AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 4, 1999
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES EXCHANGE ACT OF 1933
Arch Communications Group, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 31-1358569
(State or Other Jurisdiction of Incorporation) (IRS Employer Identification No.)
1800 West Park Drive, Suite 250, Westborough, MA 01581
(Address of Principal Executive Offices) (Zip Code)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
C. Edward Baker, Jr.
Chairman and Chief Executive Officer
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, MA 01581
(Name and address of agent for service)
(508) 870-6700
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Title of Proposed Maximum
Securities Amount to Maximum Aggregate Amount of
to be be Offering Price Offering Registration
Registered Registered (1) Per Share (1) Price (1) Fee (1)
---------- -------------- ------------- --------- -------
Common Stock, 1,500,000 $2.40625 $3,609,375 $1,003.41
$.01 par value Shares
(1) Estimated solely for the purpose of calculating the registration fee and
based on the average of the high and low prices of the Common Stock as reported
by Nasdaq National Market on May 28, 1999 in accordance with Rules 457(c) and
(h) of the Securities Act of 1933, as amended.
Page 1 of 9 pages.
Exhibit Index begins on page 7.
<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 participants in the 1999 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.
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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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<PAGE>
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances. The Registrant's Restated
Certificate of Incorporation, as amended, provides that the Registrant will, to
the fullest extent permitted by the Delaware General Corporation Law, indemnify
all persons whom it has the power to indemnify against all costs, expenses and
liabilities incurred by them by reason of having been officers or directors of
the Registrant, any subsidiary of the Registrant or any other corporation for
which such persons acted as an officer or director at the request of the
Registrant.
The Registrant's Restated Certificate of Incorporation also provides that
the directors of the Registrant will not be personally liable for monetary
damages to the Registrant or its stockholders for any act or omission provided
that the foregoing shall not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the Delaware General Corporation Law (relating to illegal dividends or stock
redemptions) or (iv) for any transaction from which the director derived an
improper personal benefit. If the Delaware General Corporation Law is amended to
permit further elimination or limitation of the personal liability of directors,
then the liability of a director of the Registrant shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation Law
as so amended.
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:
(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
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<PAGE>
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; and
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, 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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<PAGE>
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 the Town of Westborough, on this 27th day of May, 1999.
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ C. Edward Baker, Jr.
------------------------
C. Edward Baker, Jr.
Chairman of the Board 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., Gerald J.
Cimmino, 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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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ C. Edward Baker, Jr. Chairman of the Board of Directors May 27, 1999
- ------------------------ and Chief Executive Officer
C. Edward Baker, Jr. (Principal Executive Officer)
/s/ J. Roy Pottle Executive Vice President and Chief May 27, 1999
- ----------------- Financial Officer
J. Roy Pottle (Principal Financial Officer and
Principal Accounting Officer)
/s/ R. Schorr Berman Director May 27, 1999
- --------------------
R. Schorr Berman
/s/ James S. Hughes Director May 27, 1999
- -------------------
James S. Hughes
/s/ John Kornreich Director May 27, 1999
- ------------------
John Kornreich
/s/ Allan L. Rayfield Director May 27, 1999
- ---------------------
Allan L. Rayfield
/s/ John B. Saynor Director May 27, 1999
- ------------------
John B. Saynor
/s/ John A. Shane Director May 27, 1999
- -----------------
John A. Shane
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
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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Exhibit 5.1
June 4, 1999
Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, MA 01581
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 1,500,000 shares of common stock, $.01 par value per
share (the "Shares"), of Arch Communications Group, Inc. (the "Company"),
issuable under the 1999 Employee Stock Purchase Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and the By-Laws
of the Company, each as amended to date, the Registration Statement and
originals, or copies certified to our satisfaction of all pertinent records of
the meetings of the directors and stockholders of the Company, and such other
documents relating to the Company as we have deemed material for the purposes of
this opinion.
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
Company has duly authorized for issuance the Shares 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 as an Exhibit to the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
-8-
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 24,
1999 included (or incorporated by reference) in Arch Communications Group,
Inc.'s Form 10-K for the year ended December 31, 1998 and to all references to
our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 3, 1999
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