As filed with the Securities and Exchange Commission on March 7, 2002.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ZIXIT CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 75-2216818
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2711 N. HASKELL AVENUE
SUITE 2300, LB 36
DALLAS, TEXAS 75204-2960
(214) 370-2000
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
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STEVE M. YORK
CHIEF FINANCIAL OFFICER
2711 N. HASKELL AVENUE
SUITE 2300, LB 36
DALLAS, TEXAS 75204-2960
(214) 370-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------
Approximate date of commencement of proposed sale to the public: From
time-to-time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 of the Securities
Act of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [ ]
CALCULATION OF REGISTRATION FEE
================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SHARES TO BE AGGREGATE PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
----------------------------------------------------------------------------------------------------------------
Common Stock,
$.01 par value 916,667 $3.97 $3,639,168 $334.80
================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rule 457(c) under the Securities Act, based on the average
of the high and low prices of the common stock on The Nasdaq Stock
Market on February 28, 2002.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
The information in this prospectus is not complete and may be changed. The
selling shareholders may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell these securities, and we are not soliciting
offers to buy these securities in any state where the offer or sale is not
permitted.
Subject to Completion
March 7, 2002
ZIXIT CORPORATION
916,667 SHARES
COMMON STOCK
----------
This prospectus relates to an offering of up to 916,667 shares of our
common stock, par value $.01 per share, which are issuable to the selling
shareholders upon the exercise of certain common stock warrants. The warrants
were issued to the selling shareholders on March 1, 2002 in connection with
David P. Cook's transfer of his own employee stock options to acquire 916,667
shares of common stock back to us, and our issuance of warrants for the same
number of shares to the selling shareholders on substantially the same terms and
conditions as those governing Mr. Cook's original stock options.
The common stock being registered is being offered for the account of
those security holders described under "Selling Shareholders" on page 8. We will
not receive any proceeds from the sale of the shares of common stock offered
under this prospectus.
The shares may be offered in transactions on The Nasdaq Stock Market,
in negotiated transactions, or through a combination of methods of distribution,
at prices relating to the prevailing market prices, at negotiated prices or at
fixed prices that may be changed. Please see "Plan of Distribution" on page 11.
Our common stock is quoted on The Nasdaq Stock Market under the symbol
"ZIXI." On March 5, 2002, the last sale price of our common stock, as reported
on Nasdaq, was $5.00 per share.
----------
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE
SHARES ONLY IF YOU CAN AFFORD A LOSS OF ALL OR A PORTION OF YOUR INVESTMENT.
PLEASE SEE "RISK FACTORS" BEGINNING ON PAGE 1.
----------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR
ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED
OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
----------
The date of this prospectus is March 7, 2002.
TABLE OF CONTENTS
ZixIt Corporation............................................................1
Risk Factors.................................................................1
Documents Incorporated by Reference..........................................7
Where You Can Get More Information...........................................8
Selling Shareholders.........................................................8
Plan of Distribution........................................................11
Use of Proceeds.............................................................12
Indemnification of Directors and Officers...................................12
Legal Matters...............................................................13
Experts.....................................................................13
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS AND NOT ON
ANY UNAUTHORIZED INFORMATION OR REPRESENTATIONS. NEITHER ZIXIT CORPORATION NOR
ANY OF ITS REPRESENTATIVES HAS AUTHORIZED ANYONE TO PROVIDE PROSPECTIVE
INVESTORS WITH ANY INFORMATION OR TO REPRESENT ANYTHING NOT CONTAINED IN OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS. FURTHERMORE, NO DEALER,
SALESPERSON OR OTHER PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO
REPRESENT ANYTHING NOT CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS. THIS PROSPECTUS IS AN OFFER TO SELL ONLY THE SHARES OFFERED BY THIS
PROSPECTUS, BUT ONLY UNDER THE CIRCUMSTANCES AND IN JURISDICTIONS WHERE IT IS
LAWFUL TO DO SO. THE INFORMATION CONTAINED IN THIS PROSPECTUS IS CURRENT ONLY AS
OF ITS DATE, REGARDLESS OF THE TIME OF THE DELIVERY OF THIS PROSPECTUS OR ANY
SALE OF THESE SECURITIES.
ii
ZIXIT CORPORATION
Prior to 1999, we provided systems and solutions for the intelligent
transportation, electronic security and other markets. Our operations included
the design, manufacturing, installation and support of hardware and software
products utilizing our wireless data and security technologies. We sold the
businesses comprising this industry segment during 1998 and 1997.
Since January 1999, we have been developing and marketing products and
services that bring privacy, security and convenience to Internet users.
