SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20459
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SAGA COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 38-3042953
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
73 Kercheval Avenue, Grosse Point Farms, Michigan 48236
- -------------------------------------------------------------------------------
(Address of principal executive offices, including zip code)
SAGA COMMUNICATIONS, INC. EMPLOYEES' 401(K) SAVINGS & INVESTMENT PLAN
(Full title of plan)
Christine M. Marx
Edwards & Angell
150 John F. Kennedy Parkway
Short Hills, New Jersey 07078
(Name and address of agent for service)
(973) 376-7700
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
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Proposed Proposed
Amount to Maximum Maximum
Title of Securities be Offering Aggregate Amount of
to be Registered Price Per Offering Registration
Registered (1) (1) Unit (2) Price (2) Fee
- ------------------- ------------ --------- ---------- ------------
Class A Common Stock 1,000,000 $16.00 $16,000,000 $4,720
shares
- -------------------------------------------------------------------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered
or sold pursuant to the Saga Communications, Inc. Employees' 401(k)
Savings and Investment Plan.
- -------------------------------------------------------------------------------
(2) This calculation is made solely for the purpose of determining the
amount of the Registration Fee and is based upon a price of $16 per
share, which was the closing price of the Company's Class A Common
Stock reported on September 9, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I of Form S-8 will
be sent or given to employees participating in the Plan as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act").
Those documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are incorporated herein by reference the following documents:
(1) The annual report of the Company on Form 10-K for its fiscal year ended
December 31, 1997, which was filed pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(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 annual report
referred to in (1) above.
(3) The description of the shares of Class A Common Stock incorporated by
reference in the Company's registration statement on Form 8-A filed under the
Exchange Act, including any amendment or reports filed for the purpose of
updating such description.
All documents filed by the Company subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act prior to the termination of this offering shall be deemed to be
incorporated by reference herein and to be part hereof from the date of the
filing of such documents. Any statements contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of the 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 Persons Named as Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law, as amended, provides
in regard to indemnification of directors and officers as follows:
"(a) A corporation may indemnify any person who was or is a party 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 such person 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, partnership, joint venture, trust or other
enterprise, against 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 if such
person acted in good faith and in a manner such person 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 such person's conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which such person 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
reasonable cause to believe that such person's conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person 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, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit if such person acted in good
faith and in a manner such person reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of 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 upon
application that, despite the adjudication of liability but in view of
all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of
this section, or in defense of any claim, issue or matter therein, such
person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the present or former director, officer, employee or agent is proper
in the circumstances because such person has met the applicable standard
of conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made with respect to a person who is a director or
officer at the time of such determination (1) by a majority vote of the
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors
designated by majority vote of such directors, even though less than a
quorum, (3) if there are no such directors, or if such directors so
direct, by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as
authorized in this section. Such expenses (including attorneys' fees)
incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the Corporation
deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not be
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise, both as to action in such person's official capacity and as to
action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such
person in any such capacity, or arising out of such person's status as
such, whether or not the corporation would have the power to indemnify
such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers,
and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, shall stand in the same position
under this section with respect to the resulting or surviving corporation
as such person would have with respect to such constituent corporation if
its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the corporation" shall
include any service as a director, officer, employee or agent of the
corporation which imposes duties on, or involves services by, such
director, officer, employee or agent with respect to any employee benefit
plan, its participants or beneficiaries; and a person who acted in good
faith and in a manner such person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section or under any bylaw, agreement,
vote of stockholders or disinterested directors, or otherwise. The Court
of Chancery may summarily determine a corporation's obligations to
advance expenses (including attorneys' fees)."
The Company's Restated Certificate of Incorporation and bylaws provide that
officers and directors of the Company shall be indemnified to the full extent
permitted under subsections (a) through (e) of Section 145 of Title 8 of the
Delaware General Corporation Law.
