<PAGE> 1
As filed with the Securities and Exchange Commission on February 3, 1999
Registration No. 333-____________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
CYBERCASH, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 54-1725021
(State or other jurisdiction of 2100 RESTON PARKWAY, THIRD FLOOR (I.R.S. Employer
incorporation or organization) RESTON, VIRGINIA 20191 Identification Number)
(Address of principal executive offices) (Zip code)
</TABLE>
CYBERCASH, INC. 1999 RESTRICTED STOCK PLAN
(Full title of the plan)
RUSSELL B. STEVENSON, JR.
2100 RESTON PARKWAY
THIRD FLOOR
RESTON, VIRGINIA 20191
(Name and address of agent for service)
(703) 620-4200
(Telephone number, including area code, of agent for service)
-------------------------------------------------------------
WITH A COPY TO:
MICHAEL J. SILVER
HOGAN & HARTSON L.L.P.
111 SOUTH CALVERT STREET
BALTIMORE, MARYLAND 21202
(410) 659-2700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================================
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration fee (1)
share (1) price (1)
- ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 500,000 $14.78 $7,390,000 2,180.05
value $.001 per share
(2)
==============================================================================================================================
</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 are based on the average of
the bid and asked price of $14.78 per share of CyberCash,
Inc. common stock on February 1, 1999 as reported on the
NASDAQ National Market.
(2) Includes Series E Junior Participating Preferred Stock
Purchase Rights attached thereto, for which no separate fee is
payable pursuant to Rule 457(i).
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
CyberCash, Inc. (the "Registrant") will separately send or
give documents containing the information required to be provided in this Part
I to its employees participating in the CyberCash, Inc. 1999 Restricted Stock
Plan (the "Plan"), as contemplated by Rule 428(b)(1) under the Securities Act
of 1933, as amended (the "Securities Act"). In accordance with the
instructions to Part I of Form S-8, the Registrant will not file these
documents with the Securities and Exchange Commission (the "Commission"),
either as part of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 under the Securities Act.
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) Annual report on Form 10-K for the year ended December
31, 1997 filed with the SEC on March 31, 1998;
(b) All reports filed with the Commission pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), since
December 31, 1997.
(c) The description of the Registrant's common stock
contained in the Registrant's Registration Statement on
Form 8-A filed with the Commission on December 21,
1995, registering shares of Common Stock pursuant to
Section 12(g) of the Exchange Act.
In addition, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities 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.
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.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES.
A description of the Registrant's common stock, par value
$.001 per share, is incorporated by reference 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 (the
"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). Article SIXTH of the
Registrant's Certificate of Incorporation provides that the Registrant will
indemnify its directors and officers to the fullest extent permitted by law and
that directors shall not be liable for monetary damages to the Registrant or
its stockholders for breach of fiduciary duty, except to the extent not
permitted under the DGCL.
Section 145 of the 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.
* * * * *
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to trustees, 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of the
expenses incurred or paid by a trustee, officer or controlling person of the
Registrant of the successful defense of any action, suit or proceeding) is
asserted by such trustee, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such
<PAGE> 4
indemnification by the Registrant is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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<CAPTION>
Exhibit
Number Description
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<S> <C>
5.01 Opinion regarding the legality of the shares of Common Stock being registered
10.01 CyberCash, Inc. 1999 Restricted Stock Plan
23.01 Consent of Ernst & Young LLP, Independent Auditors
23.02 Consent of Ernst & Young LLP, Independent Auditors
23.03 Consent of Russell B. Stevenson, Jr. (contained in Exhibit 5.01)
24 Power of Attorney (contained on signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
the Registration Statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the Registration
Statement;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the 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 Exchange Act that are incorporated
by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE> 5
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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) The undertaking concerning indemnification is set forth under
the response to Item 6.
(d) The undersigned Registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to
whom the prospectus is sent or given, the latest annual
report, to security holders that is incorporated by reference
in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not
set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such
interim financial information.
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
5.01 Opinion regarding the legality of the shares of Common Stock being registered
10.01 CyberCash, Inc.1999 Restricted Stock Plan
23.01 Consent of Ernst & Young LLP, Independent Auditors
23.02 Consent of Ernst & Young LLP, Independent Auditors
23.03 Consent of Russell B. Stevenson, Jr. (contained in Exhibit 5.01)
24 Power of Attorney (contained on signature page)
</TABLE>
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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, Virginia, on February 3, 1999
CyberCash, Inc.
By: /s/ WILLIAM N. MELTON
----------------------------------
William N. Melton
Chief Executive
Officer and Chairman of the
Board of Directors
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.