ZixMail(TM) is a secure email application and messaging service that enables
Internet users worldwide to easily send encrypted, digitally-signed
communications to any email address in the world, even if the recipient does not
subscribe to ZixMail. We recently announced two new products, ZixBlast(TM),
which is now generally available, and ZixVPM(TM) (Zix Virtual Private
Messenger), which is scheduled to be released in the Spring of 2002. ZixBlast,
priced on a transaction basis, will allow enterprises to track messages and
receive cumulative reports detailing receipt confirmations for customized,
encrypted, time and date stamped emails sent via ZixMail to large volumes of
recipients. ZixVPM is a server-based, highly secure enterprise-wide solution for
email sent over the Internet that allows IT administrators to ensure that all
email sent beyond a company's firewall by specified individuals or departments
is encrypted.
We were incorporated in Texas in 1988. Our executive offices are
located at 2711 North Haskell Avenue, Suite 2300, LB 36, Dallas, Texas
75204-2960, and our telephone number is (214) 370-2000. Our Web site address is
www.zixit.com. Information contained on our Web site is not a part of this
prospectus. In this prospectus, "we," "us," "our" and "ZixIt" refer to ZixIt
Corporation and its subsidiaries unless the context otherwise requires.
RISK FACTORS
The following is a "safe harbor" statement under the Private Securities
Litigation Reform Act of 1995: Certain matters discussed in this prospectus
contain statements that constitute forward-looking statements within the meaning
of Section 21E of the Securities Exchange Act of 1934, as amended (we refer to
it as the "Exchange Act"). The words "expect," "estimate," "anticipate,"
"predict," "believe," "plan," "should," "goal" and similar expressions and
variations thereof are intended to identify forward-looking statements. We
caution you that any such forward-looking statements are not guarantees of
future performance and involve risks and uncertainties, and that actual results
may differ materially from those projected in the forward-looking statements as
a result of various factors.
Before investing in our common stock offered by this prospectus, you
should carefully consider the following risks and uncertainties, in addition to
the other information contained or incorporated by reference in this prospectus.
Also, you should be aware that the risks and uncertainties described below are
not the only ones facing us. Additional risks and uncertainties that we do not
yet know of or that we currently think are immaterial may also impair our
business operations. If any of those risks or uncertainties or any of the risks
and uncertainties described below actually occur, our business, financial
condition, prospects or results of
1
operations could be materially and adversely affected. In that case, the trading
price of the common stock offered in this prospectus could decline, and you may
lose all or part of your investment.
WE HAVE NO SIGNIFICANT REVENUES, AND WE MAY NOT BE ABLE TO RAISE NEEDED
FUNDS.
We currently have no significant revenues; however, we believe existing
cash and marketable securities combined with the scheduled installment payments
due from resellers and distributors are sufficient to sustain our estimated
level of operating expenditures through the end of the first quarter of 2003. We
are considering various capital funding alternatives in order to strengthen our
financial position. We cannot assure you that we will be able to raise
additional capital on satisfactory terms, if and when needed.
THE MARKET MAY NOT BROADLY ACCEPT OUR PRODUCTS AND SERVICES, WHICH
WOULD PREVENT US FROM OPERATING PROFITABLY.
We must be able to achieve broad market acceptance for our products and
services in order to operate profitably. We have not yet been able to do this.
To our knowledge, there are currently no secure Internet communications and
e-commerce businesses similar to ours, that currently operate at the scale that
we would require, at our current expenditure levels and proposed pricing, to
become profitable. There is no assurance that our products and services will
become generally accepted or that they will be compatible with any standards
that become generally accepted, nor is there any assurance that enough paying
users will ultimately be obtained to enable us to operate profitably.
WE ARE RELYING ON ESTABLISHING AND MAINTAINING STRATEGIC AND OTHER
COLLABORATIVE RELATIONSHIPS TO GAIN CUSTOMERS AND GROW REVENUES. FAILURE TO
ESTABLISH AND MAINTAIN SUCH RELATIONSHIPS WOULD RESULT IN REDUCED REVENUES.
One of our primary business strategies has been to enter into strategic
or other similar collaborative relationships to reach a larger customer base
than we can reach through our direct sales and marketing efforts. To date, these
strategic and collaborative business relationships have not yielded any
significant revenues.
Assuming we are successful in entering into business relationships that
yield revenues, we will want to maintain these relationships and enter into
additional relationships to successfully execute our business plan. If we are
unable to do so, we will have to devote substantially more resources to the
distribution, sale and marketing of our products and services than we would
otherwise.
Furthermore, our ability to achieve future growth will also depend on
our ability to continue to establish direct seller channels and to develop
multiple distribution channels. Failure to enter into productive reseller
arrangements could harm our business.
2
OUR INDUSTRY IS HIGHLY COMPETITIVE AND, IF WE DO NOT COMPETE
EFFECTIVELY, WE MAY SUFFER PRICE REDUCTIONS, REDUCED GROSS MARGINS AND LOSS OF
MARKET SHARE.
