<PAGE> 1
As filed with the Securities and Exchange Commission on May 8, 2000.
Registration No. 333-___________.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
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)
ONE GALLERIA TOWER
13355 NOEL ROAD, SUITE 1555
DALLAS, TEXAS 75240-6604
(972) 702-7055
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
---------------
STEVE M. YORK
CHIEF FINANCIAL OFFICER
ONE GALLERIA TOWER
13355 NOEL ROAD, SUITE 1555
DALLAS, TEXAS 75240-6604
(972) 702-7055
(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: [ ]
<TABLE>
<CAPTION>
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
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 3,055,557 $35.00 $106,944,495 $28,233.35
======================================================================================================================
</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 May 3, 2000.
------------------------------------------------------------
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
May 8, 2000
ZIXIT CORPORATION
3,055,557 SHARES
COMMON STOCK
-------------------
This prospectus relates to an offering of up to 3,055,557 shares of our
common stock, par value $.01 per share, acquired pursuant to a Common Stock and
Warrant Purchase Agreement, dated April 11, 2000, by and between us and H. Wayne
Huizenga and his affiliates and assigns.
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 10.
Our common stock is quoted on the NASDAQ National Market under the
symbol "ZIXI". On May 3, 2000, the last sale price of our common stock, as
reported on NASDAQ, was $35.00 per share.
-------------------
THIS INVESTMENT INVOLVES A HIGH DEGREE OF
RISK. PLEASE SEE "RISK FACTORS" BEGINNING ON
PAGE 2.
-------------------
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 May 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.......................................................8
Plan of Distribution......................................................10
Use of Proceeds...........................................................12
Legal Matter..............................................................12
Experts...................................................................12
</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.
i
<PAGE> 4
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 1997 and 1998.
In 1999, we began developing digital signature and encryption
technology and have been planning a series of products that enhance privacy,
security and convenience over the Internet. To date, we have not earned any
revenues from these products. ZixMail(TM), which was commercially released in
March 2000, is a secure document delivery, private email and messaging tracking
service that enables Internet users worldwide to easily send and receive
encrypted and digitally signed communications using their existing email systems
and addresses. ZixCharge(TM), which has not been commercially released, is a
shopping portal and payment authorization system that enables consumers to
purchase goods and services over the Internet without being required to provide
personal and charge card information to Internet merchants. Additionally, in
October 1999, we purchased all the outstanding shares of Anacom Communications,
Inc., a provider of Internet transaction processing and real-time credit
processing services to Internet merchants.
Successful growth of a development stage enterprise, like ours, is
costly. In addition, the Internet arena is highly competitive. Our growth
depends on the timely development and market acceptance of our new products. Our
future growth involves risks and uncertainties, and there are no assurances that
we will be successful in our current business endeavors. See "RISK FACTORS" on
page 2.
We were incorporated in Texas in 1988. Our executive offices are
located at One Galleria Tower, 13355 Noel Road, Suite 1555, Dallas, Texas
75240-6604, and our telephone number is (972) 702-7055. Our Web site address is
www.zixit.com. Information contained in 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.
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<PAGE> 5
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 (we refer to it as the
"Exchange Act"). The words "expect," "estimate," "anticipate," "predict,"
"believe" 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
companies in the early stages of development. These risks and uncertainties are
often worse for companies in new and rapidly evolving markets, particularly
Internet-related businesses.
THE MARKET MAY NOT BROADLY ACCEPT OUR NEW PRODUCTS, WHICH COULD
ADVERSELY AFFECT OUR GROWTH PROSPECTS.
The ZixMail and ZixCharge products are targeted at the new and rapidly
evolving market 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. The commercial version of ZixMail was released in
March 2000. ZixCharge has not been commercially released,
however.
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<PAGE> 6
o We must be able to achieve broad market acceptance for our
products. There is currently no known Internet secure document
delivery and private messaging system, such as ZixMail, that
currently operates at the scale that we would require, at our
current expenditure levels and proposed pricing, to become
profitable from our ZixMail operations. To reach a larger
ZixMail customer base than we can reach through our direct
sales and marketing efforts, we are pursuing strategic or
other similar collaborative relationships with third parties.
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
users. Moreover, in any event, there is no assurance that
enough paying users of ZixMail 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 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. To obtain access to large numbers of
consumers, we are pursuing strategic or similar collaborative
relationships with financial institutions or other companies
that have existing business relationships with large numbers
of people. 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.
If we are unable to obtain the necessary critical mass, we may
decide not to commercially introduce ZixCharge.
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 THAT COULD RENDER OUR
PRODUCTS 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 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
3
<PAGE> 7
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.
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.
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 ZixMail service
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. Our planned
ZixCharge business will retain certain confidential customer information in our
secure data center. 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.
ZIXMAIL AND ZIXCHARGE COULD CONTAIN UNKNOWN DEFECTS OR ERRORS.
ZixMail and 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
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<PAGE> 8
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 ZixMail product employs, and future products 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 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 ZixMail. Failure to
obtain the required governmental approvals would preclude us from selling
ZixMail 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.
We cannot assure you that ZixMail or ZixCharge will become a generally
accepted standard 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
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<PAGE> 9
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 previous 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.
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.
We cannot assure you 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 other periodic SEC filings. We
are, of course, also subject to general economic risks.
6
<PAGE> 10
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
Securities and Exchange Commission (we refer to it as 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 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
One Galleria Tower
13355 Noel Road, Suite 1555
Dallas, Texas 75240-6604
Telephone: (972) 702-7055
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<PAGE> 11
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.
SELLING SHAREHOLDERS
The shares of common stock being offered were acquired by each of the
selling shareholders pursuant to a Common Stock and Warrant Purchase Agreement,
dated April 11, 2000, and related Registration Rights Agreement (filed as
exhibits to a Form 8-K which was filed with the SEC on April 12, 2000). The
Common Stock and Warrant Purchase Agreement was amended on April 27, 2000 by
letter agreement (filed as an exhibit to a Form 8-K filed with the SEC on May 3,
2000).
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 the beneficial ownership
has been furnished by the selling shareholders. Of the 3,055,557 shares offered
by this prospectus, 916,667 are issued and outstanding as of the date of this
prospectus, and 2,138,890 shares have been reserved for issuance by our company
to the selling shareholders upon the exercise of outstanding warrants as set
forth in the endnote to the following table.
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Except for H. Wayne Huizenga, who has been elected as a member of our
Board of Directors, none of the selling shareholders has had any position,
office or other material relationship with us within the past three years.
