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EXHIBIT 4.1
Execution Copy
THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION
REPRESENTATION AGREEMENT
AND
ZIXIT CORPORATION
STOCK OPTION AGREEMENT
This Representation Agreement and ZixIt Corporation Stock Option
Agreement (the "Agreement"), effective as of November 1, 1999, is made and
entered into by and between ZixIt Corporation, a Texas corporation ("ZixIt" or
"Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇, an individual ("▇▇▇▇▇▇"). Certain defined terms
used in this Agreement are set forth in Section 9.
WITNESSETH:
WHEREAS, ZixIt and ▇▇▇▇▇▇ desire to enter into a representation
engagement, and in connection therewith, ZixIt has agreed to issue this Option
(as defined in Section 2); and
WHEREAS, the parties hereto desire to evidence in writing the terms
and conditions of the representation engagement and the Option, which carries
the registration rights set forth in Exhibit A.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements contained herein, and as an inducement to ▇▇▇▇▇▇ to
promote the success of the business of ZixIt, the parties hereby agree as
follows:
1. Representation Engagement.
(a) Unless this Agreement is earlier terminated as provided
below, until August 31, 2004 (the "Representation Expiration Date"), ▇▇▇▇▇▇
will exclusively wear "information" designated by ZixIt on the front, a side of
the hat of ZixIt's choosing, and rear of his hat at (a) golf tournaments in
which he plays within North America and at all golf tournaments outside North
America that are televised in any part of the United States or (b) during any
television interviews in which he participates, if practical. ZixIt agrees that
the Woolrich name may be displayed on the other side of his hat so long as
▇▇▇▇▇▇'▇ current contractual obligations with Woolrich require him to do so. In
any event, the Woolrich name will be subordinate in size (approximately 1/3) to
the size of the Company "information." If ▇▇▇▇▇▇ reasonably determines that any
of said "information" is offensive or is harmful, ▇▇▇▇▇▇ may decline to wear
that information on his hat.
(b) To the extent that ▇▇▇▇▇▇ does not play professional golf for
more than six months due to injury or disability, the term of this Agreement
will be suspended for the period of
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the injury or disability that exceeds six months. Upon resumption of play, the
term of this Agreement will resume and the Representation Expiration Date, the
dates the Transfer restrictions lapse, and the Scheduled Option Expiration Date
(as defined below) will be appropriately adjusted to account for the period of
the injury or disability that exceeds six months.
2. Grant of Option; Expiration of Option. Effective as of the date first
set forth above (the "Award Date"), ZixIt hereby grants to ▇▇▇▇▇▇, upon the
terms set forth in this Agreement, a nonqualified option (the "Option"), to
acquire 100,000 shares of ZixIt Common Stock, $.01 par value per share (the
"Common Stock"). The exercise price of the Option is $ 32.55 per share, which
exercise price is subject to adjustment as provided in the next sentence. If as
of August 24, 2000, the Average Fair Market Value is less than $42.55, then the
exercise price for the Option will be adjusted to the Average Fair Market Value
minus $10, but in no event will the exercise price be adjusted to lower than $7
per share. The Option may be exercised from time-to-time with respect to any
shares of Common Stock as to which the Option has not been exercised until the
eighth anniversary of the Award Date (the "Scheduled Option Expiration Date"),
except as otherwise provided in this Agreement. Unless earlier terminated as
provided in this Agreement, the Option will expire with respect to all vested
shares as to which the Option has not been exercised on the eighth anniversary
of the Award Date. The Common Stock shares issuable or issued upon the exercise
of the Option are referred to herein as the "Option Shares."
3. Vesting and Sale of Option Shares. Subject to Section 4, the Option is
fully vested on the date hereof, and the Option may be exercised. The Option
Shares may not be Transferred by ▇▇▇▇▇▇ until the dates specified below:
Option Shares Date
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25,000 No Transfer Restrictions
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25,000 2/24/2001
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25,000 2/24/2002
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25,000 2/24/2003
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The Transfer restrictions will lapse upon the occurrence of a Change of
Control. Each of February 24, 2001, February 24, 2002, and February 24, 2003 is
hereinafter referred to as an "Installment Date" and the three dates
collectively are the "Installment Dates."
