<PAGE> 1
As filed with the Securities and Exchange Commission on April 28, 1999
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, VIRGINIA 20191
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(Address of principal executive offices) (Zip code)
AMENDED AND RESTATED
CYBERCASH, INC. 1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
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RUSSELL B. STEVENSON, JR.
CYBERCASH, INC.
2100 RESTON PARKWAY, THIRD FLOOR
RESTON, VIRGINIA 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>
======================================================================================================================
Proposed Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered(1) price per share(1) price(1) registration fee(1)
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common 500,000 16 19/32 $8,296,875 $2447.58
Stock, par 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 ask price of $16 19/32 per share
of CyberCash, Inc. common stock on April 27, 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).
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<PAGE> 2
In accordance with Section E of the General Instructions to Form
S-8, the contents of Form S-8, Registration No. 333-31641, filed by CyberCash,
Inc. with the Securities and Exchange Commission on July 18, 1997, are
incorporated herein by reference for the registration of 500,000 additional
shares of common stock issuable pursuant to the CyberCash, Inc. 1995 Non-Officer
Directors' Stock Option Plan, as amended.
<PAGE> 3
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
5.01 Opinion regarding the legality of the shares of Common Stock
being registered
10.7(i) Amended and Restated CyberCash, Inc. 1995 Non-Officer
Directors' Stock Option Plan
23.01 Consent of Ernst & Young, LLP, Independent Auditors
23.02 Consent of Russell B. Stevenson, Jr. (contained in Exhibit
5.01)
24 Power of Attorney (contained on signature page)
</TABLE>
<PAGE> 4
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 April 28, 1999
CyberCash, Inc.
By:
-------------------------------------
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>
Date: April 28, 1999 /s/ William N. Melton
-------------------------------------------
William N. Melton
Chief Executive Officer and Chairman of the Board of Directors
Date: April 28, 1999 /s/ James J. Condon
-------------------------------------------
James J. Condon
President and Chief Operating Officer
(Principal Financial Officer and Principal Accounting Officer)
Date: April 28, 1999 /s/ Daniel C. Lynch
-------------------------------------------
Daniel C. Lynch
Director
Date: April 28, 1999 /s/ Michael Rothschild
-------------------------------------------
Michael Rothschild
Director
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
Date: April 28, 1999 /s/ Charles T. Russell
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Charles T. Russell
Director
Date: April 28, 1999 /s/ Garen K. Staglin
-------------------------------------------
Garen K. Staglin
Director
</TABLE>
<PAGE> 1
EXHIBIT 5.01
April 28, 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 $.001 per
share of the Company (the "Common Stock"), to be granted pursuant to the
CyberCash, Inc. 1995 Non-Officer Directors' Stock Option 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,
Russell B. Stevenson, Jr.
General Counsel
<PAGE> 1
EXHIBIT 10.7(i)
AMENDED AND RESTATED CYBERCASH, INC.
1995 NON-OFFICER DIRECTORS' STOCK OPTION PLAN
CYBERCASH, INC.
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN,
AS AMENDED
ADOPTED ON DECEMBER 20, 1995
APPROVED BY STOCKHOLDERS
ON FEBRUARY 1, 1996
AMENDMENT APPROVED BY THE BOARD OF DIRECTORS
ON JULY 18, 1997
AMENDMENT APPROVED BY THE BOARD OF DIRECTORS
ON APRIL 20, 1999
AMENDMENT APPROVED BY THE STOCKHOLDERS ON ___________
1. PURPOSE.
(a) The purpose of the 1995 Non-Employee Directors' Stock Option Plan
(the "Plan") is to provide a means by which each director of CyberCash, Inc.
(the "Company") who is not otherwise at the time of grant an employee of or
consultant to the Company or of any Affiliate of the Company (each such person
being hereafter referred to as a "Non-Employee Director") will be given an
opportunity to purchase stock of the Company.
(b) The word "Affiliate" as used in the Plan means any parent
corporation or subsidiary corporation of the Company as those terms are defined
in Sections 424(e) and (f), respectively, of the Internal Revenue Code of 1986,
as amended from time to time (the "Code").
1.
<PAGE> 2
(c) The Company, by means of the Plan, seeks to retain the services of
persons now serving as Non-Employee Directors of the Company, to secure and
retain the services of persons capable of serving in such capacity, and to
provide incentives for such persons to exert maximum efforts for the success of
the Company.
2. ADMINISTRATION.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") unless and until the Board delegates administration to a
committee, as provided in subparagraph 2(b).
(b) The Board may delegate administration of the Plan to a committee
composed of not fewer than two (2) members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the Plan, the powers theretofore
possessed by the Board, subject, however, to such resolutions, not inconsistent
with the provisions of the Plan, as may be adopted from time to time by the
Board. The Board may abolish the Committee at any time and revest in the Board
the administration of the Plan.
