As filed with the Securities and Exchange
Commission on January 31, 2000 REGISTRATION NO.
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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
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OFFICIAL PAYMENTS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 52-2190781
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2333 San Ramon Valley Boulevard, Suite 450
San Ramon, California 94583
(925) 855-5000
(Address, including Zip Code, of principal executive offices)
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OFFICIAL PAYMENTS CORPORATION
1999 STOCK INCENTIVE PLAN
(Full title of the Plan)
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Mr. Thomas R. Evans
Chairman and Chief Executive Officer
Official Payments Corporation
445 Park Avenue, 10th Floor
New York, New York 10022
(917) 322-2540
Copy to:
Dennis J. Block, Esq.
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
(212) 504-6000
(Name and address, including Zip Code, telephone number and area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Aggregate Registration
Price Per Share Offering Price (2) Fee
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Common Stock, $0.01 6,900,000 shares (2) $59,744,163.97 $15,772.46
par value
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(1) Based on the number of shares of common stock of Official Payments
Corporation (the "Company") reserved for issuance upon exercise of options
granted pursuant to the U.S. Audiotex Corporation 1999 Stock Incentive
Plan (the "Plan"). In addition to such shares, this registration statement
also covers an undetermined number of shares of common stock of the
Company that, by reason of certain events specified in the Plan, may
become issuable upon exercise of options through the application of
certain anti-dilution provisions.
(2) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457 of the Securities Act of 1933, on the basis of
(i) 4,654,923 shares, 1,488,820 shares, 3,000 shares, 7,500 shares, 8,000
shares, 4,000 shares, 60,000 shares, 18,000 shares and 5,500 shares
underlying outstanding options with exercise prices of $1.33, $15.00,
$33.12, $51.31, $51.31, $45.66, $46.81, $46.81, and $43.31, respectively,
and (ii) restricted shares and shares that may be acquired upon exercise
of options granted in the future deemed to be offered at $40.375 per
share, the average of the daily high and low sales prices of common stock
of the Company on the Nasdaq National Market at the close of trading on
January 28, 2000.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not required to be filed with the Commission.
Note: The document containing the information specified in this Part
I will be sent or given to employees as specified by Rule 428(b)(1). Such
document need not be filed with the Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this form, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended ("Securities Act").
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information heretofore filed with the
Commission by the Registrant (File No. 333-87325) are incorporated by reference
in this registration statement:
(1) the description of the Registrant's Common Stock (the "Common
Stock") contained in the Registrant's Registration Statement on Form
8-A, dated November 18, 1999; and
(2) the Registrant's financial statements and notes thereto contained in
the Registrant's Registration Statement on Form S-1 (File No.
333-87325), as amended, originally filed on September 17, 1999.
Official Payments Corporation will provide without charge to each
person to whom this Prospectus is delivered, upon request of any such person, a
copy of the foregoing document incorporated herein by reference (other than
exhibits to such document). Written requests should be directed to Official
Payments Corporation at 445 Park Avenue, 10th Floor, New York, New York 10022.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 2. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law of
Delaware (the "DGCL") empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
complete action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation and, with respect to any criminal action
or proceeding, had no cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification may be made
in respect to any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery or the court in which such action or suit was brought shall
determine that despite the adjudication of liability such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Section 145 of the DGCL further provides that to the extent a
director, officer, employee or agent of a corporation has been successful in the
defense of any action, suit or proceeding referred to in subsections (a) and (b)
or in the defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification or advancement of expenses
provided for by Section 145 shall not be deemed exclusive of any other rights to
which the indemnified party may be entitled; and empowers the corporation to
purchase and maintain insurance on behalf of a director, officer, employee or
agent of the corporation against any liability asserted against him or incurred
by him in any such capacity or arising out of his status as such whether or not
the corporation would have the power to indemnify him against such liabilities
under Section 145.
The Company's Certificate of Incorporation provides that no
director, or person serving on a committee of the board of directors, shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability:
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<PAGE>
(i) for any breach of the director's duty of loyalty to the Company or its
stockholders; (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) under Section 174 of
the DGCL; or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's bylaws provide that it must indemnify its directors,
officers and employees against any liability incurred in connection with any
proceeding in which they may be involved as a party or otherwise, by reason of
the fact that he or she is or was a director, officer, employee, or agent of the
Company, or is or was serving at the Company's request as a director, officer,
employee, agent, fiduciary or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan, or other entity or enterprise, except:
(i) to the extent that such indemnification against a particular liability is
expressly prohibited by applicable law; (ii) for a breach of such person's duty
of loyalty to the Company or its stockholders; (iii) for acts or omission not in
good faith; (iv) for intentional misconduct or a knowing violation of law; or
(v) for any transaction resulting in receipt by such person of an improper
personal benefit. Such indemnification may include advances of expenses prior to
the final disposition of such proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Certificate of Incorporation of the Registrant (1)
3.1.1 Amended Certificate of Incorporation of the Registrant (2)
3.2 Bylaws of the Registrant (1)
4.1 Common Stock Specimen (5)
4.2 Stock Purchase Agreement dated as of November 3, 1999 between
Official Payments Corporation and E*TRADE Group, Inc. (3)
4.2.2 Amendment No. 1 to Stock Purchase Agreement dated as of
November 8, 1999 among Official Payments Corporation, E*TRADE Group,
Inc. and Imperial Bank (4)
4.3 Registration Rights Agreement dated as of October 15, 1999 between
Imperial Bank and U.S. Audiotex Corporation (5)
4.4 Registration Rights Agreement dated as of October 15, 1999 between
Beranson Holdings, Inc. and U.S. Audiotex Corporation (5)
5.1 Opinion of Cadwalader, Wickersham & Taft, counsel for Registrant, as to
the legality of the securities being registered.