Each of the selling shareholders' beneficial ownership after the
offering is less than 1% of our common stock, based on the 16,553,363 shares of
our common stock outstanding on May 3, 2000. Beneficial ownership after the
offering assumes all the shares that may be offered are sold.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP PRIOR BENEFICIAL OWNERSHIP
TO OFFERING(1) AFTER OFFERING
----------------------------------- ---------------------
NAME OF BENEFICIAL OWNER NUMBER OF SHARES SHARES TO BE SOLD NUMBER OF SHARES
------------------------ ---------------- ----------------- ---------------------
<S> <C> <C> <C>
1. Andrew J. Sukawaty Revocable Trust dated 6,943 6,943 0
January 14, 2000
2. Rosalie V. Arthur 3,473 3,473 0
3. Rosanne Badowski 6,943 6,943 0
4. John E. Berndt 6,943 6,943 0
5. Berrard Holdings Limited Partnership 69,443 69,443 0
6. Cris V. Branden 13,890 13,890 0
7. Kevin E. Brauer 6,943 6,943 0
8. Cascade Investment, L.L.C. 69,443 69,443 0
9. William J. Conaty 6,943 6,943 0
10. Dennis D. Dammerman 6,943 6,943 0
11. DBV Investments, L.P. 69,443 69,443 0
12. John C. Esrey 6,943 6,943 0
13. William T. Esrey, Jr. 6,943 6,943 0
14. David E. Fanta 5,556 5,556 0
15. David C. Feldman 5,556 5,556 0
16. Finally Limited Partnership 48,610 48,610 0
17. Albert Fried, Jr. 20,833 20,833 0
18. Michael B. Fuller and Mary G. Fuller,
Joint Tenants 6,943 6,943 0
19. G Harry Huizenga Enterprises, L.L.C. 6,946 6,946 0
20. Troy L. Gabriel 5,209 5,209 0
21. H Family Limited Partnership 347,220 347,220 0
22. H. Wayne Huizenga, Jr. 173,610 173,610 0
23. H Wayne Huizenga Sr Perpetual Trust Master Trust I 50,636 50,636 0
Share A (dated December 23, 1999)
24. H Wayne Huizenga Sr Perpetual Trust Master Trust I 50,636 50,636 0
Share B (dated December 23, 1999)
25. H Wayne Huizenga Sr Perpetual Trust Master Trust I 50,636 50,636 0
Share C (dated December 23, 1999)
26. H Wayne Huizenga Sr Perpetual Trust Master Trust I 50,636 50,636 0
Share D (dated December 23, 1999)
27. Kris E. Hansel 1,390 1,390 0
28. Harris W. Hudson 138,889 138,889 0
29. Holly J. Hudson 65,393 65,393 0
30. Steven W. Hudson 65,393 65,393 0
31. Huizenga Family Foundation, Inc. 34,720 34,720 0
32. Huizenga Investments Limited Partnership 69,450 69,450 0
33. Joseph H. Izhakoff 1,390 1,390 0
34. Jean Huizenga Enterprises, L.L.C. 6,943 6,943 0
35. George D. Johnson, Jr. 138,889 138,889 0
</TABLE>
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<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP PRIOR BENEFICIAL OWNERSHIP
TO OFFERING(1) AFTER OFFERING
----------------------------------- --------------------
NAME OF BENEFICIAL OWNER NUMBER OF SHARES SHARES TO BE SOLD NUMBER OF SHARES
------------------------ ---------------- ----------------- --------------------
<S> <C> <C> <C>
36. J.W. Croghan Trustee, JWC Trust dated
December 28, 1982 69,443 69,443 0
37. Kevin F. Flynn June 21, 1992 Non-Exempt Trust 368,080 364,580 3,500
38. Kirk Holdings Limited Partnership 12,845 12,845 0
39. Meljay C. Krause 6,943 6,943 0
40. Arthur A. Kurtze 6,943 6,943 0
41. Ronald T. Lemay 69,450 69,450 0
42. Lion Ventures LLC 8,680 8,680 0
43. LM Private Investments, L.P. 5,556 5,556 0
44. Martha J Huizenga Holdings Limited Partnership 34,723 34,723 0
45. Michael S. Egan Grantor Retained Annuity Trust 6,943 6,943 0
F/B/O Riley Martin Michael Egan (dated April 30, 1996)
46. Michael S. Egan Grantor Retained Annuity Trust 6,943 6,943 0
F/B/O Teague Michael Thomas Egan (dated April 30, 1996)
47. Michael S. Egan Living Trust 72,220 72,220 0
48. Gene Ostrow 6,943 6,943 0
49. Philip V. Petrocelli 6,943 6,943 0
50. PKI Investment Company, L.L.C. 121,525 121,525 0
51. Gary Reiner 6,943 6,943 0
52. Richard Rosenblatt 24,306 24,306 0
53. John M. Samuels 6,943 6,943 0
54. Theodore H. Schell 6,943 6,943 0
55. John A. Schneider 69,445 69,445 0
56. Robin M. Segaul 693 693 0
57. Keith S. Sherin 6,943 6,943 0
58. Donald R. Sinclair 5,556 5,556 0
59. Thistle Hill Partners, Ltd. 5,556 5,556 0
60. William T. Esrey, Trustee U/T/A dated December 12, 69,450 69,450 0
1985, F/B/O William T. Esrey
61. I. Benjamin Watson, III 6,943 6,943 0
62. Weezor I Limited Partnership 173,608 173,608 0
63. John F. Welch 69,450 69,450 0
64. Wincrest Ventures, L.P. 55,556 55,556 0
65. Peter W. Wright 69,443 69,443 0
66. LKL Partners, a Florida general partnership 50,379 50,379 0
</TABLE>
(1) The stated numbers include shares directly owned as well as shares
issuable upon the exercise of certain warrants issued pursuant to the
Common Stock and Warrant Purchase Agreement. Of the shares included in
the table, 916,667 shares are issuable pursuant to warrants (held
pro-rata by the selling shareholders) that are immediately exercisable,
and 1,222,223 shares are issuable pursuant to warrants (held pro-rata
by the selling shareholders) that first become exercisable on May 1,
2001.
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
10
<PAGE> 14
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.
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 shareholder 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 shareholder. 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.
11
<PAGE> 15
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 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.
12
<PAGE> 16
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC registration fee $28,233.35
NASDAQ filing fee 30,555.00*
Accounting fees and expenses 1,000.00*
Legal fees and expenses 5,000.00*
Miscellaneous expenses 2,000.00*
----------
Total $66,788.35
==========
</TABLE>
- ---------------
* 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
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> 17
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> 18
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 May 8, 2000.
ZIXIT CORPORATION
By: /s/ Steve M. York
-----------------------------
Steve M. York
Senior Vice President, Chief
Financial Officer and
Treasurer
II-3
<PAGE> 19
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 President, Chief May 8, 2000
- -------------------------------- Executive Officer and
David P. Cook Director (Principal Executive
Officer)
/s/ Steve M. York Senior Vice President, Chief May 8, 2000
- -------------------------------- Financial Officer and
Steve M. York Treasurer (Principal Financial
and Accounting Officer)
/s/ Michael E. Keane Director May 8, 2000
- --------------------------------
Michael E. Keane
/s/ Jeffrey P. Papows Director May 8, 2000
- --------------------------------
Jeffrey P. Papows
/s/ Antonio R. Sanchez, Jr. Director May 8, 2000
- --------------------------------
Antonio R. Sanchez, Jr.
/s/ Dr. Ben G. Streetman Director May 8, 2000
- --------------------------------
Dr. Ben G. Streetman
</TABLE>
II-4
<PAGE> 20
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<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.
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.
<PAGE> 1
EXHIBIT 3.2
RESTATED BYLAWS
OF
ZIXIT CORPORATION
SEPTEMBER 14, 1999
<PAGE> 2
RESTATED BYLAWS
OF
ZIXIT CORPORATION
ARTICLE I
OFFICES
1. Principal Office. The principal office of the Corporation shall be
located in the City of Dallas, County of Dallas, State of Texas. The Corporation
also may have offices at such other places, both within and without the State of
Texas, as the Board of Directors may from time to time determine or the business
of the Corporation may require.
