<PAGE> 1
As filed with the Securities and Exchange Commission on September 8, 2000.
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 Identification No.)
incorporation or organization)
2711 N. HASKELL AVENUE
SUITE 2850, LB 36
DALLAS, TEXAS 75204-2911
(214) 515-7300
(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 2850, LB 36
DALLAS, TEXAS 75204-2911
(214) 515-7300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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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
<TABLE>
<CAPTION>
======================================================================================================================
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
----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 70,281 $47.56 $3,342,564 $882.45
======================================================================================================================
</TABLE>
(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 National Market
on September 5, 2000.
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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.
<PAGE> 2
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
September 8, 2000
ZIXIT CORPORATION
70,281 SHARES
COMMON STOCK
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This prospectus relates to an offering of up to 70,281 shares of our common
stock, par value $.01 per share, acquired pursuant to a Purchase and Sale
Agreement, dated October 1, 1999, by and between Anacom Communications, Inc., a
Delaware corporation, Anacom Communications, Inc., a Texas corporation, Warren
E. Rosenfeld, George A. DeCourcy and us.
The common stock being registered is being offered for the account of those
security holders described under "Selling Shareholders" on page 9. 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 National 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 9.
Our common stock is quoted on the NASDAQ National Market under the symbol
"ZIXI". On September 5, 2000, the last sale price of our common stock, as
reported on NASDAQ, was $46.50 per share.
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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 2.
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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.
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The date of this prospectus is September 8, 2000.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
ZixIt Corporation.............................................................1
Risk Factors..................................................................2
Documents Incorporated by Reference...........................................7
Where You Can Get More Information............................................8
Selling Shareholders..........................................................9
Plan of Distribution..........................................................9
Use of Proceeds..............................................................10
Legal Matters................................................................10
Experts......................................................................10
</TABLE>
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.
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ZIXIT CORPORATION
Historically, we operated in one industry segment, the provision of 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 a digital signature and
encryption technology and are developing a series of products and services that
enhance privacy, security and convenience over the Internet. To date, we have
not earned any revenues from these products and services. ZixMail(TM), which was
first commercially released in March 2000, is a user friendly, secure document
delivery, private email and messaging tracking service that enables Internet
users worldwide to easily send and receive encrypted and digitally signed
communications without changing their existing email systems or addresses. We
released an enhanced version of ZixMail in July 2000, which includes spell
checking, hyperlink support and rich-text formatting features and the ability to
send secure messages to recipients that are not ZixMail users.
Also in July 2000, we opened our new Internet secure-messaging portal -
SecureDelivery.com(TM). The architecture of the SecureDelivery.com portal allows
for interoperability between encryption formats and allows for the delivery of
messages to recipients through secure (SSL) browsers, secure email and other
modes of communication. Immediately available services include sending secure
and authenticated messages from the SecureDelivery.com Web message form and
delivering those messages to authenticated recipients over secure browser
connections. Also, current ZixMail users can route messages to any email address
through SecureDelivery.com, even though the recipient is not a ZixMail user. In
the future, SecureDelivery.com is expected to enable users to also manage
incoming secure messages from other sources, including Lotus(R) Notes(R),
Microsoft(R) Outlook(R) and branded Web-based email compose forms, and in other
encryption formats, such as S/MIME (X.509) and PGP(R). When completed,
SecureDelivery.com will forward these incoming messages directly to the
recipient, based on recipient selected encryption options.
ZixCharge(TM), which has not been commercially released, is a shopping
portal and payment authorization system designed to enable consumers to purchase
goods and services over the Internet without being required to provide personal
and charge card information to Internet merchants. As noted in our periodic
filings with the Securities and Exchange Commission (we refer to it as the
"SEC"), we have initiated litigation against Visa, which alleges that Visa set
out to destroy our ability to market ZixCharge. We now believe it is unlikely
that any Visa member banks will enter into any ZixCharge related collaborative
relationship until the Visa litigation is resolved. Moreover, the resolution of
this litigation could have a material effect on our ability to market the
ZixCharge system.
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Additionally, in October 1999, we purchased all the outstanding shares of
Anacom Communications, Inc., a provider of real-time transaction processing
services to Internet merchants.