We, the undersigned officers and directors of CyberCash, Inc., hereby severally
and individually constitute and appoint James J. Condon 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.
<TABLE>
<S> <C> <C>
Date: February 3, 1999 /s/ WILLIAM N. MELTON
-------------------------------------------------
William N. Melton
Chief Executive Officer and Chairman of the Board
of Directors
Date: February 3, 1999 /s/ JAMES J. CONDON
-------------------------------------------------
James J. Condon
President and Chief Operating Officer
(Principal Financial Officer and Principal
Accounting Officer)
Date: February 3, 1999 /s/ DANIEL C. LYNCH
-------------------------------------------------
Daniel C. Lynch
Director
Date: February 3, 1999 /s/ MICHAEL ROTHSCHILD
-------------------------------------------------
Michael Rothschild
Director
</TABLE>
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<TABLE>
<S> <C> <C>
Date: February 3, 1999 /s/ CHARLES T. RUSSELL
-------------------------------------------------
Charles T. Russell
Director
Date: February 3, 1999 /s/ GAREN K. STAGLIN
-------------------------------------------------
Garen K. Staglin
Director
</TABLE>
<PAGE> 1
EXHIBIT 5.01
February 3, 1999
Board of Directors
CyberCash, Inc.
2100 Reston Parkway, Third Floor
Reston, Virginia 20191
Ladies and Gentlemen:
I am the General Counsel of CyberCash, Inc., a Delaware
corporation (the "Company"), and am furnishing this opinion in connection with
the Company's registration statement on Form S-8 filed on the date hereof (the
"Registration Statement") to register under the Securities Act of 1933, as
amended, 500,000 shares (the "Shares") of common stock, par value $.01 per
share of the Company (the "Common Stock"), to be granted pursuant to the
CyberCash, Inc. 1999 Restricted Stock Plan (the "Plan"). This letter is
furnished to you pursuant to the requirements of Item 601(b)(5) of Regulation
S-K, 17 C.F.R. Section 229.601(b)(5) in connection with such registration.
I am of the opinion that the Shares, when issued and delivered
in the manner and on the terms contemplated in the Registration Statement and
the Plan (with the Company having received the consideration therefor, the form
of which is in accordance with applicable law), will be validly issued, fully
paid and non-assessable.
I hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement. In giving this consent, I do not
thereby admit that I am an "expert" within the meaning of the Securities Act of
1933, as amended.
Sincerely yours,
/s/ RUSSELL B. STEVENSON
Russell B. Stevenson, Jr.
General Counsel
<PAGE> 1
CYBERCASH, INC.
1999 RESTRICTED STOCK PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C>
1. PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. ADMINISTRATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1. Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2. Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Awards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.4. No Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. STOCK SUBJECT TO THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. EFFECTIVE DATE AND TERM OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.1. Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5.2. Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
6. ELIGIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
6.1. Company or Subsidiary Employees; Service Providers. . . . . . . . . . . . . . . . . 6
6.2. Successive Grants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. AWARD AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8. RESTRICTED STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.1. Grant of Restricted Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.2. Restrictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.3. Restricted Stock Certificates. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8.4. Rights of Holders of Restricted Stock. . . . . . . . . . . . . . . . . . . . . . . . 7
8.5. Termination of Employment or Other Relationship. . . . . . . . . . . . . . . . . . . 7
8.6. Rights in the Event of Death. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8.7. Rights in the Event of Disability. . . . . . . . . . . . . . . . . . . . . . . . . . 8
8.8. Delivery of Stock and Payment Therefor. . . . . . . . . . . . . . . . . . . . . . . 8
9. UNRESTRICTED STOCK AWARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
10. PARACHUTE LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. REQUIREMENTS OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11.1. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
11.2. Rule 16b-3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
12. AMENDMENT AND TERMINATION OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
13. EFFECT OF CHANGES IN CAPITALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13.1. Changes in Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13.2. Reorganization, Sale of Assets or Sale of Stock Which Involves a Change of Control. 11
13.3. Adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
13.4. No Limitations on Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
14. DISCLAIMER OF RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
15. NONEXCLUSIVITY OF THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. WITHHOLDING TAXES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
17. CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. OTHER PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
19. NUMBER AND GENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
</TABLE>
ii
<PAGE> 4
CYBERCASH, INC.