We anticipate that the secure Internet communications business will
remain intensely competitive. We compete with larger and smaller companies that
provide products and services that are similar to ours. Our competitors may
develop new technologies in the future that are perceived as being more secure,
effective or cost efficient than the technology underlying our products and
services. We expect that competition will increase in the near term and that our
primary long-term competitors may not yet have entered the market. Increased
competition could result in pricing pressures, reduced margins or the failure of
our secure Internet communications business to achieve or maintain market
acceptance, any of which could harm our business.
OUR INABILITY TO INTRODUCE NEW PRODUCTS AND SERVICES AND TO IMPLEMENT
TECHNOLOGICAL CHANGES COULD HARM OUR BUSINESS.
The emerging nature of the Internet and the secure Internet
communications business and their rapid evolution, require us continually to
provide new products and services and to improve the performance, features and
reliability of our existing products and services, particularly in response to
competitive offerings. The success of new or enhanced products and services
depends on several factors, including timely completion, introduction and market
acceptance. We may not succeed in developing and marketing new or enhanced
products and services that respond to competitive and technological developments
and changing customer needs. This could harm our business.
IF THE MARKET FOR SECURE INTERNET AND E-COMMERCE DOES NOT CONTINUE TO
GROW, DEMAND FOR OUR PRODUCTS AND SERVICES WILL BE ADVERSELY AFFECTED.
The market for secure Internet and e-commerce is at an early stage of
development. Continued growth of the secure Internet and e-commerce market will
depend, in part, on the following:
o the continued expansion of Internet usage and the number of
organizations adopting or expanding intranets and extranets;
and
o the public recognition of the potential threat posed by
computer hackers and other unauthorized users.
A decline in the growth of this market could reduce demand for our
products and services, which would harm our business.
3
CAPACITY LIMITS ON OUR TECHNOLOGY AND NETWORK HARDWARE AND SOFTWARE MAY
BE DIFFICULT TO PROJECT, AND WE MAY NOT BE ABLE TO EXPAND AND UPGRADE OUR
SYSTEMS TO MEET INCREASED USE, WHICH WOULD RESULT IN REDUCED REVENUES.
As traffic from our customers through our network increases, we may
need to expand and upgrade our technology and network hardware and software. We
may not be able to accurately project the rate of increase in usage on our
network. In addition, we may not be able to expand and upgrade, in a timely
manner, our systems and network hardware and software capabilities to
accommodate increased traffic on our network. If we do not timely and
appropriately expand and upgrade our systems and network hardware and software,
we may lose customers and revenues.
SECURITY INTERRUPTIONS TO OUR SECURE DATA CENTER COULD DISRUPT OUR
BUSINESS, AND ANY SECURITY BREACHES COULD EXPOSE US TO LIABILITY AND NEGATIVELY
IMPACT CUSTOMER DEMAND FOR OUR PRODUCTS AND SERVICES.
Our business depends on the uninterrupted operation of our secure data
center. We must protect this center from loss, damage or interruption caused by
fire, power loss, telecommunications failure or other events beyond our control.
Any damage or failure that causes interruptions in our secure data center
operations could materially harm our business, financial condition and results
of operations.
In addition, our ability to issue digitally-signed certified
time-stamps and public encryption codes in connection with our products and
services depends on the efficient operation of the Internet connections between
customers and our data center. We depend on Internet service providers
efficiently operating these connections. These providers have experienced
periodic operational problems or outages in the past. Any of these problems or
outages could adversely affect customer satisfaction.
Furthermore, it is critical that our facilities and infrastructure
remain secure and the market perceives them to be secure. Despite our
implementation of network security measures, our infrastructure may be
vulnerable to physical break-ins, computer viruses, attacks by hackers and
similar disruptions from unauthorized tampering with our computer systems. In
addition, we are vulnerable to coordinated attempts to overload our systems with
data, resulting in denial or reduction of service to some or all of our users
for a period of time. We may not carry sufficient business interruption
insurance to compensate us for losses that may occur as a result of any of these
events; therefore, it is possible that we may have to use additional resources
to address these problems.
Messages sent through our ZixMail.net(TM) message portal will reside,
for a user-specified period of time, in our data center facilities. Also, since
we receive payments online for our ZixMail service, certain confidential
customer information is retained in our data center facilities. Any physical or
electronic break-ins or other security breaches or compromises of this
information could expose us to significant liability, and customers could be
reluctant to use our Internet-related products and services.
4
As was previously announced, we determined in June 2001 that credit
card databases at our independently operated subsidiary, Anacom Communications,
Inc. (we refer to it as "Anacom"), had been improperly accessed. The ZixMail and
ZixMail.net systems and our secure data center operations were entirely separate
from those of Anacom. No ZixIt technologies or operations were involved in the
incident. We are currently unable to assess the amount of the liability, if any,
to Anacom or us, which may result from the unauthorized access to Anacom's
databases.
WE MAY HAVE TO DEFEND OUR RIGHTS IN INTELLECTUAL PROPERTY THAT WE USE
IN OUR PRODUCTS AND SERVICES, WHICH COULD BE DISRUPTIVE AND EXPENSIVE TO OUR
BUSINESS.