Successful development of a development stage enterprise, particularly
Internet-related businesses, is costly and highly competitive. Our growth
depends on the timely development and market acceptance of our new products and
services. A development stage enterprise involves risks and uncertainties, and
there are no assurances that we will be successful in our efforts. See "Risk
Factors" below.
We were incorporated in Texas in 1988. Our executive offices are located at
2711 North Haskell Avenue, Suite 2850, LB 36, Dallas, Texas 75204-2911, and our
telephone number is (214) 515-7300. 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" 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 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 A LIMITED OPERATING HISTORY.
We have only a limited operating history in the Internet arena on which to
base an evaluation of our business and prospects. Our prospects must be
considered in light of the risks and uncertainties encountered by other Internet
companies in the early stages of development.
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These risks and uncertainties are often more pronounced for companies in new and
rapidly evolving markets, particularly Internet-related businesses.
THE MARKET MAY NOT BROADLY ACCEPT OUR NEW PRODUCTS AND SERVICES, WHICH
COULD ADVERSELY AFFECT OUR GROWTH PROSPECTS.
Our products and services are targeted at the new and rapidly evolving
markets for secure Internet communications and e-commerce. Although the
competitive environment in this market has yet to fully develop, we anticipate
that it will be intensely competitive, subject to rapid change and significantly
affected by new products and service introductions and other market activities
of industry participants. Our success will depend on many factors, including,
but not limited to, the following:
o We must be able to successfully and timely develop our products and
services. The commercial version of ZixMail was first released in
March 2000 and an enhanced version was released in July 2000. Our new
Internet secure-messaging portal - SecureDelivery.com - was first
opened at the end of July 2000. We are not currently charging for use
of our ZixMail or SecureDelivery.com products or services. ZixCharge
has not been commercially released.
o We must be able to achieve broad market acceptance for our products
and services. There are currently no known Internet secure-messaging
services, such as ZixMail and SecureDelivery.com, that currently
operate at the scale that we would require, at our current expenditure
levels and proposed pricing, to become profitable from our
secure-messaging operations. To reach a larger customer base for our
secure-messaging products and services than we can reach through our
direct sales and marketing efforts, we are pursuing collaborative
relationships with third parties with large existing user bases to
assist us in promoting our secure-messaging services. There is no
assurance that we will be successful in entering into these
relationships, or that if entered into, they will significantly assist
us in obtaining large numbers of ZixMail or SecureDelivery.com users.
Moreover, in any event, there is no assurance that enough paying users
or enough advertising revenue will be ultimately obtained to enable us
to operate profitably.
o Since the commercial version of ZixCharge has not yet been released,
there are currently no consumers or merchants using ZixCharge. The
success of ZixCharge will depend on (1) our ability to obtain, as
users, large numbers of consumers who desire to shop privately over
the Internet and our ability to obtain large numbers of merchants that
will permit them to do so using ZixCharge, and (2) whether sufficient
profit can be generated from potential sources of revenue. To obtain
access to large numbers of consumers and merchants, we are seeking
collaborative relationships with companies that have large existing
user bases to assist us in promoting ZixCharge. In this regard,
initial efforts were focused on banking institutions. As noted in our
periodic SEC filings, we have initiated litigation against Visa, which
alleges that Visa set out to destroy our ability to market
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ZixCharge. We now believe it is unlikely that any Visa member banks
will enter into any ZixCharge related collaborative relationship until
the Visa litigation is resolved. Moreover, the resolution of this
litigation could have a material effect on our ability to market the
ZixCharge system.
There is no assurance that we will be successful in entering into
these relationships, or that if entered into, they will significantly
assist us in obtaining large numbers of ZixCharge users. Moreover, in
any event, there is no assurance that we will be successful in
obtaining a critical mass of consumers as ZixCharge users or obtaining
a critical mass of merchants that will allow consumers to use
ZixCharge or that sufficient profit can be generated from the
ZixCharge operations. If we are unable to obtain the necessary
critical mass or generate sufficient profit, we may decide not to
commercially introduce ZixCharge or to discontinue it, if introduced.
WE HAVE NO SIGNIFICANT REVENUES.
We currently have no significant revenues.
WE FACE STRONG COMPETITION FROM NUMEROUS AND SOMETIMES LARGER COMPANIES
THAT MAY BE ABLE TO DEVELOP AND INTRODUCE NEW PRODUCTS AND SERVICES THAT COULD
RENDER OUR PRODUCTS AND SERVICES OBSOLETE OR NONCOMPETITIVE.
