As filed with the Securities and Exchange Commission on May 2, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the
SECURITIES ACT OF 1933
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AMERICAN PAGING, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3109408
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1300 Godward Street, N.E., Suite 3100
Minneapolis, Minnesota 55413
(Address of Principal Executive Offices) (Zip Code)
American Paging, Inc.
Compensation Plan for Non-Employee Directors
(Full title of the plan)
LeRoy T. Carlson, Jr.
Chairman
American Paging, Inc.
1300 Godward Street, N.E., Suite 3100
Minneapolis, Minnesota 55413
(Name and address of agent for service)
(612) 623-3100
(Telephone number, including
area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share (1) Price Fee
- --------------- ---------- ------------ ------------ ------------
Common Shares, 50,000
$1.00 par value shares(2) $3.53 $176,500 $100
=============== ========== ============ ============ ============
(1) In addition, this Registration Statement also covers an indeterminate
amount of additional securities which may be issued under the
above-referenced Plan pursuant to the anti-dilution provisions of such Plan
and, if interests in the above-referenced Plan are deemed to constitute
separate securities, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement shall also cover an indeterminate amount
of interests to be offered or sold pursuant to the above-referenced Plan.
(2) Estimated for the Common Shares solely for the purpose of calculating the
registration fee on the basis of the average of the high and low prices of
the Common Shares of the Company on the American Stock Exchange on May 1,
1997, pursuant to Rule 457(h) under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act") and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have heretofore been filed by American
Paging, Inc. (the "Company" or the "Registrant"), with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), are incorporated by reference herein
and shall be deemed to be a part hereof:
1. The description of the Common Shares, par value $1.00 per share
("Common Shares"), of the Company contained in the Company's
Registration Statement on Form 8-A, as filed with the Commission on
February 1, 1994.
2. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
3. All other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Exchange Act since December 31, 1996.
All documents, subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and made a part
hereof from their respective dates of filing (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document 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 Incorporated Document modifies or supersedes such statement. Any such
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.
See Item 3.
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Item 5. Interests of Named Experts and Counsel.
Certain legal matters relating to the securities registered hereby will be
addressed by Sidley & Austin, One First National Plaza, Chicago, Illinois 60603.
The Company is controlled by Telephone and Data Systems, Inc. ("TDS"), which is
controlled by a voting trust. Walter C.D. Carlson, a trustee and beneficiary of
the voting trust and a director of TDS and certain subsidiaries of TDS, Michael
G. Hron, the Secretary of the Company, TDS and certain other subsidiaries of
TDS, William S. DeCarlo, the Assistant Secretary of TDS and certain subsidiaries
of TDS, Stephen P. Fitzell, the Secretary of certain subsidiaries of TDS, and
Sherry S. Treston, the Assistant Secretary of certain subsidiaries of TDS, are
partners of Sidley & Austin.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL") empowers a
Delaware corporation to indemnify any persons who are, or are threatened to be
made, parties to any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person was an officer or director of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided that such officer or director acted in good faith in a
manner he reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
conduct was illegal. A Delaware corporation may indemnify officers and directors
in an action by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in the
performance of his duty. Where an officer or director is successful on the
merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred. Article XI of the Company's Restated
Certificate of Incorporation provides for the indemnification of directors,
officers and employees of the Company within the limitations of Section 145.
In accordance with Section 102(b)(7) of the DGCL, the Company's Restated
Certificate of Incorporation provides that directors shall not be personally
liable for monetary damages for breaches of their fiduciary duty as directors
except for (i) breaches of their duty of loyalty to the Company or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or knowing violations of law, (iii) certain transactions
under Section 174 of the DGCL (unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) transactions from which a director derives an
improper personal benefit. The effect of the provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any actions involving gross
negligence.
The Company has directors' and officers' liability insurance which
provides, subject to certain policy limits, deductible amounts and exclusions,
coverage for all persons who have been, are or may in the future be, directors
or officers of the Company, against amounts which such persons must pay
resulting from claims against them by reason of their being such directors or
officers during the policy period for certain breaches of duty, omissions or
other acts done or wrongfully attempted or alleged. Such policies provide
coverage to certain situations where the Company cannot directly provide
indemnification under DGCL.
