As filed with the Securities and Exchange Commission on March 10, 1999
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
____________________________
PUBLICARD, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-0991870
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Post Road, Fairfield, Connecticut 06430
(Address of principal executive offices)
OPTION AGREEMENT DATED AS OF DECEMBER 14, 1998
BETWEEN PUBLICARD, INC. AND ZEHEV TADMOR
OPTION AGREEMENT DATED AS OF DECEMBER 22, 1998
BETWEEN PUBLICARD, INC. AND JOSEPH SARACHEK
OPTION AGREEMENT DATED AS OF JANUARY 6, 1999
BETWEEN PUBLICARD, INC. AND JOAN ERBER
OPTION AGREEMENT DATED AS OF JANUARY 6, 1999
BETWEEN PUBLICARD, INC. AND SONIA SORG
OPTION AGREEMENT DATED AS OF JANUARY 18, 1999
BETWEEN PUBLICARD, INC. AND RICHARD PHILLIMORE
AWARD AGREEMENT DATED AS OF DECEMBER 22, 1998
BETWEEN PUBLICARD, INC. AND JOSEPH SARACHEK
AWARD AGREEMENT DATED AS OF JANUARY 6, 1999
BETWEEN PUBLICARD, INC. AND RONALD WARNER
(Full title of Plans)
JAMES J. WEIS
President and Chief Executive Officer
PubliCARD, Inc.
One Post Road
Fairfield, Connecticut 06430
(Name and address of agent for service)
(203) 254-3900
(Telephone number, including area code, of agent for service)
Copies to:
JOEL I. GREENBERG, ESQ.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000
__________________________________
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to registered offering price aggregate registration
be registered per unit offering price fee
Common Stock,
par value $.10
per share 25,000(1) $7.75 $193,750(2) $53.86
Common Stock,
par value $.10
per share 25,000(3) $8.25 $206,250(2) $57.34
Common Stock,
par value $.10
per share 4,000(4) $5.50 $22,000(2) $6.11
Common Stock,
par value $.10
per share 200,000(5) $5.50 $1,100,000(2) $305.80
Common Stock
par value $.10
per share 10,000(6) $10.06(7) $100,600(7) $27.97
Common Stock,
par value
$.10 per share 5,000(8) $10.06(7) $50,300(7) $13.98
Totals 269,000 $1,672,900 $465.06
(1) Represents the total number of shares of Common Stock which may be
issued upon exercise of stock options granted under the Option Agreement
dated as of December 14, 1998 between PubliCARD, Inc. and Zehev Tadmor.
(2) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933, as amended (the "Securities Act"), based on the exercise price of
the options granted under the relevant Option Agreement.
(3) Represents the total number of shares of Common Stock which may be
issued upon exercise of stock options granted under the Option Agreement
dated as of December 22, 1998 between PubliCARD, Inc. and Joseph
Sarachek.
(4) Represents the total number of shares of Common Stock which may be
issued upon exercise of stock options granted under separate Option
Agreements dated as of January 6, 1999 between PubliCARD, Inc. and each
of (a) Joan Erber and (b) Sonia Sorg.
(5) Represents the total number of shares of Common Stock which may be
issued upon exercise of stock options granted under the Option Agreement
dated as of January 18, 1999 between PubliCARD, Inc. and Richard
Phillimore.
(6) Represents the total number of shares of Common Stock which may be
issued under the Award Agreement dated as of December 22, 1998 between
PubliCARD, Inc. and Joseph Sarachek.
(7) Computed in accordance with Rules 457(h)(1) and 457(c) under the
Securities Act based on the average of the high and low prices of a
share of Common Stock as of March 4, 1999 as reported on the Nasdaq
National Market.
(8) Represents the total number of shares of Common Stock which may be
issued under the Award Agreement dated as of January 6, 1999 between
PubliCARD, Inc. and Ronald Warner.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission by PubliCARD, Inc., a Pennsylvania corporation (the "Company"),
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference:
1.The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2.Amendment No. 1 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1997, on Form 10-K/A.
3.The Company's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1998, June 30, 1998 and September 30, 1998.
4.The Company's Current Reports on Form 8-K dated September
17, 1998, November 6, 1998, December 7, 1998 (as amended by the Company's
Current Report on Form 8-K/A dated February 5, 1999) February 26, 1999 and
March 8, 1999.
5.A description of the Company's Common Stock, par value $0.10
per share, which is included in a Registration Statement filed pursuant to the
Exchange Act, including any amendments or reports which are filed for the
purpose of updating such descriptions.
All documents filed by the Company after the date hereof pursuant
to Sections 13(a), 13(c), 14 and 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 then remaining
unsold, shall be deemed incorporated by reference herein and to be a part
hereof from the date of filing such documents.
Item 4.Description of Securities.
Not applicable.
Item 5.Interests of Named Experts and Counsel.
Not applicable.
Item 6.Indemnification of Directors and Officers.
The Pennsylvania Business Corporation Law (the "PBCL") permits a
corporation to indemnify its directors and officers against expenses,
judgments, fines and amounts paid in settlement incurred by them in connection
with any pending, threatened or completed action or proceeding (other than an
action by or in the right of the corporation (a "derivative action")), and
permits such indemnification against expenses incurred in connection with any
pending, threatened or completed derivative action, if the director or officer
has acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the corporation; and, with respect to
any criminal proceeding in a third-party action, had no reasonable cause to
believe his or her conduct was unlawful. The PBCL provides that expenses
incurred in defending any action or proceeding may be paid by the corporation
in advance of the final disposition upon receipt of an undertaking by or on
behalf of the director or officer to repay the amount if it is ultimately
determined that the director or officer is not entitled to be indemnified by
the corporation under Pennsylvania law.