We are a new entrant into the rapidly evolving secure Internet
communications and e-commerce markets. We will be competing with larger
companies that have access to greater capital, research and development,
marketing, distribution and other resources than we do. In addition, the
Internet arena is characterized by extensive research efforts and rapid product
development and technological change that could render our products and services
obsolete or noncompetitive. Our failure to develop and introduce new products
and services successfully on a timely basis and to achieve market acceptance for
those products and services could have a significant adverse effect on our
business, financial condition and results of operations. We may decide, at any
time, to delay, discontinue or not initiate the development and release of any
one or more of our planned or contemplated products and services.
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.
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<PAGE> 8
In addition, our ability to issue digitally-signed certified time-stamps
and public encryption codes in connection with our ZixMail service and deliver
messages through our SecureDelivery.com message portal 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 perceive them to be secure. Despite our security measures,
our infrastructure may be vulnerable to physical break-ins, computer viruses,
attacks by hackers or similar disruptive problems. It is possible that we may
have to use additional resources to address these problems. Messages sent
through our SecureDelivery.com message portal will reside, for a user-specified
period of time, in our data center facilities. Also, our planned ZixCharge
business will retain certain confidential customer information 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.
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 intense competition for these personnel,
and we face a tight employment market in general. 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.
OUR PRODUCTS AND SERVICES COULD CONTAIN UNKNOWN DEFECTS OR ERRORS.
Any of ZixMail, the SecureDelivery.com message portal or ZixCharge 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 harm our business.
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
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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
affect public perception of the security afforded by public key cryptography
technology, which could harm our business.
WE COULD BE AFFECTED BY GOVERNMENT REGULATION.
Exports of software products using encryption technology are generally
restricted by the U.S. government. 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
software products using encryption technology, such as the ZixMail product.
Failure to obtain the required governmental approvals would preclude us from
selling the ZixMail product in international markets.
OUR PRODUCTS MAY NOT BECOME GENERALLY ACCEPTED STANDARDS OR BE COMPATIBLE
WITH GENERALLY ACCEPTED STANDARDS, WHICH COULD ADVERSELY AFFECT OUR REVENUE
GROWTH AND PROFITABILITY.
There is no assurance that our products and services will become generally
accepted standards or that they will be compatible with any standards that
become generally accepted.
WE MAY HAVE TO DEFEND OUR RIGHTS IN INTELLECTUAL PROPERTY THAT WE USE IN
OUR PRODUCTS, 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.
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
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we believe that we have adequately provided for future costs associated with
these indemnification obligations, indemnifiable claims could exceed our
estimates.
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.
WE MAY ENCOUNTER OTHER UNANTICIPATED RISKS AND UNCERTAINTIES IN THE
INTERNET MARKET OR IN DEVELOPING NEW PRODUCTS, 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 SEC filings. 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 them. 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, 1999;
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
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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:
Steve M. York
Senior Vice President and Chief Financial Officer
ZixIt Corporation
2711 North Haskell Avenue
Suite 2850, LB 36
Dallas, Texas 75204-2911
Telephone: (214) 515-7300
WHERE YOU CAN GET MORE INFORMATION
We are delivering this prospectus to you in accordance with the United
States securities laws. We have filed a registration statement with the SEC to
register the common stock that a 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: 7
World Trade Center, 13th Floor, New York, New York 10048; and
Northwest Atrium Center, 500 West Madison, Suite 1400, Chicago,
Illinois 60661; 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.
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SELLING SHAREHOLDERS
The shares of common stock being offered were acquired on October 2, 2000
by each of the selling shareholders pursuant to a Purchase and Sale Agreement,
dated October 1, 1999, and related Promissory Notes and Registration Rights
Agreements (filed as an exhibit to a Form 8-K which was filed with the SEC on
October 13, 1999).
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 the 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 beneficial ownership has
been furnished by the selling shareholders.
