Full title of the plan)
David A. Westenberg, Esq., c/o Hale and Dorr LLP
60 State Street, Boston, Massachusetts 02109
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(Name and address of agent for service)
(617) 526-6000
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(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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 (1)
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<S> <C> <C> <C> <C>
Common Stock, 1,500,000 $5.6875 $8,531,250 $2,586
$.01 par value Shares
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</TABLE>
(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
Nasdaq National Market on May 5, 1997.
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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 1997 Stock Option 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 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.
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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 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,
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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 matter 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.
Item 7. Exemption From Registration Claimed.
-----------------------------------
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;
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(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.
(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,
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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 Westborough, on this 30th day of April, 1997.
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 ) April 30, 1997
- ------------------------ of Directors, President )
C. Edward Baker, Jr. and Chief Executive )
(Principal Executive Officer )
Officer) )
)
)
)
/s/ William A. Wilson Executive Vice President, ) April 30, 1997
- ------------------------ and Chief Financial )
William A. Wilson Officer )
(Principal Financial )
Officer and Principal )
Accounting Officer) )
)
)
/s/ R. Schorr Berman Director ) April 30, 1997
- ---------------------- )
R. Schorr Berman )
)
)
/s/ James S. Hughes Director ) April 30, 1997
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James S. Hughes )
)
)
/s/ John B. Saynor Director ) April 30, 1997
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John B. Saynor )
)
)
/s/ John A. Shane Director ) April 30, 1997
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John A. Shane )
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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 (filed as Exhibit 4.2
to the Registrant's Registration Statement on Form S-8
(File No. 333-07333 and incorporated herein by
reference)
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 LLP
23.1 Consent of Hale and Dorr LLP (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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[HALE AND DORR LLP LETTERHEAD]
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 o fax 617-526-5000
Exhibit 5.1
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May 9, 1997
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 1,500,000 shares of common stock, $.01 par value per
share (the "Shares"), of Arch Communications Group, Inc. (the "Company"),
issuable under the 1997 Stock Option 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.
Washington, DC Boston, MA London, UK*
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HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE> 2
Arch Communications Group, Inc.
May 9, 1997
Page 2
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 LLP
HALE AND DORR LLP
Washington, DC Boston, MA London, UK*
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HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
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Exhibit 23.2
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated February 10,
1997 included in Arch Communication Group, Inc.'s Form 10-K for the year ended
December 31, 1996 and to all references to our Firm included in this
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
May 7, 1997
