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As filed with the Securities and Exchange Commission on September 29, 1997
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
_______________________
MATRIX CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
COLORADO 84-1233716
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1380 LAWRENCE STREET, SUITE 1410
DENVER, COLORADO 80204
(Address of principal executive offices) (Zip Code)
_______________________
1996 AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN FOR MATRIX CAPITAL
CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN FOR MATRIX CAPITAL CORPORATION
(Full title of the plans)
_______________________
GUY A. GIBSON COPY TO:
PRESIDENT T. ALLEN MCCONNELL, ESQ.
MATRIX CAPITAL CORPORATION JENKENS & GILCHRIST
1380 LAWRENCE STREET, SUITE 1410 A PROFESSIONAL CORPORATION
DENVER, COLORADO 80204 1445 ROSS AVENUE, SUITE 3200
(303)595-9898 DALLAS, TEXAS 75202
(Name, address and telephone number
including area code of agent for service)
______________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1)(2) PER SHARE (3)(4) PRICE (3)(4) FEE (3)(4)
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$0.0001 par value
per share 650,000 SHARES $17.25 $9,670,238 $2,931
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(1) The securities to be registered include 525,000 shares reserved for
issuance under the 1996 Amended and Restated Employee Stock Option Plan of
the registrant and 125,000 shares reserved for issuance under the 1996
Employee Stock Purchase Plan of the registrant (together, the "Plans").
(2) Pursuant to Rule 416, this Registration Statement is deemed to include
additional shares of Common Stock issuable under the terms of the Plans to
prevent dilution resulting from any future stock split, stock dividend or
similar transaction.
(3) Estimated solely for the purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per
share of the Common Stock offered hereunder pursuant to the Plans is based
on (i) 433,050 shares of Common Stock originally reserved for issuance
under the Plans that are not currently subject to outstanding stock
options, at a price per share of $16.3125, which is the average of the
highest and lowest selling price per share of Common Stock on the Nasdaq
National Market on September 25, 1997 and (ii) the following 216,950 shares
of Common Stock reserved for issuance under the Plans and subject to stock
options already granted thereunder at the following exercise prices: (A)
99,450 shares at $10.00 per share, (B) 5,000 shares at $10.375 per share,
(C) 15,000 shares at $12.00 per share, (D) 2,500 shares at $13.59375 per
share, (E) 27,500 shares at $13.75 per share, (F) 25,000 shares at $13.88
per share, (G) 35,000 shares at $14.25 per share, (H) 5,000 shares at
$15.75 per share, and (I) 2,500 shares at $17.25 per share.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant hereby incorporates by reference in this Registration
Statement the following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission"):
(1) The Company's final prospectus dated September 24, 1997, filed with the
Commission pursuant to Rule 424(b)(4) on September 25, 1997.
(2) The Company's Quarterly Report on Form 10-Q filed with the Commission
for the quarter ended March 31, 1997.
(3) The Company's Quarterly Report on Form 10-Q filed with the Commission
for the quarter ended June 30, 1997.
(4) The Company's Current Report on Form 8-K, filed with the Commission on
February 20, 1997.
(5) The Company's Current Report on Form 8-K, filed with the Commission on
March 25, 1997.
(6) The description of the common stock, par value $0.0001 per share (the
"Common Stock"), of the Company set forth in the Registration Statement on Form
8-A, dated August 20, 1996.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Articles of Incorporation of the registrant, together with its
Bylaws, provide that the registrant shall indemnify officers and directors, and
may indemnify its other employees and agents, to the fullest extent permitted by
law. The laws of the State of Colorado permit, and in some cases require,
corporations to indemnify officers, directors, agents and employees who are or
have been a party to or are threatened to be made a party to litigation against
judgments, fines, settlements and reasonable expenses under certain
circumstances.
________________
* Information required for Part I and contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance
with Rule 428 of the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8.