We may have to defend our intellectual property rights or defend
against claims that we are infringing the rights of others. Intellectual
property litigation and controversies are disruptive and expensive. Infringement
claims could require us to develop non-infringing products or enter into royalty
or licensing arrangements. Royalty or licensing arrangements, if required, may
not be obtainable on terms acceptable to us. Our business could be significantly
harmed if we are not able to develop or license the necessary technology.
Furthermore, it is possible that others may independently develop substantially
equivalent intellectual property, thus enabling them to effectively compete
against us.
OUR PRODUCTS AND SERVICES COULD CONTAIN UNKNOWN DEFECTS OR ERRORS.
Any of our products and services could contain undetected defects or
errors. Despite our testing, defects or errors may occur, which could result in
loss of or delay in revenues, failure to achieve market acceptance, diversion of
development resources, injury to our reputation, litigation claims, increased
insurance costs or increased service and warranty costs. Any of these could
prevent us from implementing our business model and achieving the revenues we
need to operate profitably.
PUBLIC KEY CRYPTOGRAPHY TECHNOLOGY IS SUBJECT TO RISKS.
Our products and services employ, and future products and services may
employ, public key cryptography technology. With public key cryptography
technology, a user has a public key and a private key, which are used to encrypt
and decrypt messages. The security afforded by this technology depends, in large
measure, on the integrity of a user's private key, which is dependent, in part,
on the application of certain mathematical principles. The integrity of a user's
private key is predicated on the assumption that it is difficult to
mathematically derive a user's private key from the user's related public key.
Should methods be developed that make it easier to derive a user's private key,
the security of encryption products using public key cryptography technology
would be reduced or eliminated and such products could become unmarketable. This
could require us to make significant changes to our products, which could damage
our reputation and otherwise hurt our business. Moreover, there have been public
reports of the successful decryption of certain encrypted messages. This, or
related, publicity could adversely affect public perception of the security
afforded by public key cryptography technology, which could harm our business.
5
WE DEPEND ON KEY PERSONNEL.
We depend on the performance of our senior management team and other
key employees, particularly highly skilled technical and sales and marketing
personnel. Our success also depends on our ability to attract, retain and
motivate these individuals. There is competition for these personnel, and we
face a tight employment market for the particular individuals we need to
attract. There are no agreements with any of our personnel that prevent them
from leaving ZixIt at any time. In addition, we do not maintain key person life
insurance for any of our personnel. The loss of the services of any of our key
employees or our failure to attract, retain and motivate key employees could
harm our business.
WE COULD BE AFFECTED BY GOVERNMENT REGULATION.
Exports of software products using encryption technology are generally
restricted by the United States government (we refer to it as the "U.S.").
Although we have obtained U.S. government approval to export our ZixMail product
to almost all countries in the world, the list of countries to which ZixMail
cannot be exported could be revised in the future. Furthermore, some foreign
countries impose restrictions on the use of encryption products, such as the
ZixMail product. Failure to obtain the required governmental approvals would
preclude the sale or use of our products in international markets.
OUR STOCK PRICE MAY BE VOLATILE.
The market price of our common stock has fluctuated significantly in
the past and is likely to fluctuate in the future. Also, the market prices of
securities of other Internet-related companies have been highly volatile and, as
is well known, have generally declined substantially and broadly.
TERRORIST ATTACKS HAVE CONTRIBUTED TO ECONOMIC INSTABILITY IN THE U.S.;
CONTINUED TERRORIST ATTACKS, WAR OR OTHER CIVIL DISTURBANCES COULD LEAD TO
FURTHER ECONOMIC INSTABILITY AND DEPRESS OUR STOCK PRICE.
On September 11, 2001, the U.S. was the target of terrorist attacks of
unprecedented scope. These attacks caused instability in the global financial
markets and contributed to volatility in the stock prices of U.S. publicly
traded companies. These attacks may lead to armed hostilities or to further acts
of terrorism and civil disturbances in the U.S. or elsewhere, which may further
contribute to economic instability in the U.S. and could harm our business.
WE MAY HAVE LIABILITY FOR INDEMNIFICATION CLAIMS ARISING FROM THE SALE
OF OUR PREVIOUS BUSINESSES IN 1998 AND 1997.
We disposed of our remaining operating businesses in 1998 and 1997. In
selling those businesses, we agreed to provide customary indemnification to the
purchasers of those businesses for breaches of representations and warranties,
covenants and other specified matters. Although we believe that we have
adequately provided for future costs associated with these indemnification
obligations, indemnifiable claims could exceed our estimates.
6
WE MAY ENCOUNTER OTHER UNANTICIPATED RISKS AND UNCERTAINTIES IN THE
INTERNET MARKET OR IN DEVELOPING NEW PRODUCTS AND SERVICES, AND WE CANNOT ASSURE
YOU THAT WE WILL BE SUCCESSFUL IN RESPONDING TO ANY UNANTICIPATED RISKS OR
UNCERTAINTIES.