10.3 1999 Stock Incentive Plan (1)
10.3.1 Amendment No. 1 to 1999 Stock Incentive Plan (4)
23.1 Consent of Cadwalader, Wickersham & Taft (included in
Exhibit 5.1 hereof).
23.2 Consent of KPMG LLP.
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(1) Incorporated by reference to the same-numbered exhibit filed
with the Company's Registration Statement on Form S-1 (File No.
333-87325), originally filed on September 17, 1999
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<PAGE>
(2) Incorporated by reference to the same-numbered exhibit filed
with the Company's Amendment No. 1 to Registration Statement on Form
S-1 (File No. 333-87325), filed on October 26, 1999
(3) Incorporated by reference to the same-numbered exhibit filed
with the Company's Amendment No. 2 to Registration Statement on Form
S-1 (File No. 333-87325), filed on November 5, 1999
(4) Incorporated by reference to the same-numbered exhibit filed
with the Company's Amendment No. 3 to Registration Statement on Form
S-1 (File No. 333-87325), filed on November 16, 1999
(5) Incorporated by reference to the same-numbered exhibit filed
with the Company's Amendment No. 4 to Registration Statement on Form
S-1 (File No. 333-87325), filed on November 18, 1999
ITEM 9. UNDERTAKINGS.
A. Rule 415 offering. 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; and
(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 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 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining 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.
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B. Filings incorporating subsequent Exchange Act documents by
reference. 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 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. Incorporated annual and quarterly reports. 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 Rule 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.
D. Filing of registration on Form S-8. Insofar as indemnification for
liabilities arising under the Securities Act 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 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 for expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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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 State of New York on December 22, 1999.
OFFICIAL PAYMENTS CORPORATION
(Registrant)
By: /s/ Tom Evans
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Thomas R. Evans
Chairman and Chief
Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Tom Evans Chairman of the Board and Chief December 22, 1999
- ---------------------------- Executive Officer and Director
Thomas R. Evans (Principal Executive Officer)
/s/ Brian W. Nocco Chief Financial Officer and December 22, 1999
- ---------------------------- Director (Chief Financial and
Brian W. Nocco Accounting Officer)
President and Director ___________,_____
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Kenneth L. Stern
/s/ Andrew Cohan Director December 23, 1999
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Andrew Cohan
/s/ Christos Cotsakos Director January 10, 2000
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Christos Cotsakos
/s/ George L. Graziadio, Jr. Director December 22, 1999
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George L. Graziadio, Jr.
/s/ Vernon R. Loucks Director December 22, 1999
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Vernon Loucks
/s/ Lee E. Mikles Director December 22, 1999
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Lee E. Mikles
/s/ Bruce Nelson Director December 22, 1999
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Bruce Nelson
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[Letterhead of Cadwalader, Wickersham & Taft]
January 18, 2000
Official Payments Corporation
2333 San Ramon Valley Boulevard, Suite 450
San Ramon, CA 94583
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
We have acted as counsel to Official Payments Corporation, a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") of the Company's
Registration Statement on Form S-8 (the "Registration Statement"), relating to,
among other things, the offer and sale of up to an aggregate of 6,900,000 shares
(the "Shares") of its Common Stock, par value $.01 per share, issuable pursuant
to the Official Payments Corporation 1999 Stock Incentive Plan (the "Stock
Plan"). The Plan has been incorporated by reference as exhibits to the
Registration Statement.
In rendering the opinions set forth below, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate. Based upon the foregoing and upon such examination of law as we
have deemed necessary, we are of the opinion that (1) the Shares have been duly
authorized under the Company's Certificate of Incorporation and (2) when issued
and paid for as described in the Registration Statement, the Shares will be
validly issued, fully paid and nonassessable.
The opinions expressed herein are limited to the General Corporation Law of the
State of Delaware.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not thereby concede that
we are within the category of persons whose consent is required under the
Securities Act of 1933, as amended, or the Rules and Regulations of the
Commission thereunder.
Very truly yours,
Cadwalader, Wickersham & Taft
EXHIBIT 23.2
The Board of Directors
Official Payments Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG LLP
San Francisco, California
January 27, 2000
