<PAGE> 1
As filed with the Securities and Exchange Commission on July 18, 1997
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CYBERCASH, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation or organization)
54-1725021
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(I.R.S. employer identification no.)
2100 RESTON PARKWAY, THIRD FLOOR, RESTON, VA 20191
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(Address of principal executive offices) (Zip code)
CyberCash, Inc.
1995 Stock Option Plan, as amended
CyberCash, Inc.
Employee Stock Purchase Plan
CyberCash, Inc.
1995 Non-Employee Directors' Stock Option Plan, as amended
WILLIAM N. MELTON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
2100 RESTON PARKWAY, THIRD FLOOR
RESTON, VA 20191
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(Name and address of agent for service)
(703) 620-4200
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(Telephone number, including area code, of agent for service)
Copy to:
MICHAEL J. SILVER
HOGAN & HARTSON L.L.P.
111 SOUTH CALVERT STREET
BALTIMORE, MARYLAND 21202
(410) 659-2741
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
Title of securities Amount to be Proposed Proposed maximum Amount of
to be registered registered(1) maximum offering aggregate offering registration fee(1)
price per share(1) price(1)
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<S> <C> <C> <C> <C>
Stock Options and 2,000,000 $ 13.75 $ 27,500,000 $ 8,334
Common Stock, par
value $.001 per share
======================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h)(1), the proposed maximum offering price
per share, proposed maximum aggregate offering price and the amount of the
registration fee is based on the avg. of the high and low sale prices
per share of CyberCash, Inc. Common Stock on The Nasdaq Stock Market's National
Market on July 16, 1997 with respect to the 1,500,000 shares issuable under
the 1995 Stock Option Plan, the 455,000 shares issuable pursuant to the
Employee Stock Purchase Plan and 45,000 shares issuable pursuant to the 1995
Non-Employee Directors' Stock Option Plan.
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REGISTRATION OF ADDITIONAL SECURITIES
In accordance with Section E of the General Instructions to Form S-8,
the contents of Form S-8, Registration No. 333-1872, filed by CyberCash, Inc.
(the "Registrant") with the Securities and Exchange Commission on March 1,
1996, are incorporated herein by reference for the registration of 1,500,000
shares of additional securities issuable pursuant to the CyberCash, Inc. 1995
Stock Option Plan, as amended, 455,000 shares of additional securities issuable
pursuant to the CyberCash, Inc. Employee Stock Purchase Plan and 45,000 shares
of additional securities issued pursuant to the CyberCash, Inc. 1995
Non-Employee Directors' Stock Option Plan, as amended.
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REGISTRATION OF NEW SECURITIES
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to each person eligible to participate in the CyberCash, Inc.
1995 Stock Option Plan, as amended, Employee Stock Purchase Plan and 1995
Non-Employee Directors' Stock Option Plan, as amended, as specified by Rule
428(b)(1). In accordance with the instructions to Part I of Form S-8, such
documents will not be filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this registration
statement the following documents:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) The Registrant's current report on Form 10-Q filed for the
quarter ended March 31, 1997;
(c) The Registrant's proxy statement filed on May 28, 1997;
(d) All reports filed with the Securities and Exchange Commission
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), since December
31, 1996; and
(e) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed
with the Securities and Exchange Commission on December 21,
1995 and registering shares of Common Stock pursuant to
Section 12(g) of the Exchange Act.
In addition, all documents filed by the Registrant subsequent to the
date hereof pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange
Act, subsequent to the filing of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be part of hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such prior statement. The documents required to be so modified or
superseded shall not be deemed to constitute a part of this Registration
Statement, except as so modified or superseded.
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To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Registrant's Common Stock is incorporated by
reference into this Registration Statement under Item 3.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL")
authorizes a court to award, or a corporation's board of directors to grant
indemnity to directors and officers under certain circumstances for liabilities
incurred in connection with their activities in such capacities (including
reimbursement for expenses incurred). The Registrant's Amended and Restated
Certificate of Incorporation provides that no director of the Registrant will
be personally liable to the Registrant or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Registrant or to its
stockholders, (ii) for acts or omissions not made in good faith or with
involved intentional misconduct or a knowing violation of the law, (iii) under
Section 174 of the DGCL, or (iv) for any transactions from which the director
derives an improper personal benefit. In addition, the Registrant's Amended and
Restated Bylaws provide that any director or officer who was or is a party or
is threatened to be made a party to any action or proceeding by reason of his
or her services to the Registrant will be indemnified to the fullest extent
permitted by the DGCL.
The Registrant has entered into agreements with each of its executive
officers and directors under which the Registrant has agreed to indemnify each
of them against expenses and losses incurred for claims brought against them by
reason of their being an officer or director of the Registrant. There is no
pending litigation or proceeding involving a director or officer of the
Registrant as to which indemnification is being sought, nor is the Registrant
aware of any pending or threatened litigation that may result in claims for
indemnification by any director or executive officer.
Under the form of Underwriting Agreement filed as Exhibit 1.1 to the
Registration Statement on Form S-1 (Reg. No. 33-80725), initially filed on
December 21, 1995, and as amended through the date hereof, the Underwriters are
obligated under certain circumstances, to indemnify directors and officers of
the Registrant against certain liabilities including liabilities under the
Securities Act of 1933, as amended.
