As filed with the Securities and Exchange Commission on March 23, 2001
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ACXIOM CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 71-0581897
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
P.O. Box 8180, 1 Information Way
Little Rock, Arkansas 72203-8180
(Address, including zip code, of
registrant's principal executive offices)
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ACXIOM CORPORATION
RETIREMENT SAVINGS PLAN
(Full title of the plan)
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Charles D. Morgan
Chairman of the Board and President
(Company Leader)
Acxiom Corporation
P.O. Box 8180, 1 Information Way
Little Rock, Arkansas 72203-8180
(501) 342-1000
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Jeffrey J. Gearhart
Kutak Rock LLP
425 West Capitol Avenue
Suite 1100
Little Rock, Arkansas 72201
(501) 975-3000
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Titles of Amount Maximum Maximum
Shares to be To Be Offering Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
Common Stock,
$.10 Par Value(1) 2,500,000 $21.00 $52,500,000.00 $13,125.00(2)
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Estimated solely for the purpose of calculating the registration
fee in accordance with Rule 457(h), based on the average of the reported high
and low sales prices of shares of Acxiom Common Stock on the NASDAQ on March 22,
2001.
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EXPLANATORY NOTE
The information called for by Part I of Form S-8 is included in the
Summary Plan Description of the Acxiom Corporation Retirement Savings Plan (the
"Plan") to be delivered to persons purchasing shares pursuant to the Plan.
Pursuant to the Note to Part I of Form S-8, that information is not being filed
with or included in this Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference the documents listed below, as of the date
of filing of such documents with the Securities and Exchange Commission:
(1) Our Annual Report on Form 10-K for the fiscal year ended March
31, 2000;
(2) Our Quarterly Report on Form 10-Q for the quarter ended June 30,
2000;
(3) Our Current Report on Form 8-K dated July 19, 2000;
(4) Our Quarterly Report on Form 10-Q for the quarter ended September
30, 2000;
(5) Our Quarterly Report on Form 10-Q for the quarter ended December
31, 2000;
(6) The description of our capital stock contained in the
registration statement on Form 8-A of CCX Network, Inc., which is
now known as Acxiom Corporation, dated February 4, 1985, and any
amendments or updates to that form; and
(7) The description of our preferred stock purchase rights contained
in the registration statement on Form 8-A dated January 28, 1998,
as amended by Form 8-A/A dated June 4, 1998.
In addition, all documents subsequently filed by us pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all shares then remaining unsold, shall be deemed to be incorporated
by reference in this registration statement and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for all purposes of this registration
statement to the extent that a statement contained herein or therein 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 such 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.
Exculpation. Section 102(b)(7) of the Delaware General Corporation Law
permits a corporation to include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision may not eliminate or limit the liability
of a director for any breach of the director's duty of loyalty to the
corporation or its stockholders, for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, for any
unlawful payment of dividends or unlawful stock purchase or redemption, or for
any transaction from which the director derived an improper personal benefit.
The Acxiom Charter provides that, to the fullest extent permitted by
Delaware corporate law, a director shall not be liable to Acxiom and its
stockholders for monetary damages for a breach of fiduciary duty as a director.
Indemnification. Section 145 of the Delaware corporate law permits a
corporation to indemnify any of its directors or officers who was or is a party
or is threatened to be made a party to any third party proceeding by reason of
the fact that such person is or was a director or officer of the corporation,
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
interests 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. In a derivative action, i.e., one by or in the right of a corporation,
the corporation is permitted to indemnify any of its directors or officers
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the corporation, and
except that no indemnification shall be made for any claim as to which such
person shall have been adjudged liable to the corporation, unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that such person is fairly and reasonably entitled to
indemnification for such expenses despite such adjudication of liability.
The Acxiom Charter provides for indemnification of directors and
officers of Acxiom against liability they may incur in their capacities as and
to the extent authorized by Delaware corporate law.
Insurance. Acxiom has in effect directors' and officers' liability
insurance and fiduciary liability insurance. The fiduciary liability insurance
covers actions of directors and officers as well as other employees with
fiduciary responsibilities under ERISA.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Specimen Common Stock Certificate (previously filed as Exhibit
4.1 to the Registrant's Registration Statement on Form S-4
(No. 333-61639) filed August 17, 1998 and incorporated herein
by reference).