There are no assurances that we will be successful or that we will not
encounter other, and even unanticipated, risks. We discuss other operating,
financial or legal risks or uncertainties in our periodic filings with the
Securities and Exchange Commission (we refer to it as the "SEC"). We are, of
course, also subject to general economic risks.
DOCUMENTS INCORPORATED BY REFERENCE
We furnish our shareholders with annual reports containing audited
financial statements and other appropriate reports. We also file annual,
quarterly and special reports, proxy statements and other information with the
SEC. Instead of repeating information that we have already filed with the SEC,
we are allowed to "incorporate by reference" in this prospectus information
contained in those documents we have filed with the SEC. These documents are
considered to be part of this prospectus.
We incorporate by reference in this prospectus the documents listed
below and any future filings we make with the SEC under Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act until the selling shareholders sell all of the
shares of common stock offered by this prospectus:
o our Annual Report on Form 10-K, including audited financial
statements, for our fiscal year ended December 31, 2001;
o all other reports we have filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of our fiscal year
covered by the Annual Report referred to above; and
o the description of our common stock contained in our
Registration Statement on Form 8-A, dated September 25, 1989,
including any amendment or report filed for the purpose of
updating such description.
Any documents that we file with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, prior to the termination of the
offering, will also be considered to be part of this prospectus and will
automatically update and supersede the information contained in this prospectus.
At your request, we will provide you, without charge, a copy of any of
the documents we have incorporated by reference into this prospectus but not
delivered with the prospectus (other than exhibits to such documents, unless
those exhibits are specifically incorporated by reference into the documents
that this prospectus incorporates). If you want more information, write or call:
7
Steve M. York
Senior Vice President and Chief Financial Officer
ZixIt Corporation
2711 North Haskell Avenue
Suite 2300, LB 36
Dallas, Texas 75204-2960
Telephone: (214) 370-2000
WHERE YOU CAN GET MORE INFORMATION
We are delivering this prospectus to you in accordance with the U.S.
securities laws. We have filed a registration statement with the SEC to register
the common stock that the selling shareholder is offering to you. This
prospectus is part of that registration statement. As allowed by the SEC's
rules, this prospectus does not contain all of the information that is included
in the registration statement.
You may obtain a copy of the registration statement, or a copy of any
other filing we have made with the SEC, directly from the SEC. You may either:
o read and copy any materials we have filed with the SEC at the
SEC's Public Reference Room maintained at 450 Fifth Street,
N.W., Washington, D.C. 20549, as well as the following
regional offices: 233 Broadway, New York, New York 10279; and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; or
o visit the SEC's Internet site at http://www.sec.gov, which
contains reports, proxy statements, and other information
regarding issuers that file electronically.
You can obtain more information about the SEC's Public Reference Room
by calling the SEC at 1-800-SEC-0330.
SELLING SHAREHOLDERS
The shares of common stock being offered are issuable to the selling
shareholders upon the exercise of certain common stock warrants. The warrants
were issued to the selling shareholders on March 1, 2002 in connection with
David P. Cook's transfer of his own employee stock options to acquire 916,667
shares of our common stock back to us, and our issuance of warrants for the same
number of shares to the selling shareholders on substantially the same terms and
conditions as those governing Mr. Cook's original stock options.
The table below sets forth information with respect to the beneficial
ownership of our common stock by the selling shareholders immediately prior to
this offering and as adjusted to reflect the sale of shares of common stock
pursuant to this offering. The table assumes that the selling shareholders sell
all of the shares offered by them in this offering. We are unable, however, to
determine the exact number of shares that will actually be sold or when or if
these sales will occur. All information with respect to the beneficial ownership
was furnished to us by the selling
8
shareholders in February 2002. Of the 916,667 shares offered by this prospectus,
all 916,667 shares have been reserved for issuance by us to the selling
shareholders upon the exercise of outstanding and immediately exercisable
warrants.
Except for H. Wayne Huizenga, who has been elected Co-Vice Chairman of
our Board of Directors and is an affiliate of certain of the shareholders, none
of the selling shareholders has had any position, office or other material
relationship with us within the past three years to our knowledge.
The percentage of shares beneficially owned after this offering by each
of the selling shareholders is based on the 17,557,854 shares of our common
stock outstanding on February 28, 2002.