The Registrant has purchased a general liability insurance policy
which covers certain liabilities of directors and officers of the Registrant
arising out of claims based on acts or omissions in their capacity as directors
or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1* Specimen Stock Certificate
5.1 Legal Opinion
10.1* Form of Indemnity Agreement
10.2* 1995 Stock Option Plan
10.3* Form of Incentive Stock Option
10.4* Form of Performance Stock Option
10.5* Form of Non-Statutory Stock Option
10.6* Employee Stock Purchase Plan
10.7* 1995 Non-Employee Directors' Stock Option Plan
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Russell B. Stevenson, Jr. (contained in Exhibit 5.1)
24.1 Power of Attorney is contained on the signature page
</TABLE>
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* Filed as an exhibit to the Registration Statement on Form S-1
(No. 33-80725), as amended through the date hereof and incorporated
by reference herein.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act
of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement.
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Provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or
Form S-8, and the information required to be
included in a post-effective amendment by
those paragraphs is contained in periodic
reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are
incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of the 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the County of Fairfax, State of Virginia, on this 18th
day of July, 1997.
CYBERCASH, INC.
By: /s/ WILLIAM N. MELTON
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William N. Melton
President and Chief Executive Officer
We, the undersigned officers and directors of CyberCash, Inc., hereby
severally and individually constitute and appoint William N. Melton and Russell
B. Stevenson, Jr., and each of them, the true and lawful attorneys and agents
of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8, and all instruments necessary or advisable
in connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have power to act with or
without the other and to have full power and authority to do and perform in the
name and on behalf of each of the undersigned every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes
as any of the undersigned might or could do in person, and we hereby ratify and
confirm our signatures as they may be signed by our said attorneys and agents
and each of them to any and all such amendment and amendments.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ William N. Melton President, Chief Executive Officer & July 18, 1997
- -------------------------------------------- Director (Principal Executive Officer)
William N. Melton
/s/ James J. Condon Principal Financial Officer and July 18, 1997
- -------------------------------------------- Principal Accounting Officer
James J. Condon
/s/ Daniel C. Lynch Chairman of the Board of Directors July 18, 1997
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Daniel C. Lynch
/s/ Edward R. Kozel Director July 18, 1997
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Edward R. Kozel
/s/ Michael Rothschild Director July 18, 1997
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Michael Rothschild
/s/ Garen K. Staglin Director July 18, 1997
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Garen K. Staglin
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
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<S> <C> <C>
4.1* Specimen Stock Certificate
5.1 Legal Opinion
10.1* Form of Indemnity Agreement
10.2* 1995 Stock Option Plan
10.3* Form of Incentive Stock Option
10.4* Form of Performance Stock Option
10.5* Form of Non-Statutory Stock Option
10.6* Employee Stock Purchase Plan
10.7* 1995 Non-Employee Directors' Stock Option Plan
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Russell B. Stevenson (contained in Exhibit 5.1)
24.1 Power of Attorney is contained on the signature page
</TABLE>
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* Filed as an exhibit to the Registration Statement on Form S-1 (No. 33-80725),
as amended through the date hereof and incorporated by reference herein.
<PAGE> 1
Board of Directors
CyberCash, Inc.
2100 Reston Parkway, Third Floor
Reston, Virginia 20191
Ladies and Gentlemen:
I am general counsel of CyberCash, Inc., a Delaware corporation (the
"COMPANY"), and am rendering this opinion in connection with its registration
statement on Form S-8, as amended (the "REGISTRATION STATEMENT") filed with the
Securities and Exchange Commission relating to the proposed public offering of
up to 2,000,000 shares of the Company's common stock, par value $.001 per
share, all of which shares (the "SHARES") are to be sold by the Company. This
opinion letter is furnished to you at your request to enable you to fulfill the
requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. Section
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, I have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
2. The Certificate of Incorporation of the Company, as certified
by the Secretary of the State of the State of Delaware on July
18, 1997 and by the Secretary of the Company on the date
hereof as then being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Secretary of
the Company on the date hereof as then being complete,
accurate and in effect.
4. CyberCash, Inc. 1995 Stock Option Plan, as amended, CyberCash,
Inc. Employee Stock Purchase Plan, and CyberCash, Inc. 1995
Non-Employeee Directors' Stock Option Plan, as amended
(collectively the "Plans").
5. Resolutions of the Board of Directors of the Company adopted
on April 25, 1997, April 6, 1997 and December 20, 1995, as
certified by the Secretary of the Company on the date hereof
as then being complete, accurate and in effect, relating to
the adoption
<PAGE> 2
of the Plans and the issuance and sale of the Shares and
arrangements in connection therewith.
In our examination of the aforesaid documents, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of all documents submitted to us, and
the conformity with the original documents of all documents submitted to us as
certified, telecopied, photostatic, or reproduced copies. This opinion letter
is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the
General Corporation Law of the State of Delaware. I express no opinion herein
as to any other laws, statutes, regulations, or ordinances.
Based upon, subject to and limited by the foregoing, I am of the
opinion that following (i) effectiveness of the Registration Statement, (ii)
issuance of the Shares and (iii receipt by the Company of the consideration for
the Shares specified in the Plans and related stock option agreements , the
Shares will be validly issued, fully paid and nonassessable under the General
Corporation Law of the State of Delaware.
I assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the filing of the
Registration Statement on the date of this opinion letter and should not be
quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without my
prior written consent.
I hereby consent to the filing of this opinion letter as Exhibit 5.01
to the Registration Statement. In giving this consent, I do not thereby admit
that I are an "expert" within the meaning of the Securities Act of 1933, as
amended.
Very truly yours,
Russell B. Stevenson, Jr.
General Counsel, CyberCash, Inc.
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-____) pertaining to the 1995 Stock Option Plan, as amended,
of Cybercash, Inc. of our report dated January 23, 1997, with respect to the
consolidated financial statements of CyberCash, Inc. included in the Annual
Report on Form 10-K for the year ended December 31, 1996.
/s/ ERNST & YOUNG LLP
/s/ Ernst & Young LLP
Vienna, Virginia
July 17, 1997