4. Termination.
(a) This Agreement may be terminated by ZixIt if ▇▇▇▇▇▇ breaches
his obligations under Section 1 of this Agreement and such breach is not cured
within 10 days of receipt of written notice from ZixIt. Upon termination, the
Option Shares that are not yet freely Transferable are automatically cancelled.
(b) ZixIt may terminate this Agreement by giving written notice
to ▇▇▇▇▇▇ between November 30, 2001 and January 1, 2002, if ▇▇▇▇▇▇ has not
secured his first U.S. PGA card by
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November 30, 2001. Upon termination, the Option Shares that would have become
freely Transferable on February 24, 2002 and February 24, 2003 are
automatically cancelled, unless ▇▇▇▇▇▇ has played in at least 14, in the
aggregate, official U.S. PGA events during 2000 and 2001, in which case only
the Option Shares that would have become freely Transferable on February 24,
2003, are automatically cancelled.
(c) ▇▇▇▇▇▇ may terminate his obligations under Section 1 of this
Agreement by giving written notice to ZixIt during the periods August 24, 2001
through September 3, 2001, August 24, 2002 through September 3, 2002, and
August 24, 2003 through September 3, 2003, if the "cumulative profit" is not at
least $2 Million, $3 Million and $5 Million, respectively, under the Option.
The "cumulative profit" is calculated by multiplying 100,000 times (the Average
Fair Market Value of one Common Stock share minus the option exercise price).
In the event that a Sale of ZixIt occurs, the "cumulative profit" will be
"fixed," and will be calculated by multiplying 100,000 times (the Sale price
per Common Stock share minus the option exercise price). The "fixed" cumulative
profit will be used thereafter for purposes of determining ▇▇▇▇▇▇'▇ termination
rights as stated in this Subsection 4(c). Upon termination of his obligations
under Section 1 of this Agreement as provided in this Subsection 4(c), the
Option Shares set forth in the table below are automatically cancelled:
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Termination Year Option Shares Cancelled
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2001 February 2002 and 2003 tranche
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2002 February 2003 tranche
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2003 None
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(d) If ▇▇▇▇▇▇ dies prior to February 24, 2003, the Option Shares
set forth in the table below are automatically cancelled:
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Date of Death Option Shares Cancelled
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Before 2/24/2001 February 2001, 2002, and 2003 tranches
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2/24/2001 to 2/24/2002 February 2002 and 2003 tranches
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2/24/2002 to 2/24/2003 February 2003 tranche
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In the event of ▇▇▇▇▇▇'▇ death, ▇▇▇▇▇▇'▇ estate, heirs, or beneficiaries, as
the case may be, will have one year from the date of death to exercise this
Option as to the un-cancelled, and theretofore, unexercised Option Shares.
(e) At ZixIt's election, this Agreement will terminate if ▇▇▇▇▇▇
(i) voluntarily seeks, consents to, or acquiesces in the benefit or benefits of
the Bankruptcy Code of the United States of America or any other applicable
liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, suspension of payments, or similar
debtor relief law from time-to-time in effect affecting the rights of creditors
generally ("Debtor Relief Law") or (ii) becomes a party to (or is made the
subject of) any proceeding provided for by any Debtor Relief Law, other than as
a creditor or claimant (unless, in the event such proceeding is
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involuntary, the petition instituting same is dismissed within 60 days of the
filing of same). Upon termination as provided in this Subsection 4(e), those
Option Shares set forth in the table below are automatically cancelled:
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Date of Termination Option Shares Cancelled
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Before 2/24/2001 February 2001, 2002, and 2003 tranches
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2/24/2001 to 2/24/2002 February 2002 and 2003 tranches
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2/24/2002 to 2/24/2003 February 2003 tranche
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(f) If ▇▇▇▇▇▇ has already exercised the Option with respect to
Option Shares that are thereafter cancelled as permitted in this Agreement,
then ▇▇▇▇▇▇ (and his estate, heirs, or beneficiaries, as the case may be) shall
surrender the stock certificate(s) covering the cancelled Option Shares to
ZixIt so that the stock certificate(s) can be cancelled, and, if appropriate, a
new certificate re-issued for any un-cancelled Option Shares represented by the
cancelled certificate(s). When ▇▇▇▇▇▇ surrenders the stock certificate(s) as
aforesaid, ZixIt will return to ▇▇▇▇▇▇ the exercise price he paid to ZixIt with
respect to the Option Shares that have been cancelled.