4.2 Rights Agreement, dated January 28, 1998 between Acxiom and
First Chicago Trust Company of New York, as Rights Agent (the
"Rights Agreement"), including the forms of Rights Certificate
and of Election to Exercise, included in Exhibit A to the
Rights Agreement, and the form of Certificate of Designation
and Terms of Participating Preferred Stock of the Registrant,
included in Exhibit B to the Rights Agreement (previously
filed as Exhibit 4.1 to the Registrant's Current Report on
Form 8-K dated February 10, 1998, Commission File No. 0-13163,
and incorporated herein by reference).
4.3 Amendment No. 1, dated as of May 26, 1998, to the Rights
Agreement (previously filed as Exhibit 4 to the Registrant's
Current Report on Form 8-K dated June 4, 1998, Commission File
No. 0-13163, and incorporated herein by reference).
5.1 Opinion of Kutak Rock LLP as to the legality of the shares
being registered (filed herewith).
23.1 Consent of Kutak Rock LLP (included in the opinion in Exhibit
5.1).
23.2 Consent of KPMG LLP (filed herewith).
24.1 Powers of Attorney (filed herewith).
In lieu of the opinion of counsel or determination letter contemplated
by Item 601(b)(5)(ii) of Regulation S-K, we hereby confirm that we have
submitted the Plan and undertake that we will submit all amendments thereto to
the Internal Revenue Service ("IRS") in a timely manner, and that we have made
or will make all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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, as amended (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. 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) (230.424(b) of the Securities Act) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective 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 the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the registration statement is on Form
S-3 (239.13 of the Securities Act), Form S-8 (239.16b of the
Securities Act) or Form F-3 (239.33 of the Securities Act),
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 Section 15(d) of the
Securities Exchange Act of 1934 (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 which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby further 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 the 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 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.
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 Little Rock, State of Arkansas, on March 23, 2001.
ACXIOM CORPORATION
By: /s/ Catherine L. Hughes
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Catherine L. Hughes
Secretary and Corporate Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated, on March 23, 2001:
Signature Title
/s/ Caroline Rook * Financial Operations Leader
- ----------------------------------- (Principal Financial Officer and
(Caroline Rook) Principal Accounting Officer)
/s/ Dr. Ann H. Die * Director
- -----------------------------------
(Dr. Ann H. Die)
/s/ William T. Dillard II* Director
- -----------------------------------
(William T. Dillard II)
/s/ Harry C. Gambill * Director
- -----------------------------------
(Harry C. Gambill)
/s/ Rodger S. Kline * Director
- -----------------------------------
(Rodger S. Kline)
/s/ Thomas F. (Mack) McLarty, III* Director
- -----------------------------------
(Thomas F. (Mack) McLarty, III)
/s/ Charles D. Morgan * Company Leader
- ----------------------------------- (Principal Executive Officer)
(Charles D. Morgan)
/s/ Stephen M. Patterson* (Director)
- -----------------------------------
(Stephen M. Patterson)
II-5
/s/ James T. Womble * Director
- -----------------------------------
(James T. Womble)
*By: /s/ Catherine L. Hughes
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(Catherine L. Hughes, Attorney-in-Fact)
Pursuant to the requirements of the Securities Act of 1933, the plan sponsor has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Little Rock, State of
Arkansas, on March 23, 2001.
ACXIOM CORPORATION RETIREMENT
SAVINGS PLAN
By: /s/ Caroline Rook
-----------------------------------------
Caroline Rook
Plan Sponsor
Acxiom Corporation
INDEX TO EXHIBITS
Number Exhibit
4.1 Specimen Common Stock Certificate (previously filed as Exhibit
4.1 to the Registrant's Registration Statement on Form S-4 (No.
333-61639) filed August 17, 1998 and incorporated herein by
reference).
4.2 Rights Agreement, dated January 28, 1998 between Acxiom and First
Chicago Trust Company of New York, as Rights Agent (the "Rights
Agreement"), including the forms of Rights Certificate and of
Election to Exercise, included in Exhibit A to the Rights
Agreement, and the form of Certificate of Designation and Terms
of Participating Preferred Stock of the Registrant, included in
Exhibit B to the Rights Agreement (previously filed as Exhibit
4.1 to the Registrant's Current Report on Form 8-K dated February
10, 1998, Commission File No. 0-13163, and incorporated herein by
reference).
4.3 Amendment No. 1, dated as of May 26, 1998, to the Rights
Agreement (previously filed as Exhibit 4 to the Registrant's
Current Report on Form 8-K dated June 4, 1998, Commission File
No. 0-13163, and incorporated herein by reference).
