As filed with the Securities and Exchange Commission on May 7, 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
ZIX CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Texas 75-2216818
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Steve M. York
2711 N. Haskell Avenue 2711 N. Haskell Avenue
Suite 2300, LB 36 Suite 2300, LB 36
Dallas, Texas 75204-2960 Dallas, Texas 75204-2960
(214) 370-2000
(Address, including zip code, (Name, address, including zip code,
of principal executive offices) and telephone number, including area
code, of agent for service)
ZIX CORPORATION 2001 STOCK OPTION PLAN
(FULL TITLE OF THE PLAN)
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CALCULATION OF REGISTRATION FEE
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TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE(2)
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Common Stock, $.01 par
value 1,025,000 Shares $4.86 $4,981,500 $403
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(1) Securities being registered consist of 1,025,000 shares issuable upon
exercise of options under the Zix Corporation 2001 Stock Option Plan
(the "2001 Plan"). Pursuant to Rule 416(c) under the Securities Act of
1933, as amended (the "Securities Act"), this Registration Statement
also covers any additional shares of Common Stock that may be issuable
pursuant to the anti-dilution provisions of the 2001 Plan.
(2) Estimated solely for the purpose of calculating the registration fee.
The registration fee has been calculated in accordance with Rules
457(c) and 457(h) under the Securities Act on the basis of the average
of the high and low prices of the Common Stock as quoted on the NASDAQ
National Market System on April 30, 2003, which was $4.86.
EXPLANATORY STATEMENT
Shares of Common Stock of the Registrant for issuance upon exercise of
options under the 2001 Plan have heretofore been registered under Registration
Statements on Form S-8 Nos. 333-62604 and 333-104533. This Registration
Statement on Form S-8 registers an additional 1,025,000 shares of our common
stock available for issuance under the 2001 Plan.
PART I
The information specified in Part I of Form S-8 is contained in
documents sent or given to option holders in accordance with Rule 428 under the
Securities Act. Such documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute the Section 10(a) prospectus.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K, including audited
financial statements, for the Registrant's fiscal year ended December 31, 2002;
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the
end of the fiscal year covered by the Annual Report referred to in (a) above;
and
(c) A description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed with the Securities and
Exchange Commission on September 25, 1989, including any amendment or report
filed for the purpose of updating such description.
All reports or other 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 have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to automatically update and supersede the information contained in
this Registration Statement.
Any statement contained herein or in a document incorporated or deemed
to be incorporated herein by reference 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 herein by reference modifies or
supersedes such earlier 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Texas Business Corporation Act, the Registrant's
Articles of Incorporation provide that directors of the Registrant shall not be
personally liable to the Registrant or its shareholders for monetary damages for
breach of fiduciary duty as a director, except for liability for (i) any breach
of the director's duty of loyalty to the Registrant or its shareholders, (ii)
any act or omission not in good faith or which involves intentional misconduct
or a knowing violation of law, (iii) any transaction from which the director
derived any improper personal benefit, (iv) any act or omission where the
liability of the director is expressly provided by statute, or (v) any act
related to an unlawful stock repurchase or payment of a dividend. In addition,
the Registrant's Articles of Incorporation and Bylaws include certain provisions
permitted by the Texas Business Corporation Act whereby directors, officers,
employees, and agents of the Registrant generally are to be indemnified against
certain liabilities to the fullest extent authorized by the Texas Business
Corporation Act. Furthermore, the employment agreement between John A. Ryan and
us, dated November 14, 2001, provides Mr. Ryan, our chairman, president and
chief executive officer, with a contractual right to indemnification as an
officer and/or director of us as set forth in Article VII of our Restated
Bylaws, dated September 14, 1999. The registrant maintains insurance on behalf
of its directors and executive officers insuring them against any liability
asserted against them in their capacities as directors or officers or arising
out of such status.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page II-6 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) 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;
(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;
(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;
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provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall 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 Registrant 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 securities being registered which remain unsold at
the termination of the offering.
(b) 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 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 thereof.
(c) 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 provisions described in Item 6 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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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 Dallas, State of Texas on May 7, 2003.
ZIX CORPORATION
By: /s/ Steve M. York
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Steve M. York
Senior Vice President, Chief
Financial Officer and Treasurer
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 May 7, 2003.
SIGNATURE TITLE
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/*/ President, Chief
-------------------------------- Executive Officer and
(John A. Ryan) Director (Principal Executive
Officer)
/s/ Steve M. York Senior Vice President,
-------------------------------- Chief Financial Officer
(Steve M. York) and Treasurer (Principal
Financial and Accounting
Officer)
/*/ Director
--------------------------------
(Michael E. Keane)
/*/ Director
--------------------------------
(James S. Marston)
/*/ Director
--------------------------------
(Dr. Ben G. Streetman)
*By: /s/ Steve M. York
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Steve M. York
Attorney-in-Fact
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1* 2001 Stock Option Plan of the Registrant, effective as of May 6, 2003.
5.1* Opinion of Ronald A. Woessner as to the validity of the securities being registered.
23.1 Consent of Ronald A. Woessner (included in his opinion filed as Exhibit 5.1).
23.2* Consent of Ernst & Young LLP.
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*Filed electronically herewith.
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