3. SHARES SUBJECT TO THE PLAN.
(a) Subject to the provisions of paragraph 10 relating to adjustments
upon changes in stock, the stock that may be sold pursuant to options granted
under the Plan shall not exceed in the aggregate six hundred thousand (600,000)
shares of the Company's common stock. If any option granted under the Plan
shall for any reason expire or otherwise terminate without having been
exercised in full, the stock not purchased under such option shall again become
available for the Plan.
(b) The stock subject to the Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
2.
<PAGE> 3
4. ELIGIBILITY.
Options shall be granted only to a Non-Employee Director of the
Company who becomes a Non-Employee Director of the Company after the Effective
Date of the Plan.
5. NON-DISCRETIONARY GRANTS.
(a) Each person who is, after the date that the registration of the
initial offering of shares of the Company's common stock for sale to the public
becomes effective (the "Effective Date"), elected for the first time to be a
Non-Employee Director automatically shall, upon the date of his or her initial
election to be a Non-Employee Director by the Board or stockholders of the
Company, be granted an option to purchase ten thousand (10,000) shares of
common stock of the Company on the terms and conditions set forth herein.
(b) On the date of each Annual Meeting of Stockholders of the Company,
commencing with the Annual Meeting of Stockholders occurring in 1997, each
person who is then a Non-Employee Director automatically shall be granted an
option to purchase five thousand (5,000) shares of common stock of the Company
on the terms and conditions set forth herein. If the Non-Employee Director has
not served for twelve months prior to such date, then the number of shares
subject to that Non-Employee Director's option under this subparagraph 5(b)
shall be equal to the number set forth in the previous sentence, adjusted by a
fraction, the numerator of which fraction shall be equal to the number of days
on which the individual was a Non-Employee Director during the preceding twelve
months and the denominator of which fraction shall be three hundred sixty five
(365), and increased to the next higher whole number of shares.
(c) On the date of each Annual Meeting of Stockholders of the Company,
commencing with the Annual Meeting of Stockholders occurring in 1997, each
person who is then a Non-Employee Director automatically shall be granted an
option to purchase 1,500 shares of common stock of the Company on the terms and
conditions set forth herein for each committee of the Board of Directors of
3.
<PAGE> 4
the Company on which such person has served for at least the five months
immediately prior to the Annual Meeting of Stockholders.
6. OPTION PROVISIONS.
Each option shall be subject to the following terms and conditions:
(a) The term of each option commences on the date it is granted and,
unless sooner terminated as set forth herein, expires on the date ("Expiration
Date") ten (10) years from the date of grant. If the optionee's service as a
Non-Employee Director or employee of or consultant to the Company or any
Affiliate terminates for any reason or for no reason, the option shall
terminate on the earlier of the Expiration Date or the date six (6) months
following the date of termination of all such service; provided, however, that
if such termination of service is due to (i) the optionee's death, the option
shall terminate on the earlier of the Expiration Date or eighteen (18) months
following the date of the optionee's death, or (ii) the optionee's disability,
the option shall terminate on the earlier of the Expiration Date or twelve (12)
months following the date of the optionee's disability. In any and all
circumstances, an option may be exercised following termination of the
optionee's service as a Non-Employee Director or employee of or consultant to
the Company or any Affiliate only as to that number of shares as to which it
was exercisable as of the date of termination of all such service under the
provisions of subparagraph 6(e).
(b) Subject to subparagraph 4(b), the exercise price of each option
shall be one hundred percent (100%) of the fair market value of the stock
subject to such option on the date such option is granted.
(c) Payment of the exercise price of each option is due in full in cash
or by check upon any exercise or in any one or a combination of cash and/or the
following alternatives:
4.
<PAGE> 5
(i) Provided that at the time of the exercise the Company's
common stock is publicly traded and quoted regularly in the Wall Street
Journal, payment by delivery of shares of common stock of the Company already
owned by the optionee, held for the period required to avoid a charge to the
Company's reported earnings, and owned free and clear of any liens, claims,
encumbrances or security interest, which common stock shall be valued at its
fair market value on the date preceding the date of exercise; or
(ii) This option may be exercised pursuant to a program developed
under Regulation T as promulgated by the Federal Reserve Board which results in
the receipt of cash (or check) by the Company either prior to the issuance of
shares of the Company's common stock or pursuant to the terms of irrevocable
instructions issued by the optionee prior to the issuance of shares of the
Company's common stock.