Each of the selling shareholders' beneficial ownership after the offering
is less than 1% of our common stock, based on the 16,575,113 shares of our
common stock outstanding on September 5, 2000. Beneficial ownership after the
offering assumes all the shares that may be offered are sold.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP PRIOR TO OFFERING BENEFICIAL OWNERSHIP AFTER OFFERING
-------------------------------------- -----------------------------------
NAME OF BENEFICIAL OWNER NUMBER OF SHARES SHARES TO BE SOLD NUMBER OF SHARES
------------------------ ---------------- ----------------- ----------------
<S> <C> <C> <C>
George A. DeCourcy 34,616 34,616 0
Warren E. Rosenfeld 35,665 35,665 0
</TABLE>
PLAN OF DISTRIBUTION
The sale of shares offered in this prospectus 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 National Market, 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. The
registration statement covering these shares will remain effective until the
earliest of (a) 90 days (unless extended by us) following the date the
registration statement is declared effective by the SEC or (b) all of the shares
registered have been sold.
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. We do not know the identity of any brokers or market makers that
will participate in the offering. In managing their
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investment in us, the selling shareholders could employ various methods
involving hedging, short sales or loans 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.
USE OF PROCEEDS
We will not receive any proceeds from the offering.
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, 1999, 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.
10
<PAGE> 14
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC registration fee $ 882.45
NASDAQ filing fee 2,000.00*
Accounting fees and expenses 1,000.00*
Legal fees and expenses 1,000.00*
Miscellaneous expenses 2,000.00*
---------
Total $6,882.45
=========
</TABLE>
----------
* Estimated.
All of the above expenses will be borne pro-rata among Mr. DeCourcy, Mr.
Rosenfeld and the registrant.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by the Texas Business Corporation Act, the registrant's
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 Articles of Incorporation and 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 to include
any material information with respect to the plan of distribution not
previously disclosed in the
II-1
<PAGE> 15
registration statement or any material change to such information 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) and 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 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 16
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 September 8, 2000.
ZIXIT CORPORATION
By: /s/ Steve M. York
--------------------------------------
Steve M. York
Senior Vice President, Chief Financial
Officer and Treasurer
II-3
<PAGE> 17
POWER OF ATTORNEY
Each of the undersigned hereby appoints David P. Cook 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 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David P. Cook Chairman, President, September 8, 2000
-------------------------------- Chief Executive Officer and
David P. Cook Director (Principal Executive
Officer)
/s/ Steve M. York Senior Vice President, Chief September 8, 2000
-------------------------------- Financial Officer and
Steve M. York Treasurer (Principal Financial
and Accounting Officer)
/s/ H. Wayne Huizenga Vice Chairman and Director September 8, 2000
--------------------------------
H. Wayne Huizenga
/s/ Michael E. Keane Director September 8, 2000
--------------------------------
Michael E. Keane
/s/ James S. Marston Director September 8, 2000
--------------------------------
James S. Marston
/s/ Antonio R. Sanchez, Jr. Director September 8, 2000
--------------------------------
Antonio R. Sanchez, Jr.
</TABLE>
II-4
<PAGE> 18
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
3.1 Articles of Incorporation, together with all amendments thereto
(filed as Exhibit 3.1 to ZixIt's Form 10-K for the year ended
December 31, 1998, and incorporated herein by reference).
Articles of Amendment to Articles of Incorporation, dated
September 14, 1999 (filed as Exhibit 3.2 to ZixIt's Form 10-Q for
the quarterly period ended September 30, 1999, and incorporated
herein by reference). Articles of Amendment to Articles of
Incorporation, dated October 12, 1999 (filed as Exhibit 3.3 to
ZixIt's Form 10-Q for the quarterly period ended September 30,
1999, and incorporated herein by reference).
3.2 Restated Bylaws of ZixIt, dated September 14, 1999 (filed as
Exhibit 3.2 to ZixIt's Form 10-Q for the quarterly period ended
March 31, 2000, and incorporated herein by reference).
4.1 Specimen certificate for common stock of ZixIt (filed as Exhibit
4.1 to ZixIt's Form 10-K for the year ended December 31, 1999,
and incorporated herein by reference).
*5.1 Opinion of Ronald A. Woessner.
*23.1 Consent of Ronald A. Woessner (contained in Exhibit 5.1).
*23.2 Consent of Ernst & Young LLP.
*24.1 Power of Attorney (found on page II-4 of this registration
statement).
</TABLE>
----------
*Filed electronically herewith.
II-5