5. Exercise; Payment of Exercise Price.
(a) To exercise the Option, ▇▇▇▇▇▇ shall provide written notice
(the "ZixIt Exercise Notice") to ZixIt at its principal executive office to the
attention of ZixIt's chief financial officer. The notice must: (i) state the
number of shares of Common Stock being purchased; (ii) be signed by ▇▇▇▇▇▇; and
(iii) be accompanied by payment of the aggregate exercise price for all shares
of Common Stock being purchased (unless ▇▇▇▇▇▇ has provided for payment through
a broker-dealer or other means as permitted under this Agreement). The Option
may be exercised with respect to vested and exercisable shares of Common Stock
from time-to-time (i.e., there is no obligation to exercise all vested and
exercisable shares at one time, but the Option may not be exercised at any one
time with respect to less than 1,000 shares).
(b) Payment of Exercise Price. At the time of exercise, ▇▇▇▇▇▇
shall pay to ZixIt the exercise price per share of Common Stock times the
number of shares of Common Stock as to which the Option is being exercised.
▇▇▇▇▇▇ shall make such payment by delivering cash, certified check, or wire
transfer, or other payment mechanism mutually agreeable to ZixIt and ▇▇▇▇▇▇. If
the Option is exercised in full, ▇▇▇▇▇▇ shall surrender this Agreement to ZixIt
for cancellation. If the Option is exercised in part, ▇▇▇▇▇▇ shall surrender
this Agreement to ZixIt so that ZixIt may make appropriate notation hereon.
(c) Subject to Section 8, ZixIt shall promptly issue and deliver
a certificate representing the number of shares of Common Stock as to which the
Option has been exercised after ZixIt receives a notice of exercise and upon
receipt by ZixIt of the aggregate exercise price; provided, that, ZixIt shall
have no obligation to deliver a certificate for any shares for which the
Transfer restrictions have not lapsed. If the shares of Common Stock to be
issued upon the exercise of the Option are covered by an effective registration
statement (see Exhibit A attached
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hereto) under the Securities Act of 1933, as amended (the "Act"), the Option
may be exercised by a broker-dealer acting on behalf of ▇▇▇▇▇▇ in accordance
with ZixIt's customary procedures and applicable law for a "cashless" option
exercise.
6. Preservation of Rights. The number of shares of Common Stock subject
to the Option and the exercise price therefor set forth in Section 2 shall be
subject to appropriate adjustment, reasonably satisfactory to ▇▇▇▇▇▇ and ZixIt,
to preserve the relative rights of ▇▇▇▇▇▇ and ZixIt under this Agreement in the
event of any change or exchange of Common Stock for a different number or kind
of securities, any of which results from one or more stock splits, reverse
stock splits, or stock dividends. If a Change of Control with respect to ZixIt
occurs, and, as a part of such Change of Control, shares of stock, other
securities, cash or property shall be issuable or deliverable in exchange for
Common Stock, then ▇▇▇▇▇▇ shall be entitled to purchase or receive (in lieu of
the shares of Common Stock that ▇▇▇▇▇▇ would otherwise be entitled to purchase
or receive hereunder), the number of shares of stock, other securities, cash or
property to which that number of shares of Common Stock would have been
entitled in connection with such Change of Control (and, at an aggregate
exercise price equal to the aggregate exercise price hereunder that would have
been payable if that number of shares of Common Stock had been purchased on the
exercise of the Option immediately before the consummation of the Change of
Control).
7. Who May Exercise. Without ZixIt's consent, the Option shall be
exercisable only by ▇▇▇▇▇▇ (or, in the event of ▇▇▇▇▇▇'▇ death, his heirs,
estate, or beneficiaries, as applicable), and ▇▇▇▇▇▇ may not Transfer the
Option or the rights and privileges pertaining thereto. The Option is not
liable for or subject to, in whole or in part, the debts, contracts,
liabilities or torts of ▇▇▇▇▇▇, nor shall it be subject to garnishment,
attachment, execution, levy or other legal or equitable process.