Item 7. Exemption from Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
The exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index. The Plan is not intended to be qualified under
Section 401(a) of the Internal Revenue Code.
Item 9. Undertakings.
The Company hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(b) 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.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(c) 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 1.(a) and 1.(b) 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 Company
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 Common Shares being registered hereby which remain unsold at
the termination of the offering.
4. That, for the purposes of determining any liability under the
Securities Act, each filing of the Company'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 the
initial bona fide offering hereof.
5. That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or other-
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wise, the Company 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 Company of expenses incurred or paid by a director,
officer or controlling person of the Company 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 Company 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 City of Chicago, State of Illinois, on the 2nd day of May,
1997.
AMERICAN PAGING, INC.
By: /s/ Terrence T. Sullivan
--------------------------
Terrence T. Sullivan
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 2nd day of May, 1997.
POWER OF ATTORNEY AND SIGNATURES
The undersigned officers and directors of American Paging, Inc. hereby
severally constitute and appoint LeRoy T. Carlson, Jr. and Terrence T. Sullivan,
and each of them, our true and lawful attorneys-in-fact and agents, with full
power of substitution, to sign for us in our names in the capacities indicated
below, all amendments to this registration statement, and generally to do all
things in our names and on our behalf in such capacities to enable American
Paging, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission in
connection with this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the 2nd day of May, 1997.
/s/ LeRoy T. Carlson, Jr. Chairman and Director
- ------------------------------
LeRoy T. Carlson, Jr.
/s/ Terrence T. Sullivan President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer) and Director
Terrence T. Sullivan
/s/ Murray L. Swanson Director
- ------------------------------
Murray L. Swanson
/s/ James Barr III Director
- ------------------------------
James Barr III
/s/ Debora M. de Hoyos Director
- ------------------------------
Debora M. de Hoyos
/s/ Edwin L. Russell Director
- ------------------------------
Edwin L. Russell
/s/ Jean Burhardt Keffeler Director
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Jean Burhardt Keffeler
/s/ Dennis M. Beste Vice President - Finance and Treasurer
- ------------------------------ (Chief Financial Officer)
Dennis M. Beste
/s/ Michelle M. Haupt Controller
- ------------------------------ (Principal Accounting Officer)
Michelle M. Haupt
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EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
Exhibit
No. Description
- ------- -------------------
4.1 Restated Certificate of Incorporation, as amended, of the Company is
hereby incorporated herein by reference to Exhibit 3(i) to the
Company's Registration Statement on Form S-1 (Registration No.
33-72702)
4.2 Restated Bylaws, as amended, of the Company are hereby incorporated
herein by reference to Exhibit 3(ii) to the Company's Registration
Statement on Form S-1 (Registration No. 33- 72702)
5 Opinion of Sidley & Austin
23.1 Consent of Arthur Andersen & Co.
23.2 Consent of Sidley & Austin (contained in Exhibit 5 hereto)
24.1 Powers of Attorney (included on signature page)
99.1 American Paging, Inc. Compensation Plan for Non-Employee Directors
EXHIBIT 5
SIDLEY & AUSTIN
ONE FIRST NATIONAL PLAZA
CHICAGO, ILLINOIS 60603
May 2, 1997
American Paging, Inc.
Suite 3100
1300 Godward Street, N.E.
Minneapolis, Minnesota 55413
Re: American Paging, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We are counsel to American Paging, Inc., a Delaware corporation (the
"Company"), and have represented the Company in connection with the Registration
Statement on Form S-8 (the "Registration Statement") being filed by the Company
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the issuance and delivery of
50,000 Common Shares, par value $1.00 per share (the "Shares"), of the Company
pursuant to the American Paging, Inc. Compensation Plan for Non-Employee
Directors (the "Plan").
In rendering this opinion, we have examined and relied upon a copy of the
Plan and the Registration Statement, including the related Prospectus dated the
date hereof. We have also examined and relied upon originals, or copies of
originals certified to our satisfaction, of such agreements, documents,
certificates and other statements of governmental officials and other
instruments, and examined such questions of law and have satisfied ourselves as
to such matters of fact, as we have considered relevant and necessary as a basis
for this opinion. We have assumed the authenticity of all documents submitted to
us as originals, the genuineness of all signatures, the legal capacity of all
natural persons and the conformity with the original documents of any copies
thereof submitted to us for our examination.