2. Registered Office. The registered office of the Corporation,
required by the Texas Business Corporation Act (the "Act") to be maintained in
the State of Texas, may be, but need not be, the same as its principal place of
business in the State of Texas or the business office of a domestic or foreign
corporation authorized to transact business in the State of Texas. The address
of the registered office of the corporation may be changed from time to time by
resolution of the Board of Directors.
ARTICLE II
SHAREHOLDERS
1. Time and Place of Meeting. Meetings of the shareholders shall be
held at such times and at such places, within or without the State of Texas, as
shall be determined by the Board of Directors.
2. Annual Meetings. Annual meetings of shareholders shall be held on
such date and at such time and place during the fourth month of each fiscal year
(beginning in 1988) as shall be determined by the Board of Directors of the
Corporation, at which they shall elect a Board of Directors and transact such
other business as may properly be brought before the meeting. The date of the
annual meeting of the shareholders may be a date or time different than that set
forth above if the Board of Directors so determines and so states in the notice
of the meeting or in a duly executed waiver thereof.
3. Special Meetings. Special meetings of the shareholders may be called
at any time by the President or the Board of Directors, and shall be called by
the President or the Secretary at the request in writing of a majority of the
Board of Directors or at the request in writing of the holders of not less than
ten percent (10%) of all the shares issued, outstanding and entitled to vote at
the meeting. Such request shall state the purpose or purposes of the proposed
meeting. Business transacted at special meetings shall be confined to the
purposes stated in the notice of the meeting.
<PAGE> 3
4. Notice. Written or printed notice stating the place, day and hour of
the meeting and, in case of a special meeting, the purpose or purposes for which
the meeting is called, shall be delivered not less than ten (10) nor more than
fifty (50) days before the date of the meeting, either personally or by mail, by
or at the discretion of the President, the Secretary, or the officer or person
calling the meeting, to each shareholder entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the United
States mail addressed to the shareholder at his address as it appears on the
share transfer records of the Corporation.
5. Closing of Share Transfer Records and Fixing Record Date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose (other than determining shareholders entitled to
consent to action by shareholders proposed to be taken without a meeting of
shareholders), the Board of Directors of the Corporation may provide that the
share transfer records shall be closed for a stated period but not to exceed, in
any case, sixty (60) days. If the share transfer records shall be closed for the
purpose of determining shareholders entitled to notice of or to vote at a
meeting of shareholders, such records shall be closed for at least ten (10) days
immediately preceding such meeting. In lieu of closing the share transfer
records, the Board of Directors may fix in advance a date as the record date for
any such determination of shareholders, such date in any case to be not more
than sixty (60) days and, in the case of a meeting of shareholders, not less
than ten (10) days, prior to the date on which the particular action requiring
such determination of shareholders is to be taken. If the share transfer records
are not closed and no record date is fixed for the determination of shareholders
entitled to notice of or to vote at a meeting of shareholders, or shareholders
entitled to receive payment of a dividend, the date on which notice of the
meeting is mailed or the date on which the resolution of the Board of Directors
declaring such dividend is adopted, as the case may be, shall be the record date
for such determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof except
where the determination has been made through the closing of the share transfer
records and the stated period of closing has expired.
Unless a record date shall have previously been fixed or
determined pursuant to this section, whenever action by shareholders is proposed
to be taken by consent in writing without a meeting of shareholders, the Board
of Directors may fix a record date for the purpose of determining shareholders
entitled to consent to that action, which record date shall not precede, and
shall not be more than ten (10) days after, the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no record date
has been fixed by the Board of Directors and the prior action of the Board of
Directors is not required by this section, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be
the first date on which a signed written consent setting forth the action taken
or proposed to be taken is delivered to the Corporation by delivery to its
registered office, its principal place of business, or an officer or agent of
the Corporation having custody of the books in which proceedings of meetings of
shareholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. Delivery to the Corporation's
principal place of business shall be addressed to the President. If no record
date shall have been fixed by the Board of Directors and prior action of the
Board of Directors is required by this section, the record date for determining
shareholders entitled to consent to action in writing without a meeting shall be
at the close of business on the date on which the Board of Directors adopts a
resolution taking such prior action.
2
<PAGE> 4
6. Voting List. The officer or agent of the Corporation having charge
of the stock transfer books for shares of the Corporation shall make, at least
ten (10) days before each meeting of the shareholders, a complete list of the
shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of voting
shares held by each, which list, for a period of ten (10) days prior to such
meeting, shall be kept on file at the registered office or principal place of
business of the Corporation and shall be subject to inspection by any
shareholder at any time during the usual business hours. Such list shall also be
produced and kept open at the time and place of the meeting and shall be subject
to the inspection of any shareholder during the whole time of the meeting. The
original stock transfer books shall be prima facie evidence as to who are the
shareholders entitled to examine such list or transfer books or to vote at any
meetings of shareholders.
7. Quorum. A quorum shall be present at all meetings of shareholders
for the transaction of business if the holders of a majority of the issued and
outstanding shares entitled to vote are represented at the meeting in person or
by proxy, unless otherwise provided in the Articles of Incorporation or the Act.
However, the shareholders represented in person or by proxy at a meeting of
shareholders at which a quorum is not present may adjourn the meeting until such
time and to such place as may be determined by a vote of the holders of a
majority of the shares represented in person or by proxy at that meeting. Once a
quorum is present at a meeting of shareholders, the shareholders represented in
person or by proxy at the meeting may conduct such business as may be properly
brought before the meeting until it is adjourned, and the subsequent withdrawal
from the meeting of any shareholder or the refusal of any shareholder
represented in person or by proxy to vote shall not affect the presence of a
quorum at the meeting.
8. Voting. With respect to any matter, other than the election of
directors or a matter for which the affirmative vote of the holders of a
specified portion of the shares entitled to vote is required by this section,
the affirmative vote of the holders of a majority of the shares entitled to vote
on that matter and represented in person or by proxy at a meeting of
shareholders at which a quorum is present shall be the act of the shareholders.
Directors shall be elected by a plurality of the votes cast by
the holders of shares entitled to vote in the election of directors at a meeting
of shareholders at which a quorum is present.
Each shareholder shall at every meeting of the shareholders be
entitled to one vote in person or by proxy for each share having voting power
held by such shareholder, except to the extent that the voting rights of the
shares of any class or classes are limited or denied by the Articles of
Incorporation. At each election for directors every shareholder shall be
entitled to vote, in person or by proxy, the number of shares owned by him for
as many persons as there are directors to be elected and for whose election he
has a right to vote. Cumulative voting is prohibited by the Articles of
Incorporation. Every proxy must be executed in writing by the shareholder. A
telegram, telex, cablegram, or similar transmission by the shareholder, or a
photographic, photostatic, facsimile, or similar reproduction of a writing
executed by the shareholder, shall be treated as an execution in writing for
purposes of this section. No proxy shall be valid after eleven (11) months from
the date of its execution unless otherwise provided therein. Each proxy shall be
revocable unless expressly provided therein to be irrevocable or unless
otherwise made irrevocable by law.
