AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 2005
REGISTRATION NO. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ZAPATA CORPORATION
(Exact name of Registrant as specified in its charter)
NEVADA 74-1339132
State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
100 MERIDIAN CENTRE, SUITE 350
ROCHESTER, NEW YORK 14618
(Address of principal executive offices, including zip code)
STOCK OPTION AGREEMENTS BETWEEN ZAPATA CORPORATION
AND EACH OF BRYAN G. GLAZER, EDWARD S. GLAZER,
DARCIE S. GLAZER, WARREN H. GFELLER, ROBERT V. LEFFLER, JR.
AND JOHN R. HALLDOW, EACH DATED AS OF MARCH 1, 2002
(Full title of the plan)
AVRAM A. GLAZER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ZAPATA CORPORATION
100 MERIDIAN CENTRE, SUITE 350
ROCHESTER, NEW YORK 14618
(585) 242-2000
(Name, address and telephone number, including area code, of agent for service)
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COPIES TO:
TYLER J. SAVAGE, ESQ.
WOODS OVIATT GILMAN LLP
700 CROSSROADS BUILDING
2 STATE STREET
ROCHESTER, NEW YORK 15614
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CALCULATION OF REGISTRATION FEE
AMOUNT TO PROPOSED
BE MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES REGISTERED OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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Common Stock, par value $0.01 per share: 48,000 $3.325 $159,600 $18.79
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(1) Includes an indeterminate number of additional shares that may be necessary
to adjust the number of shares reserved for issuance pursuant to the
referenced stock option agreements as the result of any future stock split,
stock dividend or similar adjustment of Zapata's outstanding Common Stock.
(2) Based on the exercise price of the outstanding options being registered on
this Registration Statement pursuant to Rule 457(h) under the Securities Act
of 1933, as amended, (the "Securities Act").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
As permitted by the instructions to Form S-8, this Registration
Statement omits the information specified in Part I of Zapata's Registration
Statement on Form S-8.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference in this
Registration Statement:
(a) Zapata's Annual Report on Form 10-K for the year ended
December 31, 2004, filed on March 14, 2005, which contains audited financial
statements for the most recent fiscal year for which such statements have been
filed;
(b) Zapata's Quarterly Report on Form 10-Q for the period
ended March 31, 2005, filed on May 6, 2005;
(c) Zapata's Current Report on Form 8-K, filed on April 8,
2005;
(d) Zapata's Current Report on Form 8-K, filed on May 6, 2005;
and
(e) The description of Zapata's Common Stock contained in its
Current Report on Form 8-K filed March 17, 2003, including any amendments or
reports filed for the purpose of updating such description.
All documents filed by Zapata pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act of 1934, as amended (the "Exchange Act"), after the
date hereof, and prior to the filing of a post-effective amendment which
indicates that the securities offered hereby have been sold or which deregisters
the securities covered hereby then remaining unsold, shall also be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof commencing on the respective dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Woods Oviatt Gilman LLP, counsel to Zapata Corporation, has passed upon
the validity of the shares registered pursuant to this Registration Statement.
Gordon E. Forth, a partner of Woods Oviatt Gilman LLP, serves as the Secretary
of Zapata Corporation, and as Secretary of its subsidiary, Zap.Com Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 78.502 of the Nevada Revised Statutes ("NRS") 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, suit or
proceeding, whether civil, criminal, administrative or investigative, except an
action by or in the right of the corporation, by reason of the fact that he 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 entity, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with the action, suit or proceeding if he acted in good faith and in
a manner which he reasonably believe 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 his conduct was unlawful. With
respect to actions or suits by or in the right of the corporation, Section
78.7502 of the NRS provides that a corporation may indemnify those serving in
the capacities mentioned above against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably incurred in connection
with the defense or settlement of the action or suit, provided that such person
acted in good faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation. To the extent that a director,
officer, employee or agent of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding, or in defense of any claim, issue or matter therein, the corporation
shall indemnify him against expenses, including attorneys' fees, actually and
reasonably incurred by him in connection with the defense.
Section 78.751 of the NRS provides that the articles of incorporation,
the by-laws or an agreement made by the corporation may provide that the
expenses of officers and directors incurred in defending an action, suit or
proceeding must be paid by the corporation in advance of the final disposition
of the action, suit or proceeding, upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is ultimately
determined that he is not entitled to be indemnified by the corporation. Section
78.751 further provides that indemnification and advancement of expense
provisions contained in the NRS shall not be deemed exclusive of any rights to
which a director, officer, employee or agent may be entitled, whether contained
in the articles of incorporation or any by-law, agreement, vote of stockholders
or disinterested directors or otherwise, provided, however, that no
indemnification may be made to or on behalf of any director or officer if a
final adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action.
