As filed with the Securities and Exchange Commission on July 18, 2002.
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
ZIXIT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Texas 75-2216818
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Steve M. York
2711 N. Haskell Avenue 2711 N. Haskell Avenue
Suite 2300, LB 36 Suite 2300, LB 36
Dallas, Texas 75204-2960 Dallas, Texas 75204-2960
(214) 370-2000
(Address, including zip code, (Name, address, including zip code,
of principal executive offices) and telephone number, including area
code, of agent for service)
ZIXIT CORPORATION STOCK OPTION AGREEMENTS
(FULL TITLE OF THE PLAN)
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
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Common Stock, $.01 par
value 450,000 Shares $ 4.03 $ 1,813,500 $ 166.84
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(1) Securities being registered consist of 125,000, 100,000 and 125,000
shares, respectively, issuable upon exercise of options granted to
Dennis Heathcote, Wael Mohamed and David Robertson, ZixIt employees, in
connection with their initial employment with ZixIt. Securities being
registered also consist of 100,000 shares issuable upon exercise of
options granted to Dan Nutkis, a consultant to ZixIt. Applicable
provisions of the ZixIt Corporation 1995 Long-Term Incentive Plan are
incorporated into Messrs. Heathcote, Mohamed, Nutkis and Robertson's
stock option agreements. Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the "Securities Act"), this registration
statement also covers an indeterminate amount of shares as may be
required to cover possible adjustments under the plan and agreements
covered hereby by reason of any stock dividend, stock split, share
combination, exchange of shares, recapitalization, merger,
consolidation, separation, reorganization, liquidation or the like, of
or by the registrant. In addition, pursuant to Rule 416(c) under the
Securities Act, this registration statement also covers an
indeterminate amount of interests to be offered or sold, if any, under
the plan and agreements covered hereby.
(2) Estimated solely for the purpose of calculating the registration fee.
The registration fee has been calculated in accordance with Rules
457(c) and 457(h) under the Securities Act on the basis of the average
of the high and low prices of the Common Stock as quoted on The Nasdaq
Stock Market on July 16, 2002.
PART I
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this registration statement in accordance with Rule 428 under
the Securities Act and the "Note" to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K/A, including audited
financial statements, for the fiscal year ended December 31, 2001;
(b) The registrant's Quarterly Report on Form 10-Q/A for the quarterly
period ended March 31, 2002;
(c) All other reports filed by the registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since the
end of the fiscal year covered by the Annual Report referred to in (a) above;
and
(d) A description of the registrant's Common Stock contained in the
registrant's Registration Statement on Form 8-A, filed with the Securities and
Exchange Commission on September 25, 1989, including any amendment or report
filed for the purpose of updating such description.
All reports or other documents subsequently filed by the registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to automatically update and supersede the information contained in
this registration statement.
Any statement contained herein or in a document incorporated or deemed
to be incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other
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subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such earlier statement. Any 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.
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 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. In addition, the employment agreement between John A. Ryan and the
registrant, dated November 14, 2001, provides Mr. Ryan, the registrant's
Chairman, President and Chief Executive Officer, with a contractual right to
indemnification as an officer and/or director of the registrant as set forth in
Article VII of the registrant's Restated Bylaws, dated September 14, 1999.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this registration statement are listed in the Index to
Exhibits on page 8 of this registration statement, which Index is incorporated
herein by reference.
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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:
(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 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 Exchange Act that are
incorporated by reference in the 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 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 that time shall be deemed to be the initial bona
fide offering thereof.
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(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
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 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.
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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 Dallas, State of Texas on July 18, 2002.
ZIXIT CORPORATION
By: /s/ Steve M. York
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Steve M. York
Senior Vice President, Chief Financial
Officer and Treasurer
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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
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/s/ John A. Ryan Chairman, President, Chief Executive July 18, 2002
------------------------------------------- Officer and Director (Principal Executive
(John A. Ryan) Officer)
/s/ Steve M. York Senior Vice President, Chief Financial July 18, 2002
------------------------------------------- Officer and Treasurer (Principal Financial
(Steve M. York) and Accounting Officer)
/s/ David P. Cook Founder and Director July 18, 2002
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(David P. Cook)
/s/ H. Wayne Huizenga Co-Vice Chairman and Director July 18, 2002
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(H. Wayne Huizenga)
/s/ Michael E. Keane Director July 18, 2002
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(Michael E. Keane)
/s/ James S. Marston Director July 18, 2002
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(James S. Marston)
/s/ Jeffrey P. Papows Co-Vice Chairman and Director July 18, 2002
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(Jeffrey P. Papows)
/s/ Antonio R. Sanchez, Jr. Director July 18, 2002
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(Antonio R. Sanchez, Jr.)
/s/ Dr. Ben G. Streetman Director July 18, 2002
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(Dr. Ben G. Streetman)
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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4.1* Form of Stock Option Agreement between the registrant and Messrs. Heathcote, Mohamed, Nutkis
and Robertson.
4.2 1995 Long-Term Incentive Plan of the registrant (Amended and Restated as of September 20,
2000). Filed under Exhibit 10.3 to the registrant's Quarterly Report on Form 10-Q for the
quarterly period ended September 30, 2000, and incorporated herein by reference.
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).
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*Filed electronically herewith.
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