NUMBER OF SHARES BENEFICIALLY
NUMBER OF SHARES SHARES BEING OWNED AFTER THIS
BENEFICIALLY OWNED REGISTERED FOR OFFERING(1)(3)
PRIOR TO THIS RESALE IN THIS -----------------------
NAME OF BENEFICIAL OWNER OFFERING(1)(2) OFFERING(2) NUMBER PERCENTAGE
------------------------ ------------------ -------------- ------- ----------
1. Andrew J. Sukawaty Revocable Trust dated January 9,026 2,083 6,943 *
14, 2000
2. Rosalie V. Arthur 4,515 1,042 3,473 *
3. Rosanne Badowski 6,943 2,083 4,860 *
4. John E. Berndt 9,026 2,083 6,943 *
5. Berrard Holdings Limited Partnership 90,276 20,833 69,443 *
6. Cris V. Branden 13,890 4,167 9,723 *
7. Kevin E. Brauer 9,026 2,083 6,943 *
8. Cascade Investment, L.L.C. 69,443 20,833 48,610 *
9. William J. Conaty 9,026 2,083 6,943 *
10. Dennis D. Dammerman 9,026 2,083 6,943 *
11. DBV Investments, L.P. 69,443 20,833 48,610 *
12. John C. Esrey 9,026 2,083 6,943 *
13. William T. Esrey, Jr. 9,026 2,083 6,943 *
14. David E. Fanta 6,856 1,667 5,189 *
15. David C. Feldman 7,223 1,667 5,556 *
16. Robert J. Henninger, Jr. 52,693(4) 14,583 38,110(4) *
17. Albert Fried, Jr. 20,833 6,250 14,583 *
18. Michael B. Fuller and Mary G. Fuller, Joint Tenants 9,026 2,083 6,943 *
19. G. Harry Huizenga Enterprises, L.L.C. 9,030 2,084 6,946 *
20. Troy L. Gabriel 6,772 1,563 5,209 *
21. H. Family Limited Partnership 451,387 104,167 347,220 1.98
22. H. Wayne Huizenga, Jr. 225,693 52,083 173,610 *
23. H. Wayne Huizenga Sr. Perpetual Trust Master Trust 65,827 15,191 50,636 *
I Share A (dated December 23, 1999)
24. H. Wayne Huizenga Sr. Perpetual Trust Master Trust 65,827 15,191 50,636 *
I Share B (dated December 23, 1999)
9
NUMBER OF SHARES BENEFICIALLY
NUMBER OF SHARES SHARES BEING OWNED AFTER THIS
BENEFICIALLY OWNED REGISTERED FOR OFFERING(1)(3)
PRIOR TO THIS RESALE IN THIS -----------------------
NAME OF BENEFICIAL OWNER OFFERING(1)(2) OFFERING(2) NUMBER PERCENTAGE
------------------------ ------------------ -------------- ------- ----------
25. H. Wayne Huizenga Sr. Perpetual Trust Master Trust 65,827 15,191 50,636 *
I Share C (dated December 23, 1999)
26. H. Wayne Huizenga SR Perpetual Trust Master Trust I 65,827 15,191 50,636 *
Share D (dated December 23, 1999)
27. Kris E. Hansel 1,807 417 1,390 *
28. Harris W. Hudson Limited Partnership 180,556 41,667 138,889 *
29. Holly J. Hudson Limited Partnership 85,011 19,618 65,393 *
30. Steven W. Hudson Limited Partnership 85,011 19,618 65,393 *
31. Huizenga Family Foundation, Inc. 45,136 10,416 34,720 *
32. Huizenga Investments Limited Partnership 90,285 20,835 69,450 *
33. Joseph H. Izhakoff 1,390 417 973 *
34. Jean Huizenga Enterprises, L.L.C. 9,026 2,083 6,943 *
35. George D. Johnson, Jr. 155,356 41,667 113,689 *
36. J.W. Croghan Trustee, JWC Trust dated December 28, 69,443 20,833 48,610 *
1982
37. Kevin F. Flynn June 21, 1992 Non-Exempt Trust 477,455 109,375 368,080 2.10
38. Kirk Holdings Limited Partnership 12,845 3,854 8,991 *
39. Meljay C. Krause 9,026 2,083 6,943 *
40. Arthur A. Kurtze 9,026 2,083 6,943 *
41. October Capital, LLC 69,450 20,835 48,615 *
42. Lion Ventures LLC 8,680 2,604 6,076 *
43. LM Private Investments, L.P. 5,556 1,667 3,889 *
44. Martha J. Huizenga Holdings Limited Partnership 45,140 10,417 34,723 *
45. Michael S. Egan Grantor Retained Annuity Trust 9,026 2,083 6,943 *
F/B/O Riley Martin Michael Egan (dated April 30,
1996)
46. Michael S. Egan Grantor Retained Annuity Trust 9,026 2,083 6,943 *
F/B/O Teague Michael Thomas Egan (dated April 30,
1996)
47. Michael S. Egan Living Trust 93,886 21,666 72,220 *
48. Gene Ostrow 6,943 2,083 4,860 *
49. Philip V. Petrocelli 6,943 2,083 4,860 *
50. PKI Investment Company, L.L.C. 121,525 36,458 85,067 *
51. Gary Reiner 9,026 2,083 6,943 *
52. Richard Rosenblatt 24,306 7,292 17,014 *
53. John M. Samuels 9,026 2,083 6,943 *
54. Theodore H. Schell 9,026 2,083 6,943 *
55. John A. Schneider 90,279 20,834 69,445 *
56. Robin M. Segaul 901 208 693 *
57. Keith S. Sherin 6,943 2,083 4,860 *
58. Donald R. Sinclair 7,223 1,667 5,556 *
59. Thistle Hill Partners, Ltd. 7,223 1,667 5,556 *
10
NUMBER OF SHARES BENEFICIALLY
NUMBER OF SHARES SHARES BEING OWNED AFTER THIS
BENEFICIALLY OWNED REGISTERED FOR OFFERING(1)(3)
PRIOR TO THIS RESALE IN THIS -----------------------
NAME OF BENEFICIAL OWNER OFFERING(1)(2) OFFERING(2) NUMBER PERCENTAGE
------------------------ ------------------ -------------- ------- ----------
60. William T. Esrey, Trustee U/T/A dated December 12, 90,285 20,835 69,450 *
1985, F/B/O William T. Esrey
61. I. Benjamin Watson, III 9,026 2,083 6,943 *
62. Weezor I Limited Partnership 173,608 52,083 121,525 *