1999 RESTRICTED STOCK PLAN
CyberCash, Inc., a Delaware corporation (the "Company"), sets forth
herein the terms of its 1999 Restricted Stock Plan (the "Plan") as follows:
1. PURPOSE
The purpose of the Plan is to enhance the Company's ability to attract,
retain and compensate highly qualified officers, key employees, and other
persons, and to motivate such officers, key employees, and other persons to
serve the Company and its affiliates (as defined herein) and to expend maximum
effort to improve the business results and earnings of the Company, by
providing to such officers, key employees and other persons an opportunity to
acquire or increase a direct proprietary interest in the operations and future
success of the Company. To this end, the Plan provides for the grant of
restricted stock and unrestricted stock.
2. DEFINITIONS
For purposes of interpreting the Plan and related documents (including
Award Agreements), the following definitions shall apply:
2.1 "affiliate" of, or person "affiliated" with, a person means
any company or other trade or business that controls, is controlled by or is
under common control with such person within the meaning of Rule 405 of
Regulation C under the Securities Act.
2.2 "Award" means a grant of Restricted Stock or Unrestricted
Stock under the Plan.
2.3 "Award Agreement" means the Restricted Stock Agreement or
Unrestricted Stock Award Agreement or other written agreement between the
Company and a Grantee that evidences and sets out the terms and conditions of
an Award.
2.4 "Benefit Arrangement" shall have the meaning set forth in
SECTION 10 hereof.
2.5 "Board" means the Board of Directors of the Company.
- 1 -
<PAGE> 5
2.6 "Code" means the Internal Revenue Code of 1986, as now in
effect or as hereafter amended.
2.7 "Committee" means a committee of, and designated from time to
time by resolution of, the Board, which shall consist of no fewer than two
members of the Board, none of whom shall be an officer or other salaried
employee of the Company or any affiliate of the Company.
2.8 "Company" means CyberCash, Inc.
2.9 "Effective Date" means January 29, 1999, the date on which the
Plan was adopted by the Board.
2.10 "Exchange Act" means the Securities Exchange Act of 1934, as
now in effect or as hereafter amended.
2.11 "Fair Market Value" means, as of any date, the value of the
common stock of the Company determined as follows and in each case in a manner
consistent with Section 260.140.50 of Title of the California Code of
Regulations:
(1) If the common stock is listed on any established stock exchange or
a national market system, including without limitation the National
Market System of the National Association of Securities Dealers,
Inc. Automated Quotation ("NASDAQ") System, the Fair Market Value
of a share of common stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as
quoted on such system or exchange (or the exchange with the
greatest volume of trading in common stock) on the last market
trading day prior to the day of determination, as reported in the
Wall Street Journal or such other source as the Board deems
reliable;
(2) If the common stock is quoted on the NASDAQ System (but not on the
National Market System thereof) or is regularly quoted by a
recognized securities dealer but selling prices are not reported,
the Fair Market Value of a share of common stock shall be the mean
between the bid and asked prices for the common stock on the last
market trading day prior to the day of determination, as reported
in the Wall Street Journal or such other source as the Board deems
reliable;
(3) In the absence of an established market for the common stock, the
Fair Market Value shall be determined in good faith by the Board.
2
<PAGE> 6
2.11 "Grant Date" means, as determined by the Board or authorized
Committee, (i) the date as of which the Board or such Committee approves an
Award, (ii) the date on which the recipient of such Award first became an
employee of or otherwise entered into a relationship with the Company or an
affiliate of the Company or (iii) such other date as may be specified by the
Board or such Committee.
2.12 "Grantee" means a person who receives or holds Restricted
Stock or an Unrestricted Stock Award under the Plan.
2.13 "Other Agreement" shall have the meaning set forth in SECTION
10 hereof.
2.14 "Plan" means this CyberCash, Inc. 1999 Restricted Stock Plan.
2.15 "Reporting Person" means a person who is required to file
reports under Section 16(a) of the Exchange Act.
2.16 "Restricted Period" means the period during which Restricted
Stock is subject to restrictions or conditions pursuant to SECTION 8.2 hereof.
2.17 "Restricted Stock" means shares of Stock, awarded to a Grantee
pursuant to SECTION 8 hereof, that are subject to restrictions and to a risk of
forfeiture.
2.18 "Securities Act" means the Securities Act of 1933, as now in
effect or as hereafter amended.
2.19 "Service Provider" means a consultant or adviser to the
Company, a manager of the Company's properties or affairs, or other similar
service provider or affiliate of the Company, and employees of any of the
foregoing, as such persons may be designated from time to time by the Board
pursuant to SECTION 6.1 hereof.
2.20 "Stock" means the common stock, par value $0.001 per share, of
the Company.