(d) An option shall not be transferable except by will or by the laws
of descent and distribution, or pursuant to a qualified domestic relations
order satisfying the requirements of Rule 16b-3 under the Securities Exchange
Act of 1934 ("Rule 16b-3") and shall be exercisable during the lifetime of the
person to whom the option is granted only by such person (or by his guardian or
legal representative) or transferee pursuant to such an order. Notwithstanding
the foregoing, the optionee may, by delivering written notice to the Company in
a form satisfactory to the Company, designate a third party who, in the event
of the death of the optionee, shall thereafter be entitled to exercise the
option.
(e) The option shall become exercisable in monthly installments over a
period of five (5) years from the date of grant at the rate of one-sixtieth
(1/60th) of the number of shares of the Company's common stock subject to such
option for each month, commencing on the date one month after the date of grant
of the option, provided that the optionee has, during the entire period prior
to such vesting date, continuously served as a Non-Employee Director or
employee of or consultant to the Company or any Affiliate of the
5.
<PAGE> 6
Company, whereupon such option shall become fully exercisable in accordance with
its terms with respect to that portion of the shares represented by that
installment.
(f) The Company may require any optionee, or any person to whom an
option is transferred under subparagraph 6(d), as a condition of exercising any
such option: (i) to give written assurances satisfactory to the Company as to
the optionee's knowledge and experience in financial and business matters; and
(ii) to give written assurances satisfactory to the Company stating that such
person is acquiring the stock subject to the option for such person's own
account and not with any present intention of selling or otherwise distributing
the stock. These requirements, and any assurances given pursuant to such
requirements, shall be inoperative if (i) the issuance of the shares upon the
exercise of the option has been registered under a then-currently-effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii) as to any particular requirement, a determination is
made by counsel for the Company that such requirement need not be met in the
circumstances under the then applicable securities laws. The Company may
require any optionee to provide such other representations, written assurances
or information which the Company shall determine is necessary, desirable or
appropriate to comply with applicable securities laws as a condition of
granting an option to the optionee or permitting the optionee to exercise the
option. The Company may, upon advice of counsel to the Company, place legends
on stock certificates issued under the Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the stock.
6.
<PAGE> 7
(g) Notwithstanding anything to the contrary contained herein, an
option may not be exercised unless the shares issuable upon exercise of such
option are then registered under the Securities Act or, if such shares are not
then so registered, the Company has determined that such exercise and issuance
would be exempt from the registration requirements of the Securities Act.
7. COVENANTS OF THE COMPANY.
(a) During the terms of the options granted under the Plan, the Company
shall keep available at all times the number of shares of stock required to
satisfy such options.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the Plan such authority as may be required to
issue and sell shares of stock upon exercise of the options granted under the
Plan; provided, however, that this undertaking shall not require the Company to
register under the Securities Act either the Plan, any option granted under the
Plan, or any stock issued or issuable pursuant to any such option. If, after
reasonable efforts, the Company is unable to obtain from any such regulatory
commission or agency the authority which counsel for the Company deems
necessary for the lawful issuance and sale of stock under the Plan, the Company
shall be relieved from any liability for failure to issue and sell stock upon
exercise of such options.
8. USE OF PROCEEDS FROM STOCK.
Proceeds from the sale of stock pursuant to options granted under
the Plan shall constitute general funds of the Company.
9. MISCELLANEOUS.
(a) Neither an optionee nor any person to whom an option is transferred
under subparagraph 6(d) shall be deemed to be the holder of, or to have any of
the rights of a holder with respect to, any shares subject to such option
unless and until such person has satisfied all requirements for exercise of the
option pursuant to its terms.
7.
<PAGE> 8
(b) Throughout the term of any option granted pursuant to the Plan, the
Company shall make available to the holder of such option, not later than one
hundred twenty (120) days after the close of each of the Company's fiscal years
during the option term, upon request, such financial and other information
regarding the Company as comprises the annual report to the stockholders of the
Company provided for in the Bylaws of the Company and such other information
regarding the Company as the holder of such option may reasonably request.
(c) Nothing in the Plan or in any instrument executed pursuant thereto
shall confer upon any Non-Employee Director any right to continue in the
service of the Company or any Affiliate in any capacity or shall affect any
right of the Company, its Board or stockholders or any Affiliate to remove any
Non-Employee Director pursuant to the Company's By-Laws and the provisions of
the Delaware General Corporation Law (or the applicable laws of the Company's
state of incorporation if the Company's state of incorporation should change in
the future).
(d) No Non-Employee Director, individually or as a member of a group,
and no beneficiary or other person claiming under or through him, shall have
any right, title or interest in or to any option reserved for the purposes of
the Plan except as to such shares of common stock, if any, as shall have been
reserved for him pursuant to an option granted to him.