3
<PAGE> 5
An irrevocable proxy, if noted conspicuously on the certificate
representing the shares that are subject to the irrevocable proxy, shall be
specifically enforceable against the holder of those shares or any successor or
transferee of the holder. Unless noted conspicuously on the certificate
representing the shares that are subject to the irrevocable proxy, an
irrevocable proxy, even though otherwise enforceable, is ineffective against a
transferee for value without actual knowledge of the existence of the
irrevocable proxy at the time of the transfer or against any subsequent
transferee (whether or not for value), but such an irrevocable proxy shall be
specifically enforceable against any other person who is not a transferee for
value from and after the time that the person acquires actual knowledge of the
existence of the irrevocable proxy.
Shares registered in the name of another corporation may be voted
by such officer, agent or proxy as the bylaws of such corporation may prescribe
or, in the absence of such provisions, as the board of directors of such
corporation may determine.
Shares held by an administrator, executor, guardian or
conservator may be voted by him, either in person or by proxy, without a
transfer of such shares into his name. Shares standing in the name of a trustee
may be voted by him, either in person or by proxy, but no trustee shall be
entitled to vote shares held by him without a transfer of such shares into his
name as trustee.
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be voted by
such receiver without being transferred into his name, if such authority is
contained in an appropriate order of the court that appointed the receiver.
A shareholder whose shares are pledged shall be entitled to vote
such shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so transferred.
Shares of its own stock belonging to the Corporation or held by
it in a fiduciary capacity shall not be voted, directly or indirectly, at any
meeting, and shall not be counted in determining the total number of outstanding
shares at any given time.
9. Action by Unanimous Consent. Any action required to be taken at any
annual or special meeting of shareholders, or any action which may be taken at
any annual or special meeting of shareholders, may be taken without a meeting,
without prior notice, and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall have been signed by the holder or
holders of all the shares entitled to vote with respect to the action that is
the subject of the consent.
Every written consent shall bear the date of signature of each
shareholder who signs the consent. No written consent shall be effective to take
the action that is the subject of the consent unless, within sixty (60) days
after the date of the earliest dated consent delivered to the corporation in the
manner required by this section, a consent or consents signed by the holder or
holders of shares having not less than the minimum number of votes that would be
necessary to take the action that is the subject of the consent are delivered to
the Corporation by delivery to its registered office, its principal place of
business, or an officer or agent of the corporation having custody of the books
in which proceedings of meetings of shareholders are recorded. Delivery shall be
by hand or certified or registered mail, return receipt requested. Delivery to
the Corporation's principal place of business shall be addressed to the
President.
4
<PAGE> 6
A telegram, telex, cablegram, or similar transmission by a
shareholder, or a photographic, photostatic, facsimile, or similar reproduction
of a writing signed by a shareholder, shall be regarded as signed by the
shareholder for purposes of this section.
Prompt notice of the taking of any action by shareholders without
a meeting by less than unanimous written consent shall be given to those
shareholders who did not consent in writing to the action.
If any action by shareholders is taken by written consent, any
articles or documents filed with the Secretary of State of the State of Texas as
a result of the taking of the action shall state, in lieu of any statement
required by this section or by the Act concerning any vote of shareholders, that
written consent has been given in accordance with the provisions of this section
and that any written notice required by this section has been given.
10. Presence at Meetings by Means of Communication Equipment.
Shareholders may participate in and hold a meeting of such shareholders by means
of conference telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this section shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
ARTICLE III
DIRECTORS
1. Number of Directors. The number of directors of the Corporation
shall be fixed from time to time by resolution of the Board of Directors. Until
otherwise fixed by resolution of the Board of Directors, the number of directors
shall be six. No decrease in the number of directors shall have the effect of
reducing the term of any incumbent director. Directors shall be elected at the
annual meeting of the holders of shares entitled to vote in the election of
directors, except as provided in Section 2 of this Article III, and each
director shall hold office until (i) his successor is elected and qualified,
(ii) he dies, (iii) he resigns, or (iv) he is removed. Directors need not be
residents of the State of Texas or shareholders of the Corporation.
2. Vacancies. Subject to other provisions of this section, any vacancy
occurring in the Board of Directors may be filled by the affirmative vote of a
majority of the remaining directors, though the remaining directors may
constitute less than a quorum of the Board of Directors as fixed by Section 10
of this Article III. A director elected to fill a vacancy shall be elected for
the unexpired term of his predecessor in office. Any directorship to be filled
by reason of an increase in the number of directors may be filled by unanimous
vote of the existing directors; provided, however, that the Board of Directors
may not fill more than two (2) such directorships during the period between any
two (2) successive annual meetings of shareholders. Any vacancy occurring in the
Board of Directors or any directorship to be filled by reason of an increase in
the number of directors may be filled by election at an annual or special
meeting of the shareholders called for that purpose. Shareholders holding a
majority of the issued and outstanding shares entitled to vote may, at any time,
terminate the term of office of all or any of the directors, with or without
cause, by a vote at any annual or special meeting, or by written consent, signed
by the holders of all of such shares, and filed with the secretary or, in his
absence, with any other officer. Such removal shall be effective immediately
upon such shareholder action even if successors are not elected simultaneously,
and
5
<PAGE> 7
the vacancies on the Board of Directors caused by such action shall be filled
only by election by the shareholders. Furthermore, the Board of Directors may,
by the vote or by the written consent of 66% or more of the entire Board of
Directors, terminate the term of office of any director who was within the
previous 90 day period an employee of the Corporation (or one or more of its
affiliates) but who is no longer an employee of the Corporation or of any of its
affiliates. Such removal shall be effective immediately upon such action by the
Board of Directors even if a successor is not elected simultaneously.
3. General Powers. The business of the Corporation shall be managed by
its Board of Directors, which may exercise all powers of the Corporation and do
all such lawful acts and things, as are not by the Act, the Articles of
Incorporation or these Bylaws directed or required to be exercised or done by
the shareholders.
4. Place of Meetings. The Board of Directors of the Corporation may
hold meetings, both regular and special, either within or without the State of
Texas.
5. Annual Meetings. The first meeting of each newly elected Board of
Directors shall be held, without further notice, immediately following the
annual meeting of shareholders at which such directors were elected, provided a
quorum shall be present. In the event such meeting is not held immediately
following the annual meeting, the meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
of notice signed by all of the directors.
6. Regular Meetings. Regular meetings of the Board of Directors shall
be held without special notice at such time and at such place as shall from time
to time be determined by the Board of Directors.
7. Special Meetings. Special meetings of the Board of Directors may be
called by or at the request of the President, and shall be called by the
Secretary on the written request of a majority of the incumbent directors. The
person or persons authorized to call special meetings of the Board of Directors
may fix the place for holding any special meeting of the Board of Directors
called by them.
8. Notice of Special Meetings. Notice of any special meetings shall be
given at least forty-eight (48) hours prior thereto if given either personally
(including written notice delivered personally or telephone notice) or by
telegram, and at least one hundred twenty (120) hours prior thereto if given by
written notice mailed to each director at the address of his business or
residence. If mailed, the notice shall be deemed to be delivered when deposited
in the United States mail addressed, in the above-specified manner, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver of
notice for such meeting.