8. Certain Legal Restrictions; Legend. Except as provided in Exhibit A,
ZixIt shall not have any obligation to ▇▇▇▇▇▇, express or implied, to list,
register or otherwise qualify any of ▇▇▇▇▇▇'▇ shares of Common Stock. ZixIt
shall not be obligated to sell or issue any shares of Common Stock upon the
exercise of the Option unless, in the opinion of counsel for ZixIt, the
issuance and delivery of such shares shall comply with all relevant provisions
of law and other legal requirements including, without limitation, any
applicable federal or state securities laws and the requirements of any stock
exchange or inter-dealer quotation system on which shares of the Common Stock
may then be listed or quoted. If ▇▇▇▇▇▇ desires to exercise the Option with
respect to shares that have not been registered under the Act and applicable
state securities laws, ▇▇▇▇▇▇ shall notify ZixIt of its desire to do so, thus
affording ZixIt the opportunity to analyze the securities laws implications of
such exercise. As a condition to the exercise of the Option or the issuance by
ZixIt of any shares of Common Stock to ▇▇▇▇▇▇, ZixIt may require ▇▇▇▇▇▇ to make
such reasonable representations and warranties, covenants and agreements as may
be necessary to assure compliance with applicable federal and state securities
laws. The shares of Common Stock issued upon the exercise of the Option may not
be transferred except in accordance with applicable federal or state securities
laws. At ZixIt's election, if the shares of stock issuable upon the exercise of
the Option have not been registered under the Act and applicable state
securities laws, the certificate evidencing the Option Shares issued to ▇▇▇▇▇▇
may be legended, as appropriate, as follows:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY
NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE REQUIREMENTS OF
SUCH ACT AND THE APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION.
Furthermore, if any Option Shares are issued prior to the time that they are
freely Transferable, at ZixIt's election, the certificate evidencing these
Option Shares may be legended, as appropriate, to reflect the transfer
restrictions set forth herein and stock surrender obligation (set forth in
Subsection 4(f)).
9. Definitions.
The following terms as used in this Agreement shall have the stated
meanings:
(a) Acquiring Person. An "Acquiring Person" shall mean any Person
(including any "person" as such term is used in Sections 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) that,
together with all Affiliates and Associates of such Person, is the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of 10% or more
of the outstanding Common Stock. The term "Acquiring Person" shall not include
ZixIt, any subsidiary of ZixIt, any employee benefit plan of ZixIt or
subsidiary of ZixIt, any Person to the extent such Person is holding Common
Stock for or pursuant to the terms of any such plan, or ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇
(current Company officer and director), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (current
Company director) or any Affiliate or Associate or spouse, sibling or parent
("family member") of Messrs. Kuehne, Cook, or ▇▇▇▇▇▇▇. For the purposes of this
Agreement, a Person who becomes an Acquiring Person by acquiring beneficial
ownership of 10% or more of the Common Stock at any time after the date of this
Agreement shall continue to be an Acquiring Person whether or not such Person
continues to be the beneficial owner of 10% or more of the outstanding Common
Stock.
(b) Affiliate. "Affiliate" shall mean a person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the person specified.
(c) Associate. "Associate" when used to indicate a relationship
with any person shall mean:
(i) a corporation or organization (other than ZixIt or a
majority-owned subsidiary of ZixIt) of which such person is an officer
or partner or is, directly or indirectly, the beneficial owner of 10
percent or more of any class of equity securities;
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(ii) any trust or other estate in which such person has a
substantial beneficial interest or as to which such person serves as
trustee or in a similar capacity; and
(iii) any relative or spouse of such person, or any relative
of such spouse, who has the same home as such person.
(d) Average Fair Market Value. "Average Fair Market Value" shall
mean the Fair Market Value for the 15 trading days immediately prior to the
date in question.