2.21 "Subsidiary" means any "subsidiary corporation" of the Company
within the meaning of Section 424(f) of the Code.
2.22 "Unrestricted Stock Award" means any Award granted pursuant to
SECTION 9.
3
<PAGE> 7
3. ADMINISTRATION OF THE PLAN
3.1. BOARD.
The Board shall have such powers and authorities related to the
administration of the Plan as are consistent with the Company's certificate of
incorporation and by-laws and applicable law. The Board shall have full power
and authority to take all actions and to make all determinations required or
provided for under the Plan, any Award or any Award Agreement, and shall have
full power and authority to take all such other actions and make all such other
determinations not inconsistent with the specific terms and provisions of the
Plan that the Board deems to be necessary or appropriate to the administration
of the Plan, any Award or any Award Agreement. All such actions and
determinations shall be by the affirmative vote of a majority of the members of
the Board present at a meeting or by unanimous consent of the Board executed in
writing in accordance with the Company's articles of incorporation and by-laws
and applicable law. The interpretation and construction by the Board of any
provision of the Plan, any Award or any Award Agreement shall be final and
conclusive. As permitted by law, the Board may delegate its authority under
the Plan to a member of the Board of Directors or an executive officer of the
Company.
3.2. COMMITTEE.
The Board from time to time may delegate to a Committee such powers and
authorities related to the administration and implementation of the Plan, as
set forth in SECTION 3.1 above and in other applicable provisions, as the Board
shall determine, consistent with the certificate of incorporation and by-laws
of the Corporation and applicable law. In the event that the Plan, any Award
or any Award Agreement entered into hereunder provides for any action to be
taken or determination to be made by the Board, such action may be taken or
such determination may be made by the Committee if the power and authority to
do so has been delegated to the Committee by the Board as provided for in this
Section. Unless otherwise expressly determined by the Board, any such action
or determination by the Committee shall be final, binding and conclusive. As
permitted by law, the Committee may delegate its authority under the Plan to a
member of the Board of Directors or an executive officer of the Company.
3.3. AWARDS.
Subject to the other terms and conditions of the Plan, the Board shall
have full and final authority (i) to designate Grantees, (ii) to determine the
type or types of Award to be made to a Grantee, (iii) to determine the number
of shares of Stock to be subject to an Award, (iv) to establish the terms and
conditions of
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each Award (including, but not limited to, the nature and duration of any
restriction or condition (or provision for lapse thereof) relating to the
vesting, transfer, or forfeiture of an Award or the shares of Stock subject
thereto), (v) to prescribe the form of each Award Agreement evidencing an Award,
and (vi) to amend, modify, or supplement the terms of any outstanding Award.
Such authority specifically includes the authority, in order to effectuate the
purposes of the Plan but without amending the Plan, to modify Awards to eligible
individuals who are foreign nationals or are individuals who are employed
outside the United States to recognize differences in local law, tax policy, or
custom. As a condition to any subsequent Award, the Board shall have the right,
at its discretion, to require Grantees to return to the Company Awards
previously made under the Plan. Subject to the terms and conditions of the
Plan, any such new Award shall be upon such terms and conditions as are
specified by the Board at the time the new Award is made.
3.4. NO LIABILITY.
No member of the Board or of the Committee shall be liable for any
action or determination made in good faith with respect to the Plan or any
Award or Award Agreement.
4. STOCK SUBJECT TO THE PLAN
Subject to adjustment as provided in SECTION 13 hereof, the number of
shares of Stock available for issuance under the Plan shall be 500,000. Stock
issued or to be issued under the Plan shall be authorized but unissued shares.
If any shares covered by an Award are not purchased or are forfeited, or if an
Award otherwise terminates without delivery of any Stock subject thereto, then
the number of shares of Stock counted against the aggregate number of shares
available under the Plan with respect to such Award shall, to the extent of any
such forfeiture or termination, again be available for making Awards under the
Plan.
5. EFFECTIVE DATE AND TERM OF THE PLAN
5.1. EFFECTIVE DATE.
The Plan shall be effective as of the Effective Date.
5.2. TERM.
The Plan has no termination date.
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6. ELIGIBILITY
6.1. COMPANY OR SUBSIDIARY EMPLOYEES; SERVICE PROVIDERS.
Awards may be made under the Plan to any employee of, or a Service
Provider to, the Company or any Subsidiary, including any such employee who is
an officer or director of the Company or of any Subsidiary, as the Board shall
determine and designate from time to time.
6.2. SUCCESSIVE GRANTS.
An eligible person may receive more than one Award, subject to such
restrictions as are provided herein.