9. Waiver of Notice. Any director may waive notice of any meeting, as
provided in Article IV, Section 2, of these Bylaws. The attendance of a director
at a meeting shall constitute a waiver of notice of such meeting, except where a
director attends a meeting for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called or
convened.
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10. Quorum and Voting. At all meetings of the Board of Directors, the
presence of a majority of the number of directors fixed by Article III, Section
1, of these Bylaws shall constitute a quorum for the transaction of business,
and the affirmative vote of at least a majority of the directors present at any
meeting at which there is a quorum shall be the act of the Board of Directors,
except as may be otherwise specifically provided by the Act, the Articles of
Incorporation or these Bylaws. If a quorum shall not be present at any meeting
of the Board of Directors, a majority of the directors present thereat may
adjourn the meeting from time to time without notice other than announcement at
the meeting, until a quorum shall be present.
11. Committees. The Board of Directors by resolution passed by a
majority of the full Board of Directors may designate an Executive Committee, to
consist of two or more directors, one of whom shall be designated as Chairman
and shall preside at all meetings of such Executive Committee and at least one
of whom shall be a person other than an officer or employee of the Corporation
or its subsidiaries. The Board of Directors may also designate one or more
directors to be alternate members of such Executive Committee, who may, subject
to any limitations imposed by the Board of Directors, replace absent or
disqualified members at any meeting of the Executive Committee. At any meeting
of the Executive Committee a majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business, and the act of a
majority of the members present at any meeting at which a quorum is present
shall be the act of the Executive Committee. To the extent provided in the
resolution of the Board of Directors, the Executive Committee shall have and may
exercise all of the authority of the Board of Directors, and shall have power to
authorize the seal of the corporation to be affixed to all papers which may
require it, subject to the limitations set forth in the Act, the Articles of
Incorporation or these Bylaws; provided, however, that the Executive Committee
shall not have the authority to authorize the issuance of shares of stock of the
Corporation or to declare dividends with respect to shares of stock of the
Corporation. The designation of such Executive Committee and the delegation
thereto of authority shall not operate to relieve the Board of Directors, or any
member thereof, of any responsibility imposed upon it or him by law. Meetings of
the Executive Committee may be called and notices given in the same manner as
calling and giving notice of special meetings of the Board of Directors. Any
member of the Executive Committee may be removed, for or without cause, by the
affirmative vote of a majority of the full Board of Directors. If any permanent
vacancy or vacancies occur in the Executive Committee, such vacancy or vacancies
shall be filled by the affirmative vote of a majority of the full Board of
Directors.
The Board of Directors by resolution passed by a majority of the
full Board of Directors may designate other committees, each committee to
consist of two or more directors, one of whom shall be designated as Chairman
and shall preside at all meetings of such committee. The Board of Directors may
also designate one or more directors to be alternate members of any committee,
who may, subject to any limitations imposed by the Board of Directors, replace
absent or disqualified members at any meeting of that committee. To the extent
provided in the resolution of the Board of Directors, the committees shall have
such power and authority and shall perform such functions as may be provided in
such resolution, subject to the limitations set forth in the Act, the Articles
of Incorporation or these Bylaws. At any meeting of the committee a majority of
the members of the committee shall constitute a quorum for the transaction of
business, and the act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the committee. Such committee or
committees shall have such name or names as may be designated by the Board of
Directors.
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The Executive Committee and all other such committees shall keep
regular minutes of their proceedings and report the same to the Board of
Directors at the meeting of the Board of Directors next succeeding such action.
12. Compensation of Directors. Directors, as such, shall not receive
any stated salary for their services, but by resolution of the Board of
Directors, a fixed sum and expenses of attendance, if any, may be allowed for
attendance at each regular or special meeting of the Board of Directors. Nothing
herein contained shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of any committee may, by resolution of the Board of Directors, be allowed like
compensation for attending meetings of such committee.
13. Action by Unanimous Written Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors or of a committee
designated by the Board of Directors may be taken without a meeting if a written
consent, setting forth the action so taken, is signed by all the members of the
Board of Directors or the committee, as the case may be, and such consent shall
have the same force and effect as a unanimous vote at a meeting.
14. Presence at Meetings by Means of Communication Equipment. Members
of the Board of Directors of the Corporation or any committee designated by the
Board of Directors may participate in and hold a meeting of the Board of
Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation in a meeting pursuant to this
section shall constitute presence in person at such meeting, except where a
person participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.
ARTICLE IV
NOTICES
1. Form of Notice. Whenever under the provisions of the Act, the
Articles of Incorporation or these Bylaws, notice is required to be given to any
director or shareholder, and no provision is made as to how such notice shall be
given, such notice shall be given in writing, by mail, postage prepaid,
addressed to such director or shareholder at such address as appears on the
books of the Corporation, provided that such notice as is required to be given
to any director also may be given either personally (including written notice
delivered personally or telephone notice) or by prepaid facsimile. Any notice
required or permitted to be given by mail shall be deemed to be given at the
time when the same is deposited in the United States mail addressed in the
above-specified manner, with postage thereon prepaid.
2. Waiver. Whenever any notice is required to be given to any director
or shareholder of the Corporation under the provisions of the Act, the Articles
of Incorporation or these Bylaws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated in such notice, shall be equivalent to the giving of such notice.
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ARTICLE V
OFFICERS
1. General. The elected officers of the Corporation shall be a
President, one or more Vice Presidents, with or without such descriptive titles
as the Board of Directors shall deem appropriate, a Secretary and a Treasurer.
The Board of Directors by resolution may also appoint one or more Assistant
Secretaries, Assistant Treasurers and such other officers and assistant officers
and agents as from time to time may appear to be necessary or advisable in the
conduct of the affairs of the Corporation. Any two or more offices may be held
by the same person.
2. Election. The Board of Directors at its first meeting after each
annual meeting of the shareholders shall elect and appoint the officers to fill
the positions designated in Section 1 of this Article V. The Board of Directors
may appoint such other officers and agents as it shall deem necessary and may
determine the salaries of all officers and agents from time to time. The
officers shall hold office until their successors are chosen and qualified. Any
officer elected or appointed by the Board of Directors may be removed, for or
without cause, at any time by a majority vote of the directors present at a
meeting of the Board of Directors at which a quorum is present, when in its
judgment the best interest of the Corporation will be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the
persons so removed. Election or appointment of an officer or agent shall not of
itself create contract rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise shall be filled by the
Board of Directors.
3. Chairman of the Board. The Chairman of the Board shall be chosen
from among the non-employee directors. He shall preside at all meetings of the
Board of Directors, unless he shall be absent or unless he shall, at his
election, designate the President to preside in his stead, and shall have such
incidental powers and duties as are related to the conduct of such meetings. The
Chairman of the Board shall also be an ex-officio member of all standing
committees.