(e) Change of Control. "Change of Control" shall mean the
occurrence of any of the following events:
(i) Any Sale of ZixIt; or
(ii) Any Acquiring Person has become the beneficial owner of
securities which when added to any securities already owned by such
person would represent in the aggregate 25% or more of the then
outstanding securities of ZixIt that are entitled to vote to elect any
class of directors;
(iii) If at any time, the Continuing Directors then serving
on the Board of Directors of ZixIt cease for any reason to constitute
at least a majority thereof; or
(iv) Any occurrence that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A or any
successor rule or regulation promulgated under the Exchange Act.
(f) Continuing Director. A "Continuing Director" shall mean a
director of ZixIt who (i) is not an Acquiring Person or an Affiliate or
Associate thereof, or a representative of an Acquiring Person or nominated for
election by an Acquiring Person, and (ii) was either a member of the Board of
Directors of ZixIt on the date of this Agreement or subsequently became a
director of ZixIt and whose initial election or initial nomination for election
by ZixIt's shareholders was approved by a majority of the Continuing Directors
then on the Board of Directors of ZixIt.
(g) Fair Market Value. "Fair Market Value" shall mean, at any
date of determination, the closing sale price (or average of the quoted closing
bid and asked prices if there is no closing sale price reported) of the Common
Stock as reported by The Nasdaq Stock Market or by the principal national stock
exchange on which the Common Stock is then listed on such date.
(h) Person. "Person" shall mean an individual, corporation,
partnership, association, joint-stock company, trust, incorporated organization
or government or political subdivision thereof and any other entity. A Person,
together with that Person's Affiliates and Associates, and any Persons acting
as a partnership, limited partnership, joint venture, association, syndicate or
other group (whether or not formally organized), or otherwise acting jointly or
in concert or in a coordinated or consciously parallel manner (whether or not
pursuant to any express agreement),
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for the purpose of acquiring, holding, voting or disposing of securities of
ZixIt with that Person, shall be deemed a single "Person."
(i) Sale. A "Sale" occurs with respect to ZixIt if it engages in
a merger, consolidation, recapitalization, reorganization, or sale, lease,
license, transfer, or other effective disposition of all or substantially all
of ZixIt's assets and ZixIt or its shareholders or Affiliates immediately
before such transaction beneficially own, immediately after or as a result of
such transaction, equity securities of the surviving or acquiring corporation
or such corporation's parent corporation possessing less than fifty one percent
(51%) of the voting power of the surviving or acquiring Person or such Person's
parent corporation, provided that a Sale shall not be deemed to occur upon any
public offering or series of such offerings of securities of ZixIt that results
in any such change in beneficial ownership.
(j) Transfer. "Transfer" (or any derivative thereof) means a
direct or indirect sale, transfer, pledge, encumbrance or hypothecation.
10. Registration Rights. ▇▇▇▇▇▇ shall have the registration rights set
forth in Exhibit A attached hereto.
11. Arbitration. The parties agree to the resolution by binding
arbitration of all claims, demands, causes of action, disputes, controversies,
or other matters in question ("claims") arising under this Agreement, whether
sounding in contract, tort, or otherwise and whether provided by statute or
common law, other than claims seeking injunctive or other equitable relief. The
claims shall be submitted to arbitration and finally settled under the
applicable rules of the American Arbitration Association ("AAA") in effect at
the time the written notice of the claim is received. An arbitrator shall be
selected in the manner provided for in such rules of the AAA, except that the
parties agree that the arbitrator shall be an attorney licensed in the State of
Texas. If any party refuses to honor its obligations under this agreement to
arbitrate, the other party may compel arbitration in either federal or state
court. The arbitrator will have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability, or formation of
this agreement to arbitrate, including, but not limited to, any claim that all
or part of this Agreement is void or voidable and any claim that an issue is
not subject to arbitration. The arbitration will be held in Dallas County,
Texas. The arbitrator shall issue a written decision that identifies the
factual findings and principles of law upon which any award is based. The award
and findings of such arbitrator shall be conclusive and binding upon the
parties, and judgment upon such award may be entered in any court of competent
jurisdiction. Any and all of the arbitrator's orders, decisions, and awards may
be enforceable in, and judgment upon any award rendered by the arbitrator may
be confirmed and entered by, any federal or state court having jurisdiction.