63. John F. Welch 69,450 20,835 48,615 *
64. Wincrest Ventures, L.P. 72,223 16,667 55,556 *
65. Peter W. Wright 90,276 20,833 69,443 *
66. LKL Partners, a Florida general partnership 57,679 15,103 42,576 *
Total 3,704,561 916,667 2,787,894 15.88
----------
* Less than 1%.
(1) Beneficial ownership is determined in accordance with the rules of the SEC
and includes an aggregate of (a) 645,504 of the shares acquired by the
selling shareholders pursuant to a Common Stock and Warrant Purchase
Agreement, dated April 11, 2000, by and among us and H. Wayne Huizenga and
his affiliates and assigns (we refer to it as the "Purchase Agreement"),
(b) 2,138,890 shares that may be immediately acquired by the selling
shareholders upon the exercise of certain warrants issued to them pursuant
to the Purchase Agreement and (c) 3,500 shares acquired by one of the
selling shareholders on the open market. All of such shares (other than
those purchased on the open market) were registered by us on May 8, 2000 on
Form S-3 (Registration No. 333-36556) for resale by the selling
shareholders.
(2) Includes an aggregate of 916,667 shares that may be acquired by the selling
shareholders upon the exercise of the warrants that are the subject of this
prospectus.
(3) Assumes that the selling shareholders sell all of the 916,667 shares
offered by them in this offering and none of the other shares beneficially
owned by them.
(4) Includes beneficial ownership of 38,110 shares transferred from Finally
Limited Partnership.
PLAN OF DISTRIBUTION
The sale of shares offered in this prospectus by the selling
shareholders or pledgees may be effected from time-to-time directly, or by one
or more broker-dealers or agents, in one or more transactions on The Nasdaq
Stock Market or other exchanges on which our common stock may be listed for
trading, in negotiated transactions, or through a combination of such methods of
distribution, at prices related to prevailing market prices, at negotiated
prices or at fixed prices, which may be changed. The selling shareholders will
act independently of us in making decisions with respect to the timing, manner
and size of each sale.
This prospectus also may be used, with our consent, by donees of the
shares of common stock under circumstances requiring or making desirable its
use. To the extent required, we will file, during any period in which offers or
sales are being made, one or more supplements to this prospectus to set forth
the names of donees of selling shareholders and any other material information
with respect to the plan of distribution not previously disclosed.
11
In the event one or more broker-dealers or agents agree to sell the
shares, they may do so by purchasing the shares as principals or by selling the
shares as agents for the selling shareholder. Any broker-dealer that does this
may receive compensation in the form of discounts, concessions or commissions
from the selling shareholder or the purchasers of the shares for which the
broker-dealer may act as agent or to whom they sell as principal, or both, which
compensation as to a particular broker-dealer may be in excess of customary
compensation. To our knowledge, the selling shareholders have not entered into
any agreement, arrangement or understanding with any particular broker-dealer or
market maker with respect to the shares offered hereby, nor do we know the
identity of any brokers or market makers that will participate in the offering.
In managing their investment in us, the selling shareholders could employ
various methods involving hedging, short sales or loans or pledges of the shares
covered by this prospectus.
Under applicable rules and regulations under the Exchange Act, any
person engaged in a distribution of the shares may not simultaneously engage in
market-making activities with respect to our common stock for the applicable
period under Regulation M of the Exchange Act prior to the commencement of the
distribution. In addition, the selling shareholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Regulation M. These provisions may
limit the timing of purchases and sales of the shares by the selling
shareholders. All of the foregoing may affect the marketability of the shares.
In order to comply with some states' securities laws, if applicable,
our common stock will be sold in jurisdictions only through registered or
licensed brokers or dealers. In some states, our common stock may not be sold
unless it has been registered or qualified for sale in such state or an
exemption from registration or qualification is available and is complied with.