4. President. The President shall be the Chief Executive Officer of the
Corporation and shall be responsible for the operations and business affairs of
the Corporation. He shall preside at all meetings of the shareholders and of the
Board of Directors in the absence of the Chairman of the Board, unless he shall
be absent or unless he shall, at his election, designate another officer to
preside in his stead. He shall, in general, have supervisory power over all of
the other officers and the business activities of the Corporation, subject to
the direction of the Board of Directors. He shall have authority to execute
bonds, deeds and contracts in the name of the Corporation and to affix the
corporate seal thereto; to sign stock certificates; to cause the employment or
appointment of such employees and agents of the Corporation as the proper
conduct of operations may require, and to fix their compensation, subject to the
provisions of these Bylaws and such resolutions as may be adopted by the Board
of Directors from time-to-time; to remove or suspend any employee or agent who
shall have been employed or appointed under his authority or under authority of
an officer subordinate to him; to suspend for cause, pending final action by the
Board of Directors which shall have supervisory power over him, any officer
subordinate to him and, in general, to exercise all powers usually pertaining to
the office of the President of a corporation, except as otherwise provided in
these Bylaws. The President shall see that all orders and resolutions of the
Board of Directors and committees thereof are carried into effect.
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5. Vice Presidents. The Vice President or, if there be more than one,
the Vice Presidents, shall perform all such duties and services as shall be
assigned to or required of them from time to time by the Board of Directors, the
Executive Committee and any officer superior to him.
6. Secretary and Assistant Secretaries. The Secretary shall attend all
meetings of the Board of Directors and all meetings of the shareholders and
record all proceedings of the meetings of the shareholders of the Corporation
and of the Board of Directors in a book to be kept for that purpose, and shall
perform like duties for the Executive Committee when required. He shall give, or
cause to be given, notice of all meetings of the shareholders and meetings of
the Board of Directors. He shall have charge of the seal of the Corporation and
have authority to affix the same to any instrument requiring it, and when so
affixed, it shall be attested by his signature or by the signature of the
Treasurer, an Assistant Secretary or an Assistant Treasurer, which may be in
facsimile. He shall keep and account for all books, documents, papers and
records of the Corporation except those for which some other officer or agent is
properly accountable. He shall have authority to sign stock certificates, and
shall generally perform all the duties usually appertaining to the office of the
Secretary of a corporation.
Assistant Secretaries, in the order of their seniority unless
otherwise determined by the Board of Directors, shall assist the Secretary, and
in the absence or disability of the Secretary, perform the duties and exercise
the powers of the Secretary. They shall perform such other duties and have such
other powers as the Board of Directors may prescribe from time to time.
7. Treasurer and Assistant Treasurers. The Treasurer shall be the chief
financial officer of the Corporation and shall have active control of and shall
be responsible for all matters pertaining to the finances of the Corporation. He
shall have the care and custody of all monies, funds and securities of the
Corporation and shall deposit all monies and other valuable effects in the name
of and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors. He shall cause to be recorded a statement
of all receipts and disbursements of the Corporation in order that proper
entries may be made in the books of account. He shall have the power to sign
stock certificates, to endorse for deposit or collection, or otherwise, all
checks, drafts, notes, bills of exchange, or other commercial paper payable to
the Corporation, and to give proper receipts or discharges for all payments to
the Corporation. He shall be responsible for all terms of credit granted by the
Corporation and for the collection of all of its accounts. If required by the
Board of Directors, the Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
Assistant Treasurers, in the order of their seniority unless
otherwise determined by the Board of Directors, shall assist the Treasurer, and
in the absence or disability of the Treasurer, perform the duties and exercise
the powers of the Treasurer. They shall perform such other duties and have such
other powers as the Board of Directors may prescribe from time to time.
8. Bonding. If required by the Board of Directors, all or certain of
the officers shall give the Corporation a bond in such form, in such sum and
with such surety or sureties as shall be satisfactory to the Board of Directors,
for the faithful performance of the duties of their office and for the
restoration to the
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Corporation, in case of their death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in their possession or under their control belonging to the Corporation.
ARTICLE VI
CERTIFICATES REPRESENTING SHARES
1. Form of Certificates. The Corporation shall deliver certificates
representing all shares to which shareholders are entitled. Certificates
representing shares of the Corporation shall be in such form as shall be
determined by the Board of Directors and shall be numbered consecutively and
entered in the books of the Corporation as they are issued. Each certificate
shall state on the face thereof that the Corporation is organized under the laws
of the State of Texas; the name of the registered holder; the number, class of
shares and the designation of the series, if any, which said certificate
represents; and either the par value of the shares or a statement that the
shares are without par value. Each certificate shall also set forth on the back
thereof, a full or summary statement of matters required by the Act or the
Articles of Incorporation to be described on certificates representing shares,
and shall contain a statement on the face thereof referring to the matters set
forth on the back thereof. Certificates shall be signed by the President and the
Secretary or any Assistant Secretary, and may be sealed with the seal of the
Corporation or a facsimile thereof. If any certificate is countersigned by a
transfer agent or registered by a registrar, either of which is other than the
Corporation or an employee of the Corporation, the signatures of the
Corporation's officers may be facsimiles. In case any officer or officers who
have signed, or whose facsimile signature or signatures have been used on such
certificate or certificates, shall cease to be such officer or officers of the
Corporation, whether because of death, resignation or otherwise, before such
certificate or certificates have been delivered by the Corporation or its
agents, such certificate or certificates may be adopted, nevertheless, by the
Corporation and issued and delivered as though the person or persons who signed
the certificate or certificates or whose facsimile signature or signatures have
been used thereon had not ceased to be such officer or officers of the
Corporation.
2. Restrictions on Transferability of Shares. In the event any
restriction on the transfer, or registration of the transfer, of shares shall be
imposed or agreed to by the Corporation, as permitted by law, each certificate
representing shares so restricted shall conspicuously set forth a full or
summary statement of the restriction on the face of the certificate, or shall
set forth such statement on the back of the certificate and conspicuously refer
to the same on the face of the certificate, or shall conspicuously state on the
face or back of the certificate that such restriction exists pursuant to a
specified document and that the Corporation will furnish to the holder of the
certificate without charge upon written request to the Corporation at its
principal place of business or registered office a copy of the specified
document.
3. Lost Certificates. The Corporation may direct that a new certificate
or certificates be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to have been lost or destroyed,
upon the making of an affidavit of that fact by the person claiming the
certificate to be lost or destroyed. When authorizing the issuance of a new
certificate or certificates, the Board of Directors, in its discretion and as a
condition precedent to the issuance thereof, may require the owner of the lost
or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as it shall require and give the Corporation a
bond in such form, in such sum, and with such surety or sureties as the
Corporation may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost or
destroyed.
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4. Transfer of Shares. Shares of stock shall be transferable on the
books of the Corporation by the holder thereof in person or by his duly
authorized attorney. Subject to any restrictions on transfer set forth in the
Articles of Incorporation of the Corporation, these Bylaws or any agreement
among shareholders to which the Corporation is a party or has notice, upon
surrender to the Corporation or to the transfer agent of the Corporation of the
certificate representing shares duly endorsed or accompanied by proper evidence
of succession, assignment or authority to transfer, it shall be the duty of the
Corporation or the transfer agent of the Corporation to issue a new certificate
to the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
5. Registered Shareholders. The Corporation shall be entitled to
recognize the holder of record of any share or shares of stock as the holder in
fact thereof and, accordingly, shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except as
otherwise provided by law.
