As filed with the Securities and Exchange Commission on June 4, 1998.
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZMAX CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 52-2040275
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(State or other jurisdiction of (IRS Employer Identification
incorporation or organization) Number)
20251 CENTURY BOULEVARD
GERMANTOWN, MARYLAND 20874
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(Address of Principal Executive Offices including Zip Code)
ZMAX CORPORATION
1997 STOCK INCENTIVE PLAN
ZMAX CORPORATION
1997 DIRECTORS FORMULA
STOCK OPTION PLAN
MICHAEL C. HIGGINS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ZMAX CORPORATION
20251 CENTURY BOULEVARD
GERMANTOWN, MARYLAND 20874
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(Name and Address of Agent for Service)
(301) 353-9500
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(Telephone Number, Including Area Code, of Agent for Service)
COPIES OF COMMUNICATIONS TO:
MICHAEL C. HIGGINS MICHAEL H. CHANIN,ESQ.
PRESIDENT AND CHIEF EXECUTIVE OFFICER POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
ZMAX CORPORATION SIXTH FLOOR
20251 CENTURY BOULEVARD 1001 PENNSYLVANIA AVENUE, N.W.
GERMANTOWN, MARYLAND 20874 WASHINGTON, D.C. 30303
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to Be Offering Price Aggregate Offering Amount of
To Be Registered Registered(1) Per Share(2) Price(2) Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share........ 1,820,000 $ 9.42 $ 17,144,400 $ 5,057.60
============================================================================================================
<FN>
(1) Plus an indeterminate number of shares of Common Stock that may be
issuable by reason of stock options, stock dividends or similar
transactions in accordance with Rule 416 under the Securities Act of
1933.
(2) The amounts are based on the average of the high and low prices for the
Common Stock as reported in the NASDAQ Small Cap Market on May 28, 1998,
in accordance with paragraphs (c) and (h)(i) of Rule 457 under the
Securities Act of 1933.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I will
be sent or given to employees as specified by Rule 428(b)(1) under the
Securities Act of 1933.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1998 (File No. 000-23967);
(2) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 (File No. 000-23967); and
(3) The description of the Registrant's Common Stock contained on the
Registrant's Registration Statement on Form 8-A as filed with the
Commission on March 27, 1998 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
(File No. 000-23967).
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 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
be part thereof from the date of filing of such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is organized under the laws of the State of Delaware. The
Delaware General Corporation Law, as amended (the "DGCL"), provides that a
Delaware corporation has the power generally to indemnify its directors,
officers, employees and other agents (each, a "Corporate Agent") against
expenses and liabilities (including amounts paid in settlement) in connection
with any proceeding involving such person by reason of his being a Corporate
Agent, other than a proceeding by or in the right of the corporation, if such
person 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, with respect to any
criminal proceeding, such person had no reasonable cause to believe his
conduct was unlawful. In the case of an action brought by or in the right of
the corporation, indemnification of a Corporate Agent against expenses is
permitted if such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation;
however, no indemnification is permitted in respect of any claim, issue or
matters 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 proceeding was brought shall determine upon application
<PAGE>
that despite the adjudication of liability, but in view of all circumstances
of the case, such person is fairly and reasonably entitled to such
indemnification. To the extent that a director or officer has been successful
on the merits of such proceeding, whether or not by or in the right of the
corporation, or in the defense of any claim, issue or matter therein, the
corporation is required to indemnify such director or officer for expenses in
connection therewith pursuant to the DGCL. To the extent that an employee or
agent has been successful on the merits of such proceeding, whether or not by
or in the right of the corporation, or in the defense of any claim, issue or
matter therein, the corporation is only required to indemnify such employee or
agent for expenses in connection therewith if required by the corporation's
certificate of incorporation or bylaws or by a contract or board resolution.
The elimination of statutory mandatory indemnification for employees and
agents is, however, effective only with respect to acts or omissions occurring
on or after July 1, 1997. Expenses incurred by a Corporate Agent in connection
with a proceeding may, under certain circumstances, be paid by the corporation
in advance of the final disposition of the proceeding as authorized by the
board of directors. The power to indemnify and advance the expenses under the
DGCL does not exclude other rights to which a Corporate Agent may be entitled
under the certificate of incorporation, bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
Under the DGCL, a Delaware corporation has the power to purchase and
maintain insurance on behalf of any Corporate Agent against any liabilities
asserted and incurred by him in such capacity, whether or not the corporation
has the power to indemnify him against such liabilities under the DGCL.
As permitted by the DGCL, the Registrant's Certificate of Incorporation,
as amended, and Bylaws, as amended and restated, contain a provision which
limit the personal liability of directors for all judgments, fines, penalties,
excise taxes, amounts paid in settlement and costs, charges and expenses
(including attorneys' fees and disbursements) for breach of their fiduciary
duties as directors except to the extent such limitation of liability is
prohibited by the DGCL. In accordance with the DGCL, these provisions do not
limit the liability of any director for any breach of the director's duty of
loyalty to the Registrant or its stockholders; for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; for certain unlawful payments of dividends or stock repurchases under
Section 174 of the DGCL; or for any transaction from which the director
derives an improper personal benefit. These provisions do not limit the rights
of the Registrant or any stockholder to seek an injunction or any other
non-monetary relief in the event of a breach of a director's fiduciary duty.