7. AWARD AGREEMENT
Each Award pursuant to the Plan shall be evidenced by an Award
Agreement, to be executed by the Company and by the Grantee, in such form or
forms as the Board shall from time to time determine. Award Agreements granted
from time to time or at the same time need not contain similar provisions but
shall be consistent with the terms of the Plan.
8. RESTRICTED STOCK
8.1. GRANT OF RESTRICTED STOCK.
The Board may from time to time grant Restricted Stock to persons
eligible to receive Awards under SECTION 6 hereof, subject to such
restrictions, conditions and other terms as the Board may determine.
8.2. RESTRICTIONS.
At the time an Award of Restricted Stock is made, the Board shall
establish a period of time (the "Restricted Period") applicable to such
Restricted Stock. Each Award of Restricted Stock may be subject to a different
Restricted Period. The Board may, in its sole discretion, at the time an Award
of Restricted Stock is made, prescribe restrictions in addition to or other
than the expiration of the Restricted Period, including the satisfaction of
corporate or individual performance objectives. Restricted Stock may not be
sold, transferred, assigned, pledged or otherwise encumbered or disposed of
during the Restricted Period or prior to the satisfaction of any other
restrictions prescribed by the Board with respect to such Restricted Stock.
8.3. RESTRICTED STOCK CERTIFICATES.
The Company shall issue, in the name of each Grantee to whom Restricted
Stock has been granted, stock certificates representing the total number of
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shares of Restricted Stock granted to the Grantee, as soon as reasonably
practicable after the Grant Date. The Board may provide in an Award Agreement
that either (i) the Secretary of the Company shall hold such certificates for
the Grantee's benefit until such time as the Restricted Stock is forfeited to
the Company or the restrictions lapse, or (ii) such certificates shall be
delivered to the Grantee, provided, however, that such certificates shall bear
a legend or legends that complies with the applicable securities laws and
regulations and makes appropriate reference to the restrictions imposed under
the Plan and the Award Agreement.
8.4. RIGHTS OF HOLDERS OF RESTRICTED STOCK.
Unless the Board otherwise provides in an Award Agreement, holders of
Restricted Stock shall have the right to vote such Stock and the right to
receive any dividends declared or paid with respect to such Stock. The Board
may provide that any dividends paid on Restricted Stock must be reinvested in
shares of Stock, which may or may not be subject to the same vesting conditions
and restrictions applicable to such Restricted Stock. All distributions, if
any, received by a Grantee with respect to Restricted Stock as a result of any
stock split, stock dividend, combination of shares, or other similar
transaction shall be subject to the restrictions applicable to the original
Award.
8.5. TERMINATION OF EMPLOYMENT OR OTHER RELATIONSHIP.
Upon the termination of a Grantee's employment or other relationship
with the Company other than by reason of death or "permanent and total
disability" (within the meaning of Section 22(e)(3) of the Code), any
Restricted Stock held by such Grantee that has not vested, or with respect to
which all applicable restrictions and conditions have not lapsed, shall
immediately be deemed forfeited, unless the Board, in its discretion,
determines otherwise. Upon forfeiture of Restricted Stock, the Grantee shall
have no further rights with respect to such Award, including but not limited to
any right to vote Restricted Stock or any right to receive dividends with
respect to shares of Restricted Stock. Whether a leave of absence or leave on
military or government service shall constitute a termination of employment or
other relationship for purposes of the Plan shall be determined by the Board,
which determination shall be final and conclusive.
8.6. RIGHTS IN THE EVENT OF DEATH.
Unless otherwise provided in the Award Agreement, if a Grantee dies
while employed by the Company, only the vested Restricted Stock granted to such
Grantee shall be fully vested on the date of death, and the shares of Stock
represented thereby shall be deliverable in accordance with the terms of the
Plan to the executors, administrators, legatees or distributees of the
Grantee's estate.
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8.7. RIGHTS IN THE EVENT OF DISABILITY.
Unless otherwise provided in the Award Agreement, if a Grantee
terminates employment or other relationship with the Company by reason of his
or her "permanent and total disability" (within the meaning of Section 22(e)(3)
of the Code), only the Restricted Stock granted to such Grantee shall be fully
vested on the date of such termination. Whether a termination of employment or
service is to be considered by reason of "permanent and total disability" for
purposes of the Plan shall be determined by the Board, which determination
shall be final and conclusive.