ARTICLE VII
INDEMNIFICATION
1. Indemnity. Each person who was or is made a party or is threatened
to be made a party to or is otherwise involved in any action, suit, or
proceeding, whether civil, criminal, administrative, or investigative and
including, without limitation, any "proceeding" referred to in art. 2.02-1 of
the Texas Business Corporation Act (hereinafter a "proceeding"), by reason of
the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation or of a partnership, joint venture, trust, or other enterprise,
including service with respect to an employee benefit plan (hereinafter an
"Indemnitee"), whether the basis of such proceeding is alleged action in an
official capacity as a director or officer or in any other capacity while
serving as a director of officer shall be indemnified and held harmless by the
Corporation to the fullest extent authorized by the Texas Business Corporation
Act or other applicable law of the State of Texas, as the same exists or may
hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification
rights than permitted prior thereto), against all expense, liability, and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA excise
taxes or penalties, and amounts paid or to be paid in settlement) reasonably
incurred or suffered by such Indemnitee in connection therewith, and such
indemnification shall continue as to an Indemnitee who has ceased to be a
director or officer and shall inure to the benefit of the Indemnitee's heirs,
executors, and administrators; provided, however, that, except for a proceeding
brought by an Indemnitee to enforce his or her rights to indemnification, the
Corporation shall indemnify any such Indemnitee in connection with a proceeding
(or part thereof) initiated by such Indemnitee only if such proceeding (or part
thereof) was authorized by the Board of Directors of the Corporation. The right
to indemnification conferred in this Article VII shall be a contract right and
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that, if the Texas Business
Corporation Act or other applicable law of the State of Texas requires, an
advancement of expenses incurred by an Indemnitee in his or her capacity as a
director of officer (and not in any other capacity in which service was or is
rendered by such Indemnitee, including, without limitation, service to an
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employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking complying in all respects with the requirements of the Texas
Business Corporation Act or other applicable law of the State of Texas
(hereinafter an "undertaking"), by or on behalf of such Indemnitee, to repay all
amounts so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right to appeal (hereinafter a "final
adjudication") that such Indemnitee is not entitled to be indemnified for such
expenses under this Article VII or otherwise. If the Corporation makes an
advancement of expenses to an Indemnitee, the Corporation shall be subrogated to
every right of recovery the Indemnitee may have against any insurance carrier
from whom the Corporation has purchased insurance for such purpose.
2. Remedy. If a claim under this Article VII is not paid in full by the
Corporation within 60 days after a written claim has been received by the
Corporation, the Indemnitee may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim. If successful in whole or
in part in any such suit, or in a suit by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit, including, without limitation, any appeal. In (i) any suit brought by the
Indemnitee to enforce a right to indemnification (but not in a suit brought by
the Indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (ii) in any suit by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the Indemnitee
has not met the applicable standard of conduct set forth in the Texas Business
Corporation Act or other applicable law of the State of Texas. Neither the
failure of the Corporation (including its Board of Directors, independent legal
counsel, or its shareholders) to have made a determination prior to the
commencement of such suit that the Indemnitee met the applicable standard of
conduct set forth in the Texas Business Corporation Act or other applicable law
of the State of Texas, nor an actual determination by the Corporation (including
its Board of Directors, independent legal counsel, or its shareholders) that the
Indemnitee has not met such applicable standard of conduct, shall create a
presumption that the Indemnitee has not met the applicable standard of conduct
or, in the case of such a suit brought by the Indemnitee, be a defense to such
suit. In any suit brought by the Indemnitee to enforce a right to
indemnification or to an advancement of expenses or by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
burden of proving that the Indemnitee is not entitled to be indemnified, or to
such advancement of expenses, under this Article VII or otherwise, shall be on
the Corporation.
3. Employees and Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, grant rights to indemnification and
to the advancement of expenses to any employee or agent of the Corporation to
the fullest extent of the provisions of this Article VII with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
4. Partial Indemnification; Interest.
(A) If it is determined pursuant to the provisions of the Texas
Business Corporation Act or other applicable law of the State of Texas, or by
the court before which such action was brought, that an Indemnitee is entitled
to indemnification as to some claims, issues, or matters, but not as to other
claims, issues, or matters, involved in any action, no matter by whom brought,
the person or persons making such determination (or the court) shall authorize
the reasonable proration of such expenses, judgments, penalties, fines, and
amounts incurred in settlement with respect to which indemnification is sought
by the Indemnitee, among such claims, issues, or matters as the person or
persons making such determination (or the court) shall deem appropriate in light
of all of the circumstances of such action.
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(B) If it is determined pursuant to the provisions of the Texas
Business Corporation Act or other applicable law of the State of Texas, or by
the court before which such action was brought, that certain amounts incurred by
the Indemnitee are, for whatever reason, unreasonable in amount, the person or
persons making such determination (or the court) shall authorize indemnification
to be paid by the Corporation to the Indemnitee for only such amounts as the
person or persons making such determination (or the court) shall deem reasonable
in light of all of the circumstances of such action.
(C) To the extent deemed appropriate pursuant to the provisions of the
Texas Business Corporation Act or other applicable law of the State of Texas, or
by the court before which such action was brought, interest shall be paid by the
Corporation to the Indemnitee, at a reasonable interest rate, for amounts for
which the Corporation indemnifies the Indemnitee.
5. Nonexclusivity. The right to indemnification and advancement of
expenses provided to an Indemnitee pursuant to this Article VII shall not be
deemed exclusive of any other rights to which the Indemnitee may be entitled
under any charter provision, bylaw, agreement, resolution, vote of shareholders
or disinterested directors, or otherwise, including, without limitation, under
the Texas Business Corporation Act or other applicable law of the State of
Texas, as then in effect, both as to acts in his or her official capacity and as
to acts in any other capacity.
6. Insurance.
(A) The Corporation may purchase and maintain insurance on behalf of an
Indemnitee against any liability asserted against him or her or incurred by or
on behalf of him or her whether or not the Corporation would have the power to
indemnify him or her against such liability under the provisions of this Article
VII or under the Texas Business Corporation Act or other applicable law of the
State of Texas, as then in effect. The purchase and maintenance of such
insurance shall not in any way limit or affect the rights and obligations of the
Corporation or an Indemnitee under this Article VII and the adoption of this
Article VII by the Corporation shall not in any way limit or affect the rights
and obligations of the Corporation or of the other party or parties thereto
under any such policy or agreement of insurance.
(B) If the Indemnitee shall receive payment from any insurance carrier
or from the plaintiff in any action against the Indemnitee in respect of
indemnified amounts after payments on account of all or part of such indemnified
amounts have been made by the Corporation pursuant to this Article VII, the
Indemnitee shall promptly reimburse the Corporation for the amount, if any, by
which the sum of such payment by such insurance carrier or such plaintiff and
payments by the Corporation to the Indemnitee exceeds such indemnified amounts;
provided, however, that such portions, if any, of such insurance proceeds that
are required to be reimbursed to the insurance carrier under the terms of its
insurance policy, such as deductible or coinsurance payments, shall not be
deemed to be payments to the Indemnitee hereunder. In addition, upon payment of
indemnified amounts under this Article VII, the Corporation shall be subrogated
to the Indemnitee's rights against any insurance carrier in respect of such
indemnified amounts and the Indemnitee shall execute and deliver any and all
instruments and documents and perform any and all other acts and deeds that the
Corporation deems reasonably necessary or advisable to secure such rights.