In addition, the Registrant's Bylaws, as amended and restated, provide
for the indemnification of officers, employees, agents or other individuals to
such extent and in such manner as determined by the Board of Directors in its
sole discretion to the extent authorized by the DGCL.
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<PAGE>
ITEM 8. EXHIBITS.
Exhibit No. Description
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5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
10.1 ZMAX Corporation 1997 Stock Incentive Plan.
(Incorporated herein by reference to Exhibit 10.1 to
the Registrant's Registration Statement on Form S-4
(File No. 333-29833).)
10.2 ZMAX Corporation 1997 Directors Formula Stock Option
Plan. (Incorporated herein by reference to Exhibit
10.3 to the Registrant's Registration Statement on
Form S-4 (File No. 333-29833).)
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in Exhibit No. 5 hereto).
23.2 Consent of Arthur Andersen LLP.
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<PAGE>
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: 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.
(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) 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 the time shall be deemed to be the initial BONA FIDE offering
thereof.
(c) 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 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 Act
and will be governed by the final adjudication of such issue.
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<PAGE>
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, hereunto
duly authorized, in the City of Germantown, State of Maryland, on this 28th
day of May, 1998.
ZMAX CORPORATION
By:/s/MICHAEL C. HIGGINS
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Michael C. Higgins
Chief Executive Officer and President
By:/s/G.W. NORMAN WAREHAM
----------------------
G. W. Norman Wareham
Vice President, Chief Financial Officer,
Treasurer and Secretary
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<PAGE>
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/MICHAEL C. HIGGINS Director May 28, 1998
----------------------
Michael C. Higgins
/s/G.W. NORMAN WAREHAM Director May 28, 1998
----------------------
G. W. Norman Wareham
/s/MICHEL BERTY Director May 28, 1998
----------------------
Michel Berty
/s/STEVE KOMAR Director May 28, 1998
----------------------
Steve Komar
/s/TED FINE Director May 28, 1998
----------------------
Ted Fine
/s/EDWARD YOURDON Director May 28, 1998
----------------------
Edward Yourdon
/s/MELVIN MCCUBBIN Director May 28, 1998
----------------------
Melvin McCubbin
</TABLE>
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<PAGE>
EXHIBIT INDEX
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Exhibit No. Description
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5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
10.1 ZMAX Corporation 1997 Stock Incentive Plan.
(Incorporated herein by reference to Exhibit 10.1 to
the Registrant's Registration Statement on Form S-4
(File No. 333-29833).)
10.2 ZMAX Corporation 1997 Directors Formula Stock Option
Plan. (Incorporated herein by reference to Exhibit
10.3 to the Registrant's Registration Statement on
Form S-4 (File No. 333-29833).)
23.1 Consent of Powell, Goldstein, Frazer & Murphy LLP
(contained in Exhibit No. 5 hereto).
23.2 Consent of Arthur Andersen LLP.
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EXHIBIT 5
May 29, 1998
ZMAX Corporation
20251 Century Boulevard
Germantown, Maryland 20874
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel for ZMAX Corporation, a Delaware corporation
(the "Company"), in connection with the registration under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") of an aggregate of 1,820,000 shares (the "Shares")
of common stock, par value $.001 per share, of the Company, to be offered and
sold by the Company pursuant to the ZMAX Corporation 1997 Stock Incentive Plan
and the ZMAX Corporation 1997 Directors Formula Stock Option Plan (the
"Employee Benefit Plans").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the adoption of the Employee Benefit Plans as we have deemed
necessary and advisable.
In all such examinations, we have assumed the genuineness of all
signatures on all originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and the conformity
to original documents of all certified, conformed or photostatic copies. As to
questions of fact material and relevant to our opinion, we have relied upon
certificates or representations of Company officials and of appropriate state,
local and federal officials.
Based upon and subject to the foregoing and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized; and
2. Upon the issuance and delivery of the Shares upon receipt of
lawful consideration therefor pursuant to the Employee Benefit
Plans, such Shares will be validly issued, fully paid and
non-assessable.
<PAGE>
ZMAX Corporation
May 6, 1998
Page 2
We hereby consent to the filing of this opinion on exhibit 23.1 to the
Registration Statement. In giving such consent we do not concede that we are
experts within the meaning of the Act.
Very truly yours,
/s/POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
-----------------------------------------
Powell, Goldstein, Frazer & Murphy LLP
2
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 27, 1998 included in ZMAX Corporation's Annual Report on Form 10-K for
the year ended December 31, 1997 and to all references to our Firm included in
or made a part of this registration statement filed on Form S-8.
/s/ARTHUR ANDERSEN LLP
----------------------
ARTHUR ANDERSEN LLP
Washington, D.C.
May 28, 1998