8.8. DELIVERY OF STOCK AND PAYMENT THEREFOR.
Upon the expiration or termination of the Restricted Period and the
satisfaction of any other conditions prescribed by the Board, the restrictions
applicable to shares of Restricted Stock shall lapse, and, unless otherwise
provided in the Award Agreement, upon payment by the Grantee to the Company, in
cash or by check, of the aggregate par value of the shares of Stock represented
by such Restricted Stock (or such other higher purchase price determined by the
Board), a stock certificate for such shares shall be delivered, free of all
such restrictions, to the Grantee or the Grantee's beneficiary or estate, as
the case may be.
9. UNRESTRICTED STOCK AWARDS
The Board may, in its sole discretion, grant (or sell at par value or
such other higher purchase price determined by the Board) an Unrestricted Stock
Award to any Grantee pursuant to which such Grantee may receive shares of Stock
free of any restrictions ("Unrestricted Stock") under the Plan. Unrestricted
Stock Awards may be granted or sold as described in the preceding sentence in
respect of past services or other valid consideration, or in lieu of any cash
compensation due to such Grantee.
10. PARACHUTE LIMITATIONS
Notwithstanding any other provision of this Plan or of any other
agreement, contract, or understanding heretofore or hereafter entered into by a
Grantee with the Company or any Subsidiary, except an agreement, contract, or
understanding hereafter entered into that expressly modifies or excludes
application of this paragraph (an "Other Agreement"), and notwithstanding any
formal or informal plan or other arrangement for the direct or indirect
provision of compensation to the Grantee (including groups or classes of
Grantees or beneficiaries of which the Grantee is a member), whether or not
such compensation is deferred, is in cash, or is in the form of a benefit to or
for the Grantee (a "Benefit Arrangement"), if the Grantee is a "disqualified
individual," as
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defined in Section 280G(c) of the Code, any Restricted Stock held by that
Grantee and any right to receive any payment or other benefit under this Plan
shall not become exercisable or vested (i) to the extent that such right to
exercise, vesting, payment, or benefit, taking into account all other rights,
payments, or benefits to or for the Grantee under this Plan, all Other
Agreements, and all Benefit Arrangements, would cause any payment or benefit to
the Grantee under this Plan to be considered a "parachute payment" within the
meaning of Section 280G(b)(2) of the Code as then in effect (a "Parachute
Payment") and (ii) if, as a result of receiving a Parachute Payment, the
aggregate after-tax amounts received by the Grantee from the Company under this
Plan, all Other Agreements, and all Benefit Arrangements would be less than the
maximum after-tax amount that could be received by the Grantee without causing
any such payment or benefit to be considered a Parachute Payment. In the event
that the receipt of any such right to exercise, vesting, payment, or benefit
under this Plan, in conjunction with all other rights, payments, or benefits to
or for the Grantee under any Other Agreement or any Benefit Arrangement would
cause the Grantee to be considered to have received a Parachute Payment under
this Plan that would have the effect of decreasing the after-tax amount
received by the Grantee as described in clause (ii) of the preceding sentence,
then the Grantee shall have the right, in the Grantee's sole discretion, to
designate those rights, payments, or benefits under this Plan, any Other
Agreements, and any Benefit Arrangements that should be reduced or eliminated
so as to avoid having the payment or benefit to the Grantee under this Plan be
deemed to be a Parachute Payment.
11. REQUIREMENTS OF LAW
11.1. GENERAL.
The Company shall not be required to sell or issue any shares of Stock
under any Award if the sale or issuance of such shares would constitute a
violation by the Grantee or the Company of any provision of any law or
regulation of any governmental authority, including without limitation any
federal or state securities laws or regulations. If at any time the Company
shall determine, in its discretion, that the listing, registration or
qualification of any shares subject to an Award upon any securities exchange or
under any governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the issuance or purchase of shares hereunder, no
shares of Stock may be issued or sold to the Grantee unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company, and any delay
caused thereby shall in no way affect the date of termination of the Award.
Specifically, in connection with the Securities Act, upon the delivery of any
shares of Stock underlying an Award, unless a registration statement under such
Act is in effect with respect to
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the shares of Stock covered by such Award, the Company shall not be required to
sell or issue such shares unless the Board has received evidence satisfactory
to it that the Grantee may acquire such shares pursuant to an exemption from
registration under the Securities Act. Any determination in this connection by
the Board shall be final, binding, and conclusive. The Company may, but shall
in no event be obligated to, register any securities covered hereby pursuant to
the Securities Act. The Company shall not be obligated to take any affirmative
action in order to cause the issuance of shares of Stock pursuant to the Plan
to comply with any law or regulation of any governmental authority.