Zapata's articles of incorporation and by-laws limit the liability of
its directors and officers to the fullest extent permitted by Nevada law. This
is intended to allow Zapata's directors and officers the benefit of Nevada law
which provides that directors and officers of Nevada corporations may be
relieved of liabilities for damages for breach of their fiduciary duties as
directors and officers, except under certain circumstances, including (i) acts
or omissions which involve intentional misconduct, fraud or a knowing violation
of law, or (ii) the willful or grossly negligent payment of unlawful
distributions. Zapata's articles of incorporation and by-laws also permit Zapata
to advance expenses to its directors and officers to the fullest extent
permitted by Nevada law upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it should be ultimately determined
that they are not entitled to indemnification by Zapata.
In addition, Zapata has entered into indemnification agreements with
each of its directors and executive officers which provide for indemnification
to the fullest extent permitted by Nevada law and which require Zapata to
advance expenses to them upon the receipt of the proper undertaking. Zapata has
obtained officer and director liability insurance for its officers and directors
with respect to liabilities arising out of certain matters.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibit list attached to this Registration Statement is
incorporated herein in its entirety by reference as if fully set forth herein.
The exhibit indicated by an (*) are incorporated by reference.
Exhibit
Number Description
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5.1 Opinion Letter of Woods Oviatt Gilman LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm
23.2 Consent of Woods Oviatt Gilman LLP (contained in opinion of Woods
Oviatt Gilman LLP set forth in Exhibit 5.1 above)
24.1 Power of Attorney
99.1* Stock Option Agreement between Zapata Corporation and Warren H.
Gfeller, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.2* Stock Option Agreement between Zapata Corporation and Bryan G.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.3* Stock Option Agreement between Zapata Corporation and Edward S.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.4* Stock Option Agreement between Zapata Corporation and Darcie S.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the year ended March 31, 2003 and
filed May 5, 2003) (File No. 001-04219)
99.5* Stock Option Agreement between Zapata Corporation and Robert V.
Leffler, Jr., dated as of March 1, 2002 (Exhibit No. 10(q) to
Zapata's Quarterly Report on Form 10-Q for the quarter ended March
31, 2003 and filed May 5, 2003) (File No. 001-04219)
99.6* Stock Option Agreement between Zapata Corporation and John R.
Halldow, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
ITEM 9. UNDERTAKINGS
(a) Zapata 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 this 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 this
Registration Statement; and
(iii) 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;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished by Zapata
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 that which remain unsold at the
termination of the offering.
(b) Zapata hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of Zapata's annual report
pursuant to Section 13(a) or 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 Zapata pursuant to the foregoing provisions, or otherwise, Zapata 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 Zapata of expenses incurred or paid by a
director, officer or controlling person of Zapata 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, Zapata
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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Zapata
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 Rochester, State of New York, on the 6th day of May,
2005.
ZAPATA CORPORATION
By: /s/ Leonard DiSalvo
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Name: Leonard DiSalvo
Title: Chief Financial Officer
INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion Letter of Woods Oviatt Gilman LLP
23.1 Consent of PricewaterhouseCoopers LLP, Independent Registered Public
Accounting Firm
23.2 Consent of Woods Oviatt Gilman LLP (contained in opinion of Woods
Oviatt Gilman LLP set forth in Exhibit 5.1 above)
24.1 Power of Attorney
99.1* Stock Option Agreement between Zapata Corporation and Warren H.
Gfeller, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.2* Stock Option Agreement between Zapata Corporation and Bryan G.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.3* Stock Option Agreement between Zapata Corporation and Edward S.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)
99.4* Stock Option Agreement between Zapata Corporation and Darcie S.
Glazer, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the year ended March 31, 2003 and
filed May 5, 2003) (File No. 001-04219)
99.5* Stock Option Agreement between Zapata Corporation and Robert V.
Leffler, Jr., dated as of March 1, 2002 (Exhibit No. 10(q) to
Zapata's Quarterly Report on Form 10-Q for the quarter ended March
31, 2003 and filed May 5, 2003) (File No. 001-04219)
99.6* Stock Option Agreement between Zapata Corporation and John R.
Halldow, dated as of March 1, 2002 (Exhibit No. 10(q) to Zapata's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2003
and filed May 5, 2003) (File No. 001-04219)