1
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(b) The registrant has also adopted provisions in its Articles of
Incorporation that limit the liability of its directors to the fullest extent
permitted by the laws of the State of Colorado. Under the registrant's Articles
of Incorporation, and as permitted by the laws of the State of Colorado, a
director is not liable to the registrant or its shareholders for damages for
breach of fiduciary duty. Such limitation of liability does not affect liability
for (i) breach of the director's duty of loyalty, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of the
law, (iii) any transaction from which the director directly or indirectly
derived an improper personal benefit, or (iv) the payment of any unlawful
distribution.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this Registration
Statement.
Exhibit Description of Exhibit
------- ----------------------
4.1* Amended and Restated Articles of Incorporation (Exhibit 3.1)
4.2* Bylaws, as amended (Exhibit 3.1)
4.3* 1996 Amended and Restated Employee Stock Option Plan for Matrix
Capital Corporation (Exhibit 4.2)
4.4** Employee Stock Purchase Plan for Matrix Capital Corporation, as
amended (Exhibit 4.3)
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this Registration
Statement)
________________
* Filed as the exhibit shown in parenthesis contained in the Company's
registration statement on Form S-1 (No. 333-10223) effective October
17, 1996, incorporated herein by reference.
** Filed as the exhibit shown in parenthesis contained in the Company's
quarterly report on Form 10-Q for the quarter ended September 30,
1996, 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 to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change
to such information in this Registration Statement;
2
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(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; and
(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 this 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 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 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 of 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.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Denver, Colorado, on September 26, 1997:
MATRIX CAPITAL CORPORATION
By: /s/Guy A. Gibson
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Guy A. Gibson, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Guy A. Gibson and David W. Kloos,
and each of them, each with full power to act without the other, his true and
lawful attorneys-in-fact and agents, each with full power of substitution and
resubstitution for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration Statement, and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person hereby ratifying and
confirming that each of said attorneys-in-fact and agents or his substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates included:
SIGNATURE CAPACITY DATE
- --------- -------- ----
/s/Guy A. Gibson President, Chief Executive September 26, 1997
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Guy A. Gibson Officer (Principal Executive
Officer) and Director
/s/Richard V. Schmitz Chairman of the Board September 26, 1997
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Richard V. Schmitz
/s/D. Mark Spencer Vice Chairman of the Board September 26, 1997
- --------------------
D. Mark Spencer
/s/David W. Kloos Senior Vice President, Chief September 26, 1997
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David W. Kloos Financial Officer and Director
(Principal Financial and
Accounting Officer)
/s/Thomas M. Piercy Director September 26, 1997
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Thomas M. Piercy
/s/Stephen Skiba Director September 26, 1997
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Stephen Skiba
/s/David A. Frank Director September 26, 1997
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David A. Frank
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INDEX TO EXHIBITS
Exhibit Description of Exhibit
- ------- ----------------------
4.1* Amended and Restated Articles of Incorporation (Exhibit 3.1)
4.2* Bylaws, as amended (Exhibit 3.2)
4.3* 1996 Amended and Restated Employee Stock Option Plan for Matrix
Capital Corporation (Exhibit 4.2)
4.4** Employee Stock Purchase Plan for Matrix Capital Corporation, as
amended (Exhibit 4.3)
5.1 Opinion of Jenkens & Gilchrist, a Professional Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional Corporation
(included in their opinion filed as Exhibit 5.1 hereto)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (see signature page of this
Registration Statement)
________________
* Filed as the exhibit shown in parenthesis contained in the Company's
registration statement on Form S-1 (No. 333-10223) effective October
17, 1996, incorporated herein by reference.
** Filed as the exhibit shown in parenthesis contained in the Company's
quarterly report on Form 10-Q for the quarter ended September 30,
1996, incorporated herein by reference.