5.1 Opinion of Kutak Rock LLP as to the legality of the shares being
registered (filed herewith).
23.1 Consent of Kutak Rock LLP (included in the opinion in Exhibit
5.1).
23.2 Consent of KPMG LLP (filed herewith).
24.1 Powers of Attorney (filed herewith).
Exhibit 5.1
March 23, 2001
Acxiom Corporation
P.O. Box 8180, 1 Information Way
Little Rock, Arkansas 72203
Re: REGISTRATION ON FORM S-8 OF SHARES OF COMMON STOCK
PAR VALUE $.10 PER SHARE, OFFERED PURSUANT TO ACXIOM
CORPORATION RETIREMENT SAVINGS PLAN
Ladies and Gentlemen:
We are acting as counsel to Acxiom Corporation, a Delaware corporation
(the "Company") in connection with the registration under the Securities Act of
1933, as amended, of shares (the "Shares") of common stock, par value $.10 per
share, of the Company to be issued pursuant to the Acxiom Corporation Retirement
Savings Plan (the "Plan").
We have examined such documents, records, and matters of law as we have
deemed necessary for purposes of this opinion. Based on such examination and on
the assumptions set forth below, we are of the opinion that the Shares to be
offered and sold, when issued and delivered in accordance with the terms and
provisions of the Plan against receipt of the consideration provided for
therein, will be validly issued, fully paid, and nonassessable.
In rendering this opinion, we have (i) assumed and have not
independently verified (a) the due authorization, execution and delivery of the
Plan, (b) that all signatures on all certificates and other documents examined
by us are genuine, and that, where any such signature purports to have been made
in a corporate, governmental or other capacity, the person who affixed such
signature to such certificate or other document had authority to do so, and (c)
the authenticity of all documents submitted to us as originals and the
conformity to original documents of all documents submitted to us as copies, and
(ii) as to certain factual matters, relied upon certificates of public officials
and of the Company and its officers and have not independently checked or
verified the accuracy of the factual statements contained therein. In addition,
our examination of matters of law has been limited to the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America, in each case in effect on the date hereof.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Kutak Rock LLP
Exhibit 23.2
Independent Auditors' Consent
To the Board of Directors
Acxiom Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-8 filed herewith of Acxiom Corporation of our reports dated May 2, 2000,
relating to the consolidated balance sheets of Acxiom Corporation and
subsidiaries as of March 31, 2000 and 1999, and the related consolidated
statements of operations, stockholders' equity and cash flows and financial
statement schedule for each of the years in the three-year period ended March
31, 2000, which reports appear in the March 31, 2000 annual report on Form 10-K
of Acxiom Corporation.
/s/ KPMG LLP
Dallas Texas
March 22, 2001
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That the undersigned, a director or
officer, or both, of Acxiom Corporation ("Acxiom"), acting pursuant to
authorization of the Board of Directors of Acxiom, hereby appoints Catherine L.
Hughes and Robert S. Bloom, or any one of them, attorneys-in-fact and agents for
me and in my name and on my behalf, individually and as a director or officer,
or both, of Acxiom, to sign a Registration Statement on Form S-8, together with
all necessary exhibits, and any amendments (including post effective amendments)
and supplements thereto, to be filed with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to (i) the issuance
and sale of up to 2,500,000 shares of common stock, $.10 par value, of Acxiom to
be issued and delivered in accordance with the Acxiom Corporation Retirement
Savings Plan (the "Plan") and (ii) an indeterminate number of interests to be
offered or sold pursuant to the Plan, and generally to do and perform all things
necessary to be done in connection with the foregoing as fully in all respects
as I could do personally.
IN WITNESS WHEREOF, I have hereunto set my hand as of this 7th day of
February, 2001.
Signed: /s/ Dr. Ann H. Die
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Name: DR. ANN H. DIE
Signed: /s/ William T. Dillard II
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Name: WILLIAM T. DILLARD II
Signed: /s/ Harry C. Gambill
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Name HARRY C. GAMBILL
Signed: /s/ Rodger S. Kline
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Name: RODGER S. KLINE
Signed: /s/ Thomas F. (Mack) McLarty, III
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Name: THOMAS F. (MACK) McLARTY, III
Signed: /s/ Charles D. Morgan
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Name: CHARLES D. MORGAN
Signed: /s/ Stephen M. Patterson
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Name: STEPHEN M. PATTERSON
Signed: /s/ Caroline Rook
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Name: CAROLINE ROOK
Signed: /s/James T. Womble
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Name: JAMES T. WOMBLE