As filed with the Securities and Exchange Commission on June 6, 2003
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
ARRIS GROUP, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 58-2588724
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11450 TECHNOLOGY CIRCLE
DULUTH, GEORGIA 30097
(Address of principal executive offices) (Zip Code)
ARRIS GROUP, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
LAWRENCE A. MARGOLIS
ARRIS GROUP, INC.
11450 TECHNOLOGY CIRCLE
DULUTH, GEORGIA 30097
(678) 473-2000
(Name, address and telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all orders, notices and
communications to:
W. BRINKLEY DICKERSON, JR.
TROUTMAN SANDERS LLP
600 PEACHTREE STREET, SUITE 5200
ATLANTA, GEORGIA 30308
(404) 885-3000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class of Amount to be Proposed maximum maximum Amount of
securities to be registered registered(1) offering price per share(2) aggregate offering price(2) registration fee
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Common Stock, par value $0.01(3) 1,000,000 shares $5.23 $5,230,000.00 $424
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the
"Securities Act"), includes an indeterminate number of additional
shares that may be offered and issued to prevent dilution resulting
from stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee,
in accordance with Rule 457 (h)(1) on the average of the high and low
sales prices of $5.38 and $5.07 per share for ARRIS Group, Inc. common
stock ("Common Stock") (ticker symbol "ARRS") on the Nasdaq National
Market System on June 3, 2003.
(3) Includes Preferred Stock Purchase Rights. Prior to the occurrence of
certain events, the Rights will not be exercisable or evidenced
separately from the Common Stock.
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EXPLANATORY NOTE
ARRIS Group, Inc. (the "Company") is filing this registration statement
on Form S-8 to register 1,000,000 additional shares of Company common stock
authorized for issuance under the Employee Stock Purchase Plan (the "Plan"). The
authorization of issuance of such additional shares was approved by the Company
stockholders at the annual meeting on May 22, 2003. The Plan is an amendment and
restatement of the Employee Stock Purchase Plan of Broadband Parent Corporation
(the Company's predecessor), with respect to which the Company filed, on August
20, 2001, a registration statement on Form S-8 (registration statement number
333-67936) with the Securities and Exchange Commission (the "Commission"). The
total number of shares of Company common stock issuable under the Plan is
1,800,000, which includes the 1,000,000 shares of Company common stock
registered on this registration statement and the 800,000 shares of Company
common stock that were registered on the prior registration statement.
PART I-- INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents constituting Part I of this registration statement have
been or will be sent or given to participants in the Plan as specified by Rule
428(b)(1) under the Securities Act. These documents and the documents
incorporated by reference into this registration statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Upon written or oral request, the Company will provide, without charge,
the documents incorporated by reference in Item 3 of Part II of this
registration statement. The registrant also will provide, without charge, upon
written or oral request, other documents required to be delivered to employees
pursuant to Rule 428(b) under the Securities Act. Requests for the
above-mentioned information should be directed to Vice President of Human
Resources, ARRIS Group, Inc., 11450 Technology Circle, Duluth, Georgia 30097,
telephone number (678) 473-2000.
PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference into this registration statement
as of their respective dates of filing:
(a) The Company's Annual Report on Form 10-K for the period ending
December 31, 2002, filed March 27, 2003;
(b) The Company's Quarterly Report on Form 10-Q for the period
ending March 31, 2003, filed May 14, 2003;
(c) The Company's Current Report on Form 8-K, filed April 24,
2003;
(d) The Company's Current Report on Form 8-K, filed April 1, 2003;
(e) The description of the Company's Common Stock, par value
$0.01, contained in the Company's Registration Statement on
Form 8-A, as filed on August 3, 2001, as amended by the
Company's Registration Statement on Form 8-A/A as filed on
August 7, 2001, including any amendments or reports filed for
the purpose of updating such descriptions; and
(f) The description of the Company's preferred stock purchase
rights contained in the Company's Registration Statement on
Form 8-A/A, as filed on October 3, 2002, including any
amendments or reports filed for the purpose of updating such
description.