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EXHIBIT 5.1
[LETTERHEAD OF JENKENS & GILCHRIST]
September 29, 1997
Matrix Capital Corporation
1380 Lawrence Street, Suite 1410
Denver, Colorado 80204
Re: Matrix Capital Corporation - Registration Statement on Form S-8
Gentlemen:
We are counsel to Matrix Capital Corporation, a Colorado corporation (the
"Company"), and have acted as such in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about September 29, 1997,
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
650,000 shares (the "Shares") of the $0.0001 par value common stock (the "Common
Stock") of the Company that have been or may be issued by the Company under the
1996 Amended and Restated Employee Stock Option Plan for the Company and the
1996 Employee Stock Purchase Plan for the Company (together, the "Plans").
You have requested an opinion with respect to certain legal aspects of the
proposed offering. In connection therewith, we have examined and relied upon
the original, or copies identified to our satisfaction, of (1) Amended and the
Restated Articles of Incorporation and the Bylaws of the Company, as amended;
(2) minutes and records of the corporate proceedings of the Company with respect
to the establishment of the Plans, the issuance of the shares of Common Stock
pursuant to the Plans and related matters; (3) the Registration Statement and
exhibits thereto, including the Plans; and (4) such other documents and
instruments as we have deemed necessary for the expression of opinions herein
contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
me as originals, and the conformity to original documents of all documents
submitted to me as certified or photostatic copies. As to various questions of
fact material to this opinion, and as to the content and form of the Amended and
Restated Articles of Incorporation, the Bylaws, minutes, records, resolutions
and other documents or writings of the Company, we have relied, to the extent
deemed reasonably appropriate, upon representations or certificates of officers
or directors of the Company and upon documents, records and instruments
furnished to us by the Company, without independent check or verification of
their accuracy.
Based upon our examination, consideration of, and reliance on the documents
and other matters described above, and subject to the assumptions noted below,
we are of the opinion that the Company presently has available at least 650,000
shares of authorized but unissued and/or treasury shares of Common Stock from
which may be issued the 650,000 Shares of Common
<PAGE>
Matrix Capital Corporation
September 29, 1997
Page 2
Stock issued or proposed to be issued pursuant to the exercise of options
granted or shares sold under the Plans. Assuming that
(1) the shares to be granted or sold in the future will be duly granted in
accordance with the terms of the Plans;
(2) the Company maintains an adequate number of authorized but unissued
shares and/or treasury shares available for issuance to those persons issued
shares of Common Stock under the Plans; and
(3) the consideration for the shares of Common Stock issued pursuant to
the Plans is actually received by the Company as provided in the Plans (and/or
the agreements executed in connection with the Plans) and exceeds the par value
of such shares;
then the 650,000 Shares of Common Stock that may be issued in accordance with
the terms of the Plans will be, when and if issued, duly and validly issued,
fully paid and nonassessable.
The Company is a Colorado corporation. We are licensed to practice law
only in Texas. For purposes of expressing the opinions herein, we have assumed,
with your consent, that the law of the State of Texas is the same as the law of
the State of Colorado with respect to the matters covered. We hereby consent to
the filing of this opinion as an exhibit to the Registration Statement and to
references to me included in or made a part of the Registration Statement. In
giving this consent, we do not admit that we come within the category of persons
whose consent
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Matrix Capital Corporation
September 29, 1997
Page 3
is required under Section 7 of the Securities Act or the Rules and Regulations
of the Securities and Exchange Commission thereunder.
Very truly yours,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ Ronald J. Frappier
-----------------------------
Ronald J. Frappier,
Authorized Signatory
cc: David W. Kloos
T. Allen McConnell, Esq.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Matrix Capital Corporation
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- ) pertaining to the 1996 Amended and Restated Employee Stock Option
Plan and the 1996 Employee Stock Purchase Plan of Matrix Capital Corporation of
our report dated May 30, 1997, with respect to the consolidated financial
statements of Matrix Capital Corporation as of December 31, 1995 and 1996 and
for each of the three years in the period ended December 31, 1996 included in
the final prospectus of Matrix Capital Corporation dated September 24, 1997 and
made a part, pursuant to Rule 424(b)(4), of the Registration Statement on Form
S-1 (No. 333-34977) of Matrix Capital Corporation dated September 19, 1997,
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
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ERNST & YOUNG LLP
Phoenix, Arizona
September 26, 1997