Each party shall pay all costs and expenses of its advisors. The costs and
expenses of the arbitration proceedings will be paid by the non-prevailing
party or as the arbitrator otherwise determines. Discovery will be permitted to
the extent directed by the arbitrator. EACH PARTY UNDERSTANDS THAT BY AGREEING
TO SUBMIT CLAIMS TO ARBITRATION IT GIVES UP THE RIGHT TO SEEK A TRIAL BY COURT
OR JURY AND THE RIGHT TO AN APPEAL FROM ANY ERRORS OF THE COURT AND FORGOES ANY
AND ALL RELATED RIGHTS IT MAY OTHERWISE HAVE UNDER FEDERAL AND STATE LAWS.
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12. Miscellaneous.
(a) The granting of the Option herein shall impose no obligation
upon ▇▇▇▇▇▇ to exercise the Option or any part thereof.
(b) Neither ▇▇▇▇▇▇ nor any person claiming under or through
▇▇▇▇▇▇ shall be or shall have any of the rights or privileges of a shareholder
of ZixIt in respect of any of the shares issuable upon the exercise of the
Option unless and until certificates representing such shares shall have been
issued.
(c) Any notice to be given to ZixIt under the terms of this
Agreement or any delivery of the Option herein to ZixIt shall be in writing,
addressed to ZixIt at its principal executive offices, Attn: Chief Financial
Officer; and any notice to be given to ▇▇▇▇▇▇ shall be addressed to ▇▇▇▇▇▇ at
the address set forth below. A party may specify a different address for
receiving notice by giving written notice thereof to the other party. Any such
notice shall be deemed to have been duly given upon receipt.
(d) Subject to Section 7, this Agreement shall be binding upon
and inure to the benefit of the assignees, representatives, executors,
successors or beneficiaries of the parties hereto.
(e) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE UNITED
STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(f) If any provision of this Agreement is declared or found to be
illegal, unenforceable or void, in whole or in part, then the parties shall be
relieved of all obligations arising under such provision, but only to the
extent that it is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(g) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way
shall define, limit, extend or describe the scope or intent of any provisions
of this Agreement.
(h) The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement.
(i) This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
written and prior or contemporaneous oral agreements and understandings
pertaining hereto, including without limitation, the "Agreement" between the
parties, executed on August 24, 1999.
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(j) No failure by any party to insist upon the strict performance
of any covenant, duty, agreement or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof shall constitute a waiver
of any such breach or any other covenant, duty, agreement or condition.
(k) This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on the parties hereto,
notwithstanding that all such parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the dates set forth below, to be effective as of the date first above written.
COMPANY:
ZIXIT CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: Vice President
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Date: 10-29-99
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▇▇▇▇▇▇:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
Address: c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
President, Cornerstone Sports
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Date: 10-29-99
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EXHIBIT A
REGISTRATION RIGHTS
1. Certain Definitions. As used herein, the term "Shares" shall
mean the shares of Common Stock issuable upon the exercise of the Option.
2. Registration.
(a) Upon its receipt of a written notice from ▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"),
ZixIt shall prepare and file with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (or such successor or other form as
the SEC may stipulate or require) under the Securities Act of 1933, as amended
(the "Act") covering any Shares that have become Transferable prior to the date
of the notice and have not been previously registered.
(b) Furthermore, upon its receipt of a written notice from ▇▇▇▇▇▇
(given no earlier than 30 days prior to the upcoming Installment Date), ZixIt
shall prepare and file with the SEC a registration statement on Form S-3 (or
such successor or other form as the SEC may stipulate or require) under the Act
covering the 25,000 Shares that become Transferable under the Option as of the
upcoming Installment Date in question and, if applicable, Shares that
previously became Transferable and that have not previously been registered.