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All documents filed subsequent to the date of this registration
statement by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") prior to the filing of a
post-effective amendment hereto which indicates that all securities offered
hereby have been sold or which deregisters any securities then remaining unsold,
shall also be deemed to be incorporated by reference in this registration
statement and to be a part hereof from their respective dates of filing.
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 that also is or is
deemed to be incorporated by reference herein, modifies or supersedes such
statement. Any statement contained in this registration statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document which 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.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law, as amended (the "GCL"), which provides
that 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
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 is or was a director, officer, employee or agent of the corporation,
or is or was serving at its request in such capacity of another corporation or
business organization 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 interest of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
person's conduct was unlawful. A Delaware corporation may indemnify officers and
directors in any action by or in the right of a 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.
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 (including attorneys' fees) that such officer or director
actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the GCL, which permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation 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 GCL (having to do with unlawful payment of dividends or
unlawful stock purchase redemptions) or (iv) for any transaction from which the
director derived an improper personal benefit.
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The certificate of incorporation of the Company provides for the
elimination of personal liability of a director for breach of fiduciary duty as
permitted by Section 102(b)(7) of the GCL and the by-laws of the Company provide
that the Company shall indemnify its directors and officers to the full extent
permitted by Section 145 of the GCL.
The Company has directors and officers liability insurance
that insures the directors and officers of the Company against certain
liabilities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(A) The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number
4.1 ARRIS Group, Inc. Employee Stock Purchase Plan, as amended,
incorporated by reference to Appendix A of ARRIS Group, Inc.'s
Definitive Proxy Statement filed with the Commission on April
22, 2003.
5.1 Opinion of Troutman Sanders LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Troutman Sanders LLP, included in the opinion filed
as Exhibit 5.1 hereto
24.1 Power of Attorney (included in the signature page of this
Registration Statement).
Item 9. Undertakings.
(a) Rule 415 offerings. 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. Notwithstanding the foregoing,
any increase or decrease in 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 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
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(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 (a)(1)(i) and
(a)(1)(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 Securities Exchange Act of
1934 that are incorporated by reference 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.
(b) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 the initial bona fide offering thereof.
(c) Filing of registration statement on Form S-8. 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 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.
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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 Duluth, Georgia, on this 6th day of June, 2003.
ARRIS GROUP, INC.
By: /s/ Robert J. Stanzione
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Robert J. Stanzione
President, Chief Executive Officer and Chairman of
the Board
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Stanzione, Lawrence A. Margolis
and David B. Potts, and each of them, such person's true and lawful
attorney-in-fact and agent, with full powers of substitution and resubstitution,
for such person and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this registration statement
(including any post-effective amendments thereto), and to file the same, with
all exhibits thereto, and other documents in connection therewith with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and to perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully and to
all intents and purposes as he or she might or would do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or their
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement, as amended, has been signed by the following persons in
the capacities indicated below on this 6th day of June, 2003.
Signature Title
/s/ Robert J. Stanzione President, Chief Executive Officer
------------------------------- (Principal Executive Officer) and Chairman
Robert J. Stanzione of the Board
/s/ Lawrence A. Margolis Executive Vice President and Chief Financial
------------------------------- Officer (Principal Financial and Accounting
Lawrence A. Margolis Officer)
/s/ Alex B. Best Director
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Alex B. Best
/s/ Harry L. Bosco Director
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Harry L. Bosco
/s/ John Anderson Craig Director
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John (Ian) Anderson Craig
/s/ Randy K. Dodd Director
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Randy K. Dodd
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/s/ Matthew B. Kearney Director
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Matthew B. Kearney
/s/ William H. Lambert Director
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William H. Lambert
/s/ John R. Petty Director
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John R. Petty
Director
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Larry Romrell
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EXHIBIT INDEX
Exhibit
Number
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4.1 ARRIS Group, Inc. Employee Stock Purchase Plan, as amended,
incorporated by reference to Appendix A of ARRIS Group, Inc.'s
Definitive Proxy Statement filed with the Commission on April 22, 2003.
5.1 Opinion of Troutman Sanders LLP
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Troutman Sanders LLP, included in the opinion filed as
Exhibit 5.1 hereto
24.1 Power of Attorney (included in the signature page of this Registration
Statement).