7. Witness Expenses. Upon an Indemnitee's written request, the
Corporation shall pay (in advance or otherwise) or reimburse any and all
expenses reasonably incurred by the Indemnitee in connection with his or her
appearance as a witness in any proceeding at a time when he has not been
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formally named a defendant or respondent to such a proceeding.
8. Contribution. If the indemnity provided for in this Article VII is
unavailable to an Indemnitee for any reason whatsoever, the Corporation, in lieu
of indemnifying the Indemnitee, shall contribute to the amount reasonably
incurred by or on behalf of the Indemnitee, whether for judgments, fines,
penalties, amounts incurred in settlement, or for expenses in connection with
any proceeding, no matter by whom brought, in such proportion as deemed fair and
reasonable, by the person or persons entitled to make the determination as to
whether the Indemnitee has met the requisite standard of conduct under the Texas
Business Corporation Act or other applicable law of the State of Texas, or by
the court before which such proceeding was brought, taking into account all of
the circumstances of such proceeding, in order to reflect (i) the relative
benefits received by the Corporation and the Indemnitee as a result of the event
or transaction giving cause to such proceeding; and (ii) the relative fault of
the Corporation (and its other directors, officers, employees, and agents) and
the Indemnitee in connection with such event or transaction.
9. Severability. If any provision of this Article VII shall be deemed
invalid or inoperative, or if a court of competent jurisdiction determines that
any of the provisions of this Article VII contravenes public policy, this
Article VII shall be construed so that the remaining provisions shall not be
affected, but shall remain in full force and effect, and any such provisions
that are invalid and inoperative or contravene public policy shall be deemed,
without further action or deed on the part of any person, to be modified,
amended, or limited, but only to the extent necessary to render the same valid
and enforceable, and the Corporation shall indemnify the Indemnitee as to
expenses, judgments, fines, and amounts incurred in settlement with respect to
any proceeding, no matter by whom brought, to the full extent permitted by any
applicable provision of this Article VII that shall not have been invalidated
and to the full extent otherwise permitted.
ARTICLE VIII
GENERAL PROVISIONS
1. Dividends. Dividends upon the outstanding shares of the Corporation,
subject to the provisions of the Act, the Articles of Incorporation and any
agreements or obligations of the Corporation, if any, may be declared by the
Board of Directors at any regular or special meeting. Dividends may be declared
and paid in cash, in property, or in shares of the Corporation, provided that
all such declarations and payments of dividends shall be in strict compliance
with all applicable laws and the Articles of Incorporation. The Board may fix in
advance a record date for the purpose of determining shareholders entitled to
receive payment of any dividend, such record date to be not more than fifty (50)
days prior to the payment of such dividend. In the absence of any action by the
Board of Directors, the date upon which the Board of Directors adopts the
resolution declaring such dividend shall be the record date.
2. Reserves. There may be created by resolution of the Board of
Directors out of the earned surplus of the Corporation such reserve or reserves
as the Board of Directors from time to time, in its absolute discretion, deems
proper to provide for contingencies, or to equalize dividends, or to repair or
maintain any property of the Corporation, or for such other proper purposes as
the Board of Directors shall deem beneficial to the Corporation, and the Board
of Directors may modify or abolish any reserve in the same manner in which it
was created.
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3. Fiscal Year. The fiscal year of the Corporation shall be fixed by
resolution of the Board of Directors.
4. Seal. The Corporation shall have a seal which may be used by causing
it or a facsimile thereof to be impressed on, affixed to, or in any manner
reproduced upon, instruments of any nature required to be executed by its proper
officers.
5. Annual Statement. The Board of Directors shall present at each
annual meeting and when requested to do so by shareholders holding at least one
third (1/3) of the outstanding shares, a full and clear statement of the
business and condition of the Corporation.
6. Checks. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the Board of Directors may designate from time to time.
7. Voting Securities Owned by Corporation. Voting securities in any
other corporation held by this Corporation shall be voted by the President or
any Vice President, unless the Board of Directors confers authority to vote with
respect thereto, which may be general or confined to specific investments, upon
some other person or officer. Any person authorized to vote securities shall
have the power to appoint proxies with the general power of substitution.
8. Resignation. Any director, officer, employee or agent of the
Corporation may resign by giving written notice to the President or the
Secretary. The resignation shall take effect at the time specified therein, or
immediately if no time is specified therein. Unless specified in such notice,
the acceptance of such resignation shall not be necessary to make it effective.
ARTICLE IX
AMENDMENTS TO BYLAWS
These Bylaws may be altered, amended, modified or repealed, or new
Bylaws may be adopted at any meeting of the Board of Directors at which a quorum
is present by the affirmative vote of a majority of the directors present at
such meeting.
CERTIFICATE
The foregoing Bylaws were executed, effective September 14, 1999.
/s/ Ronald A. Woessner
-----------------------------
Ronald A. Woessner, Secretary
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EXHIBIT 5.1 AND 23.1
OPINION OF RONALD A. WOESSNER
CONSENT OF RONALD A. WOESSNER
May 5, 2000
ZixIt Corporation
One Galleria Tower
13355 Noel Road, Suite 1555
Dallas, Texas 75240-6604
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
I have acted as General Counsel to ZixIt Corporation, a Texas
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of the resale of
3,055,557 shares (the "Shares") of the Company's common stock, $.01 par value
per share. The Shares are issuable pursuant to that certain Common Stock and
Warrant Purchase Agreement, dated April 11, 2000, between the Company and H.
Wayne Huizenga and his affiliates and assigns (the "Purchase Agreement") (as
amended by letter agreement dated April 27, 2000), and related Warrant
Certificates. The Shares are being registered pursuant to a registration
statement on Form S-3 to be filed with the Securities and Exchange Commission on
or about May 8, 2000 (the "Registration Statement").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act. In connection with this
opinion, I have examined such documents and records of the Company and such
statutes, regulations and other instruments and certificates as I have deemed
necessary or advisable for the purposes of this opinion. I have assumed that all
signatures on all documents presented to me are genuine, that all documents
submitted to me as originals are accurate and complete, and that all documents
submitted to me as copies are true and correct copies of the originals thereof.
I have also relied upon such other certifications of public officials, corporate
agents and officers of the Company, and such other certifications with respect
to the accuracy of material factual matters contained therein which were not
independently established.
Based on the foregoing, I am of the opinion that such Shares issuable
pursuant to the Purchase Agreement and Warrant Certificates, if and when such
Shares are issued and paid for as required therein, will be validly issued,
fully paid and nonassessable upon issuance, assuming the Company maintains an
adequate number of authorized but unissued shares of common stock available for
such issuance.
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I consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Ronald A. Woessner
Ronald A. Woessner
Vice President, General Counsel
and Secretary for ZixIt Corporation
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of ZixIt Corporation
for the registration of 3,055,557 shares of its common stock and to the
incorporation by reference therein of our report dated February 29, 2000, except
for the third paragraph of Note 10, as to which the date is March 23, 2000, with
respect to the consolidated financial statements of ZixIt Corporation included
in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
May 5, 2000