The Restated Certificate of Incorporation of the Company also contains a
provision eliminating the liability of a director to the Company or its
stockholders for breach of fiduciary duty as a director, other than liability
for (a) breach of the director's duty of loyalty to the corporation or its
stockholders; (b) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (c) unlawful stock
purchase or redemption; or (d) any transaction from which the director derived
an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted pursuant to the foregoing provisions, the Registrant
has been advised that, in the opinion of the Securities and Exchange Commission,
such indemnification is contrary to public policy as expressed in the Securities
Act of 1933 and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
5 Opinion of Edwards & Angell, LLP
23(a) Consent of Ernst & Young LLP
23(b) Consent of Edwards & Angell, LLP (included in Exhibit 5)
24 Power of Attorney (included on signature pages to this Registration
Statement)
Item 9. Undertakings
The undersigned 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;
(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;
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 for such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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.
The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 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
in the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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
of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES AND AMENDMENTS
Each person whose signature appears below hereby constitutes and appoints
the President, the Chief Financial Officer or the Secretary of the Registrant,
or any one of them, acting alone, as his true and lawful attorney-in-fact, with
full power and authority to execute in the name, place and stead of each such
person in any and all capacities and to file, an amendment or amendments to the
Registration Statement (and all exhibits thereto) and any documents relating
thereto, which amendment may make such changes in the Registration Statement as
said officer or officers so acting deem(s) advisable.
SIGNATURES
Registrant: 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 Grosse Pointe Farms, State of Michigan, on September
14, 1998.
SAGA COMMUNICATIONS, INC.
By/s/ Edward K. Christian
----------------------------
Edward K. Christian
President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 14, 1998.
Signatures Title
/s/Edward K. Christian President, Chief Executive
- ----------------------- Officer and Chairman of the Board
Edward K. Christian
/s/Samuel D. Bush Vice President, Chief Financial
- ----------------------- Officer
Samuel D. Bush
/s/Catherine Bobinski Corporate Controller and Chief
- ------------------------ Accounting Officer
Catherine Bobinski
/s/Kristin Allen Director
- ------------------------
Kristin Allen
/s/Donald Alt Director
- ------------------------
Donald Alt
/s/Jonathan Firestone Director
- ------------------------
Jonathan Firestone
/s/Joseph P. Misiewicz Director
- ------------------------
Joseph P. Misiewicz
/s/Gary Stevens Director
- ------------------------
Gary Stevens
The Plan: Pursuant to the requirements of the Securities Act of 1933, the Plan
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Grosse Pointe Farms,
State of Michigan, on September 14, 1998.
SAGA COMMUNICATIONS, INC.
EMPLOYEES' 401(K) SAVINGS &
INVESTMENT PLAN
By Saga Communications, Inc.,
Plan Administrator
By /s/ Marcia K. Lobaito
-----------------------------
Marcia K. Lobaito
Vice President
Exhibit 5
September 14, 1998
Saga Communications, Inc.
73 Kercheval Avenue
Grosse Pointe Farms, MI 48236
Ladies and Gentlemen:
We are furnishing this opinion in connection with the filing by Saga
Communications, Inc. (the "Corporation") of a Registration Statement on Form S-8
(the "Registration Statement") with the Securities and Exchange Commission (the
"Commission") relating to interests in the Corporation's Employees' 401(k)
Savings & Investment Plan (the "Plan") and the issuance by the Company of up to
1,000,000 shares of the Corporation's Class A Common Stock, $.01 par value (the
"Class A Common Stock"), to be issued thereunder.
In connection with this opinion, we have examined such corporate records,
certificates and other documents, and reviewed such questions of law, as we have
deemed necessary or appropriate in order to express the opinions contained
herein.
Based upon such examination, it is our opinion that:
1. The shares of Class A Common Stock being registered by the Registration
Statement, when issued and paid for as contemplated in the Plan, assuming due
execution of the certificates therefor, will be validly issued, fully paid and
non-assessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Registration Statement
and the Prospectus constituting a portion thereof. This opinion may not be used
for any other purpose or relied upon by any other person, firm or corporation
for any purpose without our prior written consent.
Very truly yours,
EDWARDS & ANGELL, LLP
By: /s/ Christine M. Marx
-------------------------
Christine M. Marx
Partner
Exhibit 23(a)--Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
pertaining to the registration of interests in Saga Communications, Inc.
Employees' 401(k) Savings & Investment Plan and 1,000,000 shares of Class A
Common Stock issuable under the Plan of our report dated February 13, 1998, with
respect to the financial statements and schedules of Saga Communications, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1997,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Detroit, Michigan
September 11, 1998