(c) ZixIt shall use its commercially reasonable efforts to cause such
registration statement to become effective as promptly as practicable after
receipt of the written notice. ZixIt shall also file such post-effective
amendments to such registration statement in order for it to remain effective
without lapse until the earliest of (i) 90 days following the date the
registration statement is declared effective, (ii) all the Shares so registered
have been sold, or (iii) the first date on which ▇▇▇▇▇▇ is permitted to sell
all Shares then held by him (and that are sought to be sold) without
restriction within 90 days pursuant to Rule 144 under the Act. If, during the
effectiveness of the registration statement, ▇▇▇▇▇▇ determines that he no
longer desires to sell any (or further) Shares at that time, ▇▇▇▇▇▇ will so
advise ZixIt so that ZixIt can withdraw the registration statement. ▇▇▇▇▇▇
shall be entitled to make four registration requests under this Section 2.
(d) ZixIt may defer the filing (but not the preparation) of the
registration statement for a period of up to 120 days if (a) at the time ZixIt
or any of its subsidiaries is engaged in material confidential negotiations or
other material confidential business activities, disclosure of which would be
required in such registration statement (but would not be required if such
registration statement were not filed), and the Board of Directors of ZixIt
determines in good faith that such disclosure would be materially detrimental
to ZixIt and its shareholders or would have a material adverse effect on any
such confidential negotiations or other confidential business activities; or
(b) at the time ZixIt is engaged in business activities pertaining to an
underwritten public offering of ZixIt's securities and the underwriters have
advised ZixIt that the filing of the registration statement would have a
material adverse effect on its ability to consummate such offering. A deferral
of the filing of the registration statement will be lifted, and the
registration statement shall be filed as soon
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as practicable thereafter forthwith, if the negotiations or other activities
are completed, disclosed or terminated or the underwritten public offering is
completed, terminated or postponed. In order to defer the filing of a
registration statement, ZixIt will deliver to ▇▇▇▇▇▇ a certificate signed by a
senior executive officer of ZixIt setting forth a statement of the reason for
such deferral and an approximation of the anticipated delay, which information
▇▇▇▇▇▇ shall treat as confidential. Moreover, ZixIt shall have no obligation to
register any Shares under this Section 2 if ▇▇▇▇▇▇ is permitted to sell all
Shares sought by him to be registered without restriction within 90 days
pursuant to Rule 144 under the Act.
3. Registration Procedures. If, and whenever, ZixIt is required
by Section 2 to effect the registration of Shares under the Securities Act,
ZixIt will as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such securities, and use commercially reasonable efforts to
cause such registration statement to become and remain effective for the period
set forth in Section 2 (the "Effective Period"), and subject to the proviso in
Subsection 3(d), use commercially reasonable efforts to obtain all other
approvals, covenants, exemptions or authorizations from such governmental
agencies or authorities as may be necessary to enable ▇▇▇▇▇▇ to consummate the
disposition of such Shares;
(b) prepare and file with the SEC such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for the
Effective Period as may be reasonably necessary to effect the sale of such
securities;
(c) furnish to ▇▇▇▇▇▇ and his agents, such reasonable number
of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as ▇▇▇▇▇▇ and such agents may reasonably
request in order to facilitate the public offering of such securities;
(d) use commercially reasonable efforts to register or
qualify the Shares covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as ▇▇▇▇▇▇ may reasonably
request in writing within 20 days following the original filing of such
registration statement; provided that, ZixIt shall not for any purpose be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction wherein it is not so
qualified or subject itself to taxation in a jurisdiction where it had not
previously been subject to taxation, or take any other action that would
subject ZixIt to service of process in a lawsuit other than one arising out of
the registration of the Shares;
(e) notify ▇▇▇▇▇▇, promptly after it shall receive notice
thereof, of the time when such registration statement has become effective or a
supplement to any prospectus forming a part of such registration statement has
been filed;
(f) notify ▇▇▇▇▇▇ promptly of any request by the SEC for the
amending or supplementing of such registration statement or prospectus or for
additional information;
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(g) prepare and file with the SEC, promptly upon the request
of ▇▇▇▇▇▇, any amendments or supplements to such registration statement or
prospectus which, in the opinion of counsel for ▇▇▇▇▇▇ (and concurred in by
counsel for ZixIt), is required under the Act or the rules and regulations
thereunder in connection with the distribution of Shares by ▇▇▇▇▇▇;
(h) prepare and promptly file with the SEC and promptly
notify ▇▇▇▇▇▇ of the filing of such amendment or supplement to such
registration statement or prospectus as may be necessary to correct any