Based on the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the
laws of the State of Delaware; and
2. Each Share will be legally issued, fully paid and nonassessable
when: (i) the Registration Statement shall have become effective under the
Securities Act; (ii) such Share shall have been duly issued and delivered
in the manner contemplated by the Plan; and (iii) a certificate
representing such Share shall have been duly executed, countersigned and
registered and duly delivered to the person entitled thereto against
receipt of the agreed consideration therefor (not less than the par value
thereof) in accordance with the Plan.
<PAGE>
American Paging, Inc.
May 2, 1997
Page 2
We do not find it necessary for the purposes of this opinion to cover, and
accordingly we express no opinion as to, the application of the securities or
"Blue Sky" laws of the various states to the issuance and delivery of the
Shares.
This opinion is limited to the Securities Act and the Delaware General
Corporation Law.
The Company is controlled by Telephone and Data Systems, Inc. ("TDS"),
which is controlled by a voting trust. Walter C.D. Carlson, a trustee and
beneficiary of the voting trust and a director of TDS and certain subsidiaries
of TDS, Michael G. Hron, the Secretary of TDS, the Company and certain other
subsidiaries of TDS, William S. DeCarlo, the Assistant Secretary of TDS and
certain subsidiaries of TDS, Stephen P. Fitzell, the Secretary of certain
subsidiaries of TDS, and Sherry S. Treston, the Assistant Secretary of certain
subsidiaries of TDS, are partners of this Firm.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our Firm in or made a part of
the Registration Statement, including the related Prospectus dated the date
hereof.
Very truly yours,
SIDLEY & AUSTIN
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of American Paging, Inc. of
our reports, dated January 29, 1997, on the consolidated financial statements
and schedules of American Paging, Inc. and Subsidiaries included in the Annual
Report on Form 10-K of American Paging, Inc. for the year ended December 31,
1996, and to all references to our Firm included in this Form S-8 Registration
Statement.
ARTHUR ANDERSEN LLP
Chicago, Illinois
May 2, 1997
EXHIBIT 99.1
AMERICAN PAGING, INC.
(the "Company")
DESCRIPTION OF COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
(the "Plan")
APRIL 15, 1997
* * * * *
The purpose of the Plan is to provide reasonable compensation to
non-employee directors in connection with their services to the Company in order
to induce qualified persons to become and serve as non-employee members of the
Company's Board of Directors.
The Plan was approved pursuant to the authority granted in Section 12 of
Article III of the Company's By-Laws, which provides that this Board of
Directors shall have the authority to establish reasonable compensation of
directors and that directors may be reimbursed their expenses of attending
meetings of the Board of Directors.
The Plan provides that each director of the Company who is not an employee
of the Company, Telephone and Data Systems, Inc., United States Cellular
Corporation, Aerial Communications, Inc., or TDS Telecommunications Corporation
or their subsidiaries or affiliates ("Affiliates") shall receive an annual
director's fee of $20,000; and that each director of the Company who is not an
employee of any Affiliate (hereinafter a "Non- employee Director") shall receive
a fee of $1,000, plus reimbursement of reasonable out-of-pocket expenses
incurred in connection with travel, for attendance at each regularly scheduled
or special meeting of the Board of Directors.
The Plan also provides that each Non-employee Director shall receive a fee
of $500, plus reimbursement of reasonable out-of-pocket expenses incurred in
connection with travel, for attendance at each meeting of the Audit Committee,
Stock Option Compensation Committee, or other committee established by
resolution of the Board of Directors.
The Plan further provides that fifty percent (50%) of the annual fee shall
be paid immediately prior to the Company's Annual Meeting of Shareholders by the
delivery of Common Shares of the Company having a fair market value, as
hereinafter defined, as of the date of payment equal to such percentage of the
annual fee.
Under the Plan, for purposes of determining the number of Common Shares
deliverable pursuant to the preceding paragraph, the fair market value of a
Common Share of the Company shall be the average closing price of Common Shares
of the Company as reported on the American Stock Exchange for the twenty (20)
trading days ending on the third trading day before the Annual Meeting of
Shareholders.
The Board of Directors of the Company has reserved 50,000 Common Shares of
the Company for issuance pursuant to the Plan.