11.2. RULE 16b-3.
During any time when the Company has a class of equity security
registered under Section 12 of the Exchange Act, it is the intent of the
Company that Awards pursuant to the Plan will qualify for the exemption
provided by Rule 16b-3 under the Exchange Act. To the extent that any
provision of the Plan or action by the Board does not comply with the
requirements of Rule 16b-3, it shall be deemed inoperative to the extent
permitted by law and deemed advisable by the Board, and shall not affect the
validity of the Plan. In the event that Rule 16b-3 is revised or replaced, the
Board may exercise its discretion to modify this Plan in any respect necessary
to satisfy the requirements of, or to take advantage of any features of, the
revised exemption or its replacement.
12. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend, or
terminate the Plan as to any shares of Stock as to which Awards have not been
made; provided, however, that the Board shall not, without approval of the
Company's shareholders, amend the Plan such that it does not comply with the
Code. The Company may retain the right in an Award Agreement to cause a
forfeiture of the gain realized by a Grantee on account of the Grantee taking
actions in "competition with the Company," as defined in the applicable Award
Agreement. Furthermore, the Company may annul an Award if the Grantee is an
employee of the Company or an affiliate and is terminated "for cause" as
defined in the applicable Award Agreement. Except as permitted under this
SECTION 12 or SECTION 13 hereof, no amendment, suspension, or termination of
the Plan shall, without the consent of the Grantee, alter or impair rights or
obligations under any Award theretofore awarded under the Plan.
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13. EFFECT OF CHANGES IN CAPITALIZATION
13.1. CHANGES IN STOCK.
If the number of outstanding shares of Stock is increased or decreased
or the shares of Stock are changed into or exchanged for a different number or
kind of shares or other securities of the Company on account of any
recapitalization, reclassification, stock split, reverse split, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Company occurring after the Effective Date, the
number and kinds of shares for which Awards may be made under the Plan shall be
adjusted proportionately and accordingly by the Company. In addition, the
number and kind of shares for which Awards are outstanding shall be adjusted
proportionately and accordingly so that the proportionate interest of the
Grantee immediately following such event shall, to the extent practicable, be
the same as immediately before such event.
13.2. REORGANIZATION, SALE OF ASSETS OR SALE OF STOCK WHICH INVOLVES
A CHANGE OF CONTROL.
Upon the dissolution or liquidation of the Company or upon a merger,
consolidation, or reorganization of the Company with one or more other entities
in which the Company is not the surviving entity, or upon a sale of
substantially all of the assets of the Company to another entity, or upon any
transaction (including, without limitation, a merger or reorganization in which
the Company is the surviving entity) approved by the Board that results in any
person or entity (or person or entities acting as a group or otherwise in
concert, owning fifty percent (50%) or more of the combined voting power of all
classes of securities of the Company), all outstanding shares subject to Awards
shall be deemed to have vested, and all restrictions and conditions applicable
to such shares subject to Awards shall be deemed to have lapsed, immediately
prior to the occurrence of such event. This SECTION 13.2 shall not apply to
any transaction to the extent that (A) provision is made in writing in
connection with such transaction for the continuation of the Plan or the
assumption of the Restricted Stock theretofore granted, or for the substitution
for such Restricted Stock of new restricted stock covering the stock of a
successor entity, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kinds of shares, in which event the Plan and
Restricted Stock theretofore granted shall continue in the manner and under the
terms so provided or (B) a majority of the full Board determines that such
transaction shall not trigger application of the provisions of this SECTION
13.2 and limited by any "change in control" provision in any employment
agreement or Award Agreement applicable to the Grantee. Upon
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consummation of any such transaction, the Plan shall terminate, except to the
extent provision is made in writing in connection with such transaction for the
continuation of the Plan.
13.3. ADJUSTMENTS.
Adjustments under SECTION 13 related to shares of Stock or securities
of the Company shall be made by the Board, whose determination in that respect
shall be final, binding and conclusive. No fractional shares or other
securities shall be issued pursuant to any such adjustment, and any fractions
resulting from any such adjustment shall be eliminated in each case by rounding
downward to the nearest whole share.
13.4. NO LIMITATIONS ON COMPANY.
The making of Awards pursuant to the Plan shall not affect or limit in
any way the right or power of the Company to make adjustments,
reclassifications, reorganizations, or changes of its capital or business
structure or to merge, consolidate, dissolve, or liquidate, or to sell or
transfer all or any part of its business or assets.
14. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Award or Award Agreement shall be
construed to confer upon any individual the right to remain in the employ or
service of the Company or any affiliate, or to interfere in any way with any
contractual or other right or authority of the Company either to increase or
decrease the compensation or other payments to any individual at any time, or
to terminate any employment or other relationship between any individual and
the Company. In addition, notwithstanding anything contained in the Plan to
the contrary, unless otherwise stated in the applicable Award Agreement, no
Award granted under the Plan shall be affected by any change of duties or
position of the Grantee, so long as such Grantee continues to be a director,
officer, consultant or employee of the Company. The obligation of the Company
to pay any benefits pursuant to this Plan shall be interpreted as a contractual
obligation to pay only those amounts described herein, in the manner and under
the conditions prescribed herein. The Plan shall in no way be interpreted to
require the Company to transfer any amounts to a third party trustee or
otherwise hold any amounts in trust or escrow for payment to any Grantee or
beneficiary under the terms of the Plan.
15. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the Plan to the
shareholders of the Company for approval shall be construed as creating any
limitations upon the right and authority of the Board to adopt such other
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incentive compensation arrangements (which arrangements may be applicable
either generally to a class or classes of individuals or specifically to a
particular individual or particular individuals) as the Board in its discretion
determines desirable.
16. WITHHOLDING TAXES
The Company or a Subsidiary, as the case may be, shall have the right
to deduct from payments of any kind otherwise due to a Grantee any Federal,
state, or local taxes of any kind required by law to be withheld with respect
to the vesting of or other lapse of restrictions applicable to an Award or upon
the issuance of any shares of Stock pursuant to an Award. At the time of such
vesting, lapse, or exercise, the Grantee shall pay to the Company or the
Subsidiary, as the case may be, any amount that the Company or the Subsidiary
may reasonably determine to be necessary to satisfy such withholding
obligation. Subject to the prior approval of the Company or the Subsidiary,
which may be withheld by the Company or the Subsidiary, as the case may be, in
its sole discretion, the Grantee may elect to satisfy such obligations, in
whole or in part, (i) by causing the Company or the Subsidiary to withhold
shares of Stock otherwise issuable to the Grantee or (ii) by delivering to the
Company or the Subsidiary shares of Stock already owned by the Grantee. The
shares of Stock so delivered or withheld shall have an aggregate Fair Market
Value equal to such withholding obligations. The Fair Market Value of the
shares of Stock used to satisfy such withholding obligation shall be determined
by the Company or the Subsidiary as of the date that the amount of tax to be
withheld is to be determined. A Grantee who has made an election pursuant to
this SECTION 16 may satisfy his or her withholding obligation only with shares
of Stock that are not subject to any repurchase, forfeiture, unfulfilled
vesting, or other similar requirements.
17. CAPTIONS
The use of captions in this Plan or any Award Agreement is for the
convenience of reference only and shall not affect the meaning of any provision
of the Plan or such Award Agreement.
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18. OTHER PROVISIONS
Each Award granted under the Plan may contain such other terms and
conditions not inconsistent with the Plan as may be determined by the Board, in
its sole discretion.
19. NUMBER AND GENDER
With respect to words used in this Plan, the singular form shall
include the plural form, the masculine gender shall include the feminine
gender, etc., as the context requires.
20. SEVERABILITY
If any provision of the Plan or any Award Agreement shall be determined
to be illegal or unenforceable by any court of law in any jurisdiction, the
remaining provisions hereof and thereof shall be severable and enforceable in
accordance with their terms, and all provisions shall remain enforceable in any
other jurisdiction.
21. GOVERNING LAW
The validity and construction of this Plan and the instruments
evidencing the Awards granted hereunder shall be governed by the laws of the
State of Delaware (without giving effect to the choice of law provisions
thereof).
* * *
The Plan was duly adopted and approved by the Board of Directors of the
Company as of January 29, 1999.
/s/ JAMES J. CONDON
-------------------------------------
James J. Condon
President and Chief Financial Officer
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EXHIBIT 23.01
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333- ) pertaining to the CyberCash, Inc. 1999 Restricted
Stock Plan of our report dated March 13, 1998, except for Note 13, as to which
the date is March 16, 1998, with respect to the consolidated financial
statements of CyberCash, Inc. included in its Annual Report (Form 10-K) for the
year ended December 31, 1997, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Vienna, Virginia
February 3, 1999
<PAGE> 1
EXHIBIT 23.02
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333- ) pertaining to the CyberCash, Inc. 1999
Restricted Stock Plan of our report dated February 27, 1998, with respect to
the consolidated financial statements of ICVerify, Inc. included in CyberCash,
Inc.'s Current Report on Form 8-K dated May 27, 1998, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
February 3, 1999