statements or omissions if, at any time when a prospectus relating to such
securities is required to be delivered under the Act, any event shall have
occurred as the result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading;
(i) advise ▇▇▇▇▇▇, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC
suspending the effectiveness of such registration statement or the initiation
or threatening of any proceeding for that purpose and promptly use its
commercially reasonable efforts to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order should be issued;
(j) cause all such Shares to be listed on each securities
exchange on which similar securities issued by ZixIt are then listed not later
than the date required by such securities exchange, or, if similar securities
are reported on The Nasdaq Stock Market or quoted in the over-the-counter
market, cause all such Shares to be reported on The Nasdaq Stock Market or
quoted in the over-the-counter market;
(k) provide a transfer agent and registrar for all such
Shares not later than the effective date of such registration statement; and
(l) make available for reasonable inspection by ▇▇▇▇▇▇ and
any accountant or other agent retained by ▇▇▇▇▇▇ all financial and other
records of ZixIt reasonably requested, and cause ZixIt's officers, directors,
employees and independent accountants to supply information reasonably
requested by ▇▇▇▇▇▇ or any such accountant or other agent in connection with
such registration statement; provided that, ZixIt shall be under no obligation
to disclose proprietary or privileged non-public information that, in the
opinion of ZixIt's counsel, is not required to be disclosed in such
registration statement or in any prospectus in connection therewith.
4. Expenses. All fees, costs and expenses incidental to such
registration and public offering of the Shares in connection therewith shall be
shared equally by the parties; provided that, ▇▇▇▇▇▇'▇ share of such expenses
shall not exceed $5,000 per registration statement, and futher provided that
▇▇▇▇▇▇ shall be fully responsible for any commissions and transfer taxes in
respect of the sale of the Shares.
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5. Indemnification.
(a) ZixIt will indemnify and hold harmless ▇▇▇▇▇▇ and his
agents and any person controlling ▇▇▇▇▇▇ from and against, and will reimburse
such persons with respect to, any and all loss, damage, liability, cost and
expense to which such persons may become subject under the Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in such registration statement, any prospectus contained therein or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
ZixIt will not be liable in any such case to the extent that any such loss,
damage, liability, cost or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made
in conformity with information furnished by or on behalf of ▇▇▇▇▇▇ in writing
specifically for use in the preparation thereof. ZixIt will not be subject to
any liability for any settlement made without its consent, which consent shall
not be unreasonably withheld.
(b) ▇▇▇▇▇▇ will indemnify and hold harmless ZixIt, its
directors, officers, employees, and other agents and any person controlling
ZixIt from and against, and will reimburse such persons with respect to, any
and all loss, damage, liability, cost and expense to which such persons may
become subject under the Act or otherwise, insofar as such losses, damages,
liabilities, costs or expenses are caused by any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
any prospectus contained therein or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was so made in reliance upon and in conformity with written information
furnished by or on behalf of ▇▇▇▇▇▇ specifically for use in the preparation
thereof. ▇▇▇▇▇▇ will not be subject to any liability for any settlement made
without his consent, which consent shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party, pursuant
to the provisions of Subsection (a) or (b) of this Section 5 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
Subsection (a) or (b), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party,
except to the extent that such omission materially and adversely affects the
indemnifying party's ability to defend against or compromise such claim. In
case such action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall
have the right to participate in, and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided,
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however, that if the defendants in any action include both the indemnified
party and the indemnifying party and there is a conflict of interest that would
prevent counsel for the indemnifying party from also representing the
indemnified party, the indemnified party or parties shall have the right to
select separate counsel to participate in the defense of such action on behalf
of such indemnified party or parties. After notice from the indemnifying party
to an indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of said Subsection (a) or (b) for any legal or other expense
subsequently incurred by such indemnified party in connection with the defense
thereof other than out-of-pocket costs of investigation, unless (i) the
indemnified party shall have employed counsel in accordance with the provisions
of the preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the notice of the commencement
of the action or (iii) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
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