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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 26, 2000
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 (I.R.S. Employer
Incorporation or Organization) Identification Number)
1800 WEST PARK DRIVE, SUITE 250, WESTBOROUGH, MA 01581
(Address of Principal Executive Offices) (Zip Code)
2000 STOCK INCENTIVE 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
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par 6,000,000 shares $5.64(1) $33,840,000(1) $8,934
value
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(1) Computed in accordance with Rules 457(c) and (h) under the Securities Act
of 1933, as amended, based upon the average of the high and low prices of
the Common Stock as reported by Nasdaq National Market on July 24, 2000.
Page 1 of 8 pages.
Exhibit Index begins on page 7.
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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 Registrant's 2000 Stock Incentive Plan 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
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 "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) 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.
(2) 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 document
referred to in (1) above.
(3) The description of the common stock of the Registrant, $.01
par value per share (the "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. 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.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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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:
(1) 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, 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 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.
2. The undersigned 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 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 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 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 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 24th day of July, 2000.
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, Patricia A. Gray 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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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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ C. Edward Baker, Jr. Chairman of the Board of Directors and July 24, 2000
------------------------ Chief Executive Officer
C. Edward Baker Jr. (Principal Executive Officer)
/s/ J. Roy Pottle Executive Vice President and Chief July 24, 2000
------------------------ Financial Officer
J. Roy Pottle (Principal Financial Officer and
Principal Accounting Officer)
/s/ Edwin M. Banks Director July 24, 2000
------------------------
Edwin M. Banks
/s/ R. Schorr Berman Director July 24, 2000
------------------------
R. Schorr Berman
/s/ James S. Hughes Director July 24, 2000
------------------------
James S. Hughes
/s/ John Kornreich Director July 24, 2000
------------------------
John Kornreich
/S/ H. Sean Mathis Director July 24, 2000
------------------------
H. Sean Mathis
/s/ Allan L. Rayfield Director July 24, 2000
------------------------
Allan L. Rayfield
/s/ John B. Saynor Director July 24, 2000
------------------------
John B. Saynor
/s/ John A. Shane Director July 24, 2000
------------------------
John A. Shane
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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4.1(1) Restated Certificate of Incorporation
4.2(2) Certificate of Designations establishing the Series B Junior
Participating Preferred Stock filed with the Secretary of State
of the State of Delaware on October 19, 1995
4.3(1) Certificate of Correction filed with the Secretary of State of the
State of Delaware on February 15, 1996
4.4(3) Certificate of Amendment of Restated Certificate of Incorporation
filed with the Secretary of State of the State of Delaware on
June 4, 1996
4.5(4) Certificate of Designations establishing the Series C Convertible
Preferred Stock filed with the Secretary of State of the State of
Delaware on June 29, 1998
4.6 Certificate of Amendment of Restated Certificate of Incorporation
filed with the Secretary of State of the State of Delaware on
May 27, 1999
4.7 Certificate of Amendment of Restated Certificate of Incorporation
filed with the Secretary of State of the State of Delaware on
June 16, 1999
4.8(5) Certificate of Amendment filed with the Secretary of State of the
State of Delaware on April 3, 2000
4.9(5) Certificate of Designations establishing the Series D and E
Preferred Stock filed with the Secretary of State of the State
of Delaware on April 28, 2000
4.10(1) Amended By-Laws of the Registrant
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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(1) Incorporated by reference from the Registrant's Registration Statement on
Form S-3 (File No. 333-542).
(2) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated October 13, 1995 and filed on October 24, 1995.
(3) Incorporated by reference from the Registrant's Registration Statement on
Form S-8 (File no. 333-07333)
(4) Incorporated by reference from the Registrant's Current Report on Form 8-K
dated June 26, 1998 and filed on July 23, 1998.
(5) Incorporated by reference from the Registrant's Registration Statement on
Form S-4 (File no. 333-95677)
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