(e) In connection with each option made pursuant to the Plan, it shall
be a condition precedent to the Company's obligation to issue or transfer
shares to a Non-Employee Director, or to evidence the removal of any
restrictions on transfer, that such Non-Employee Director make arrangements
satisfactory to the Company to insure that the amount of any federal or other
withholding tax required to be withheld with respect to such sale or transfer,
or such removal or lapse, is made available to the Company for timely payment
of such tax.
(f) As used in this Plan, "fair market value" means, as of any date,
the value of the common stock of the Company determined as follows:
8.
<PAGE> 9
(i) 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;
(ii) 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;
(iii) In the absence of an established market for the common
stock, the Fair Market Value shall be determined in good faith by the Board.
10. ADJUSTMENTS UPON CHANGES IN STOCK.
(a) If any change is made in the stock subject to the Plan, or subject
to any option granted under the Plan (through merger, consolidation,
reorganization, recapitalization, stock dividend, dividend in property other
than cash, stock split, liquidating dividend, combination of shares, exchange
of shares, change in corporate structure or other transaction not involving the
receipt of consideration by the Company), the Plan and outstanding options will
be appropriately adjusted in the class(es) and maximum number of shares subject
to the Plan and the class(es) and number of shares and price per share of stock
subject to outstanding options. Such adjustments shall be made by the Board,
the determination of which shall be final, binding and conclusive. (The
conversion of any convertible securities of the Company shall not be treated as
a "transaction not involving the receipt of consideration by the Company.")
9.
<PAGE> 10
(b) In the event of: (1) a dissolution, liquidation, or sale of all or
substantially all of the assets of the Company; (2) a merger or consolidation
in which the Company is not the surviving corporation; (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise; or (4) the acquisition by any person, entity or group within
the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") or any comparable successor provisions
(excluding any employee benefit plan, or related trust, sponsored or maintained
by the Company or any Affiliate of the Company) of the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act, or
comparable successor rule) of securities of the Company representing at least
fifty percent (50%) of the combined voting power entitled to vote in the
election of directors, then to the extent not prohibited by applicable law, the
time during which options outstanding under the Plan may be exercised shall be
accelerated prior to such event and the options terminated if not exercised
after such acceleration and at or prior to such event.
11. AMENDMENT OF THE PLAN.
(a) The Board at any time, and from time to time, may amend the Plan
and/or some or all outstanding options granted under the Plan, provided,
however, that the Board shall not amend the Plan more than once every six (6)
months, with respect to the provisions of the Plan which relate to the amount,
price and timing of grants, other than to comport with changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
rules thereunder. Except as provided in paragraph 10 relating to adjustments
upon changes in stock, no amendment shall be effective unless approved by the
stockholders of the Company within twelve (12) months before or after the
adoption of the amendment, where the amendment will:
(i) Increase the number of shares which may be issued under
the Plan;
10.
<PAGE> 11
(ii) Modify the requirements as to eligibility for
participation in the Plan (to the extent such modification requires stockholder
approval in order for the Plan to comply with the requirements of Rule 16b-3);
or
(iii) Modify the Plan in any other way if such modification
requires stockholder approval in order for the Plan to comply with the
requirements of Rule 16b-3.
(b) Rights and obligations under any option granted before any
amendment of the Plan shall not be impaired by such amendment unless (i) the
Company requests the consent of the person to whom the option was granted and
(ii) such person consents in writing.
12. TERMINATION OR SUSPENSION OF THE PLAN.
(a) The Board may suspend or terminate the Plan at any time. Unless
sooner terminated, the Plan shall terminate on the date on which all shares of
the Company's common stock which have been reserved for issuance under this
Plan shall have been issued. No options may be granted under the Plan while the
Plan is suspended or after it is terminated.
(b) Rights and obligations under any option granted while the Plan is
in effect shall not be impaired by suspension or termination of the Plan,
except with the consent of the person to whom the option was granted.
(c) The Plan shall terminate upon the occurrence of any of the events
described in Section 10(b) above.
13. EFFECTIVE DATE OF PLAN; CONDITIONS OF EXERCISE.
(a) The Plan shall become effective upon adoption by the Board of
Directors, subject to the condition subsequent that the Plan is approved by the
stockholders of the Company.
(b) No option granted under the Plan shall be exercised or exercisable
unless and until the condition of subparagraph 13(a) above has been met.
11.
<PAGE> 1
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 Amended and Restated CyberCash, Inc. 1995
Non-Employee Directors' Stock Option Plan of our reports, dated January 26,
1999, with respect to the consolidated financial statements and schedule of
CyberCash, Inc. included in its Annual Report on Form 10-K for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Vienna, Virginia
April 28, 1999