We will pay substantially all of the expenses incident to this offering of the
shares by the selling shareholders to the public other than commissions,
concessions and discounts of brokers, dealers or other agents.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the common
stock by the selling shareholders, rather, the selling shareholders will receive
those proceeds directly. We will, however, receive proceeds from any cash
exercises of the warrants by the selling shareholders under the warrant
agreements. All proceeds received as a result of the exercise of those warrants
will be used as working capital for our operations.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by the Texas Business Corporation Act, our Restated
Articles of Incorporation provide that our directors shall not be personally
liable to us or our shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability for:
o any breach of the director's duty of loyalty to us or to our
shareholders;
o any act or omission not in good faith or which involves
intentional misconduct or a knowing violation of law;
o any transaction from which the director derived any improper
personal benefit;
12
o any act or omission where the liability of the director is
expressly provided by statute; or
o any act related to an unlawful stock repurchase or payment of
a dividend.
In addition, our Restated Articles of Incorporation and Restated Bylaws
include provisions permitted by the Texas Business Corporation Act whereby our
directors, officers, employees, and agents generally are to be indemnified
against certain liabilities to the fullest extent authorized by the Texas
Business Corporation Act. In addition, 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.
LEGAL MATTERS
The validity of the stock offered hereby will be passed upon for us by
Ronald A. Woessner, our Senior Vice President, General Counsel and Secretary.
EXPERTS
The consolidated financial statements appearing in the Annual Report on
Form 10-K for our fiscal year ended December 31, 2001, referred to under
"Documents Incorporated by Reference" on page 7, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon, included
therein, and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
13
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC registration fee $ 334.80
Nasdaq filing fee 2,000.00*
Accounting fees and expenses 1,000.00*
Legal fees and expenses 5,000.00*
Miscellaneous expenses 2,000.00*
----------
Total $10,334.80
==========
----------
* Estimated.
All of the above expenses will be paid by the registrant.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Texas Business Corporation Act, the registrant's
Restated Articles of Incorporation provide that its directors 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 for by statute, or (v) any act
related to an unlawful stock repurchase or payment of a dividend. In addition,
the registrant's Restated Articles of Incorporation and Restated Bylaws include
certain provisions permitted by the Texas Business Corporation Act whereby its
directors, officers, employees and agents generally are to be indemnified
against certain liabilities to the fullest extent authorized by the Texas
Business Corporation Act. 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 16. EXHIBITS.
The exhibits to this registration statement are listed in the Index to
Exhibits on page II-5 of this registration statement, which Index is
incorporated herein by reference.
ITEM 17. 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 of 1933;
II-1
(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. 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) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, 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 that
are incorporated by reference 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 that 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 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
II-2
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.
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-3 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 March 7, 2002.
ZIXIT CORPORATION
By: /s/ Steve M. York
----------------------------------------
Steve M. York
Senior Vice President, Chief Financial
Officer and Treasurer
II-3
POWER OF ATTORNEY
Each of the undersigned hereby appoints John A. Ryan and Steve M. York,
and each of them acting individually, as his true and lawful attorneys-in-fact
and agents, with full power of substitution, for and in the name, place and
stead of the undersigned, in any and all capacities, to sign and file with the
Securities and Exchange Commission under the Securities Act of 1933, any and all
amendments and exhibits to this registration statement, any and all supplemental
registration statements (including post-effective amendments), and any and all
applications, instruments and other documents to be filed with the Securities
and Exchange Commission pertaining to the registration of the securities covered
hereby or the transactions contemplated herein.
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.
Signature Title Date
--------- ----- ----
/s/ John A. Ryan Chairman, President, Chief March 7, 2002
--------------------------- Executive Officer and Director
John A. Ryan (Principal Executive Officer)
/s/ Steve M. York Senior Vice President, March 7, 2002
--------------------------- Chief Financial Officer
Steve M. York and Treasurer (Principal
Financial and Accounting Officer)
/s/ David P. Cook Founder and Director March 7, 2002
---------------------------
David P. Cook
/s/ H. Wayne Huizenga Co-Vice Chairman and Director March 7, 2002
---------------------------
H. Wayne Huizenga
/s/ Michael E. Keane Director March 7, 2002
---------------------------
Michael E. Keane
/s/ James S. Marston Director March 7, 2002
---------------------------
James S. Marston
/s/ Jeffrey P. Papows Co-Vice Chairman and Director March 7, 2002
---------------------------
Jeffrey P. Papows
/s/ Antonio R. Sanchez, Jr. Director March 7, 2002
---------------------------
Antonio R. Sanchez, Jr.
/s/ Dr. Ben G. Streetman Director March 7, 2002
---------------------------
Dr. Ben G. Streetman
II-4
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
*4.1 Form of Common Stock Warrant Certificate.
*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.
24.1 Power of Attorney (included in Part II of this registration
statement).
----------
* Filed electronically herewith.
II-5