Under the PBCL, the statutory provisions for indemnification and
advancement of expenses are non-exclusive with respect to any other rights,
such as contractual rights, to which a person seeking indemnification or
advancement of expenses may be entitled under the Company's By-laws or
otherwise. Such contractual or other rights may require indemnification
against judgments, fines and amounts paid in settlement incurred by the
indemnified person both in connection with derivative actions and third-party
actions, except where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful
misconduct or recklessness.
The PBCL permits a corporation to purchase and maintain insurance
on behalf of any director or officer of the corporation against any liability
asserted against the director or officer and incurred in such capacity,
whether or not the corporation would have the power to indemnify the director
or officer against such liability.
Under the Pennsylvania Associations Code, if a By-law adopted by
the stockholders so provides, a director shall not be personally liable, as
such, for monetary damages for any action taken or omitted unless the director
both (i) breached or failed to perform the duties of his or her office under
Pennsylvania law and (ii) the breach or failure constituted self dealing,
willful misconduct or recklessness.
Article V of the Company's By-laws provides for both the
limitation of the monetary liability of the directors of the Company and for
the mandatory indemnification of directors and officers.
Under Article V of the Company's By-laws, a director will not be
held personally liable to the Company, its stockholders or third parties for
monetary damages as a consequence of any act or omission unless the director
both (i) breached or failed to perform the duties of his or her office under
Pennsylvania law and (ii) the breach or failure constituted self dealing,
willful misconduct or recklessness.
In addition, under Article V of the Company's By-laws a director,
officer or, at the Board of Directors' discretion, employee or other person
who is or was serving in any capacity at the request of or for the benefit of
the Company, will be indemnified and held harmless by the Company for all
actions taken by him or her and for all failure to take action to the fullest
extent permitted by Pennsylvania law against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, taxes,
penalties and amounts paid or to be paid in settlement) actually and
reasonably incurred by such director, officer, employee or other person in
connection with any threatened, pending or completed action, suit or
proceeding (including, without limitation, an action, suit or proceeding by or
in the right of the Company), whether civil, criminal, administrative or
investigative. No indemnification is permitted where the act or failure to
act by the person seeking to be indemnified constitutes willful misconduct or
recklessness as determined by a court of competent jurisdiction.
The Company currently maintains directors' and officers'
liability insurance providing for coverage of up to $15,000,000. The
Company's assets and equity, however, may be called upon to provide
indemnification to officers and directors to the extent any indemnified amount
exceeds the Company's liability insurance limit, or to the extent any matter
required to be indemnified by the Company's By-laws falls outside the scope of
the policy's coverage.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), may be permitted to
directors and officers pursuant to the foregoing provisions, the Company has
been informed that, in the opinion of the Securities and Exchange Commission,
such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
No. Description
4.1 Amended and Restated Articles of Incorporation, amended and
restated through November 2, 1998, of the Company. Incorporated
by reference to the Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1998.
4.2 By-laws of the Company. Incorporated by reference to the
Company's Annual Report on Form 10-K, for the fiscal year ended
December 31, 1990.
4.3 Option Agreement, dated as of December 14, 1998, between
PubliCARD, Inc. and Zehev Tadmor.
4.4 Option Agreement, dated as of December 22, 1998, between
PubliCARD, Inc. and Joseph Sarachek.
4.5 Option Agreement, dated as of January 6, 1999, between PubliCARD,
Inc. and Joan Erber.
4.6 Option Agreement, dated as of January 6, 1999, between PubliCARD,
Inc. and Sonia Sorg.
4.7 Option Agreement, dated as of January 18, 1999, between
PubliCARD, Inc. and Richard Phillimore.
4.8 Award Agreement, dated as of December 22, 1998, between
PubliCARD, Inc. and Joseph Sarachek.
4.9 Award Agreement, dated as of January 6, 1999, between PubliCARD,
Inc. and Ronald Warner.
5.1 Opinion of Schnader Harrison Segal & Lewis LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Schnader Harrison Segal & Lewis LLP (included in
Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
Item 9.Undertakings.
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 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;
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 the initial bona fide
offering thereof; and
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.
4.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 (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 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.
5.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 Securities and Exchange
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 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.
<PAGE>
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 City of Fairfield, State of Connecticut on March 10, 1999.
PUBLICARD, INC.
By: /s/ James J. Weis
James J. Weis
President and Chief Executive Officer
Power of Attorney. Each person whose signature appears below hereby
authorizes each of James J. Weis and Antonio L. DeLise, as attorney-in-fact,
to sign and file on his behalf, individually and in each capacity stated
below, any post-effective amendment to this registration statement or any
registration statement relating to this offering.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the date indicated:
Date
/s/James J. Weis March 10, 1999
James J. Weis
Director, President and Chief Executive Officer
(principal executive officer)
/s/Antonio L. DeLise March 10, 1999
Antonio L. DeLise
Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/Harry I. Freund March 10, 1999
Harry I. Freund
Director and Chairman of the Board of Directors
/s/Jay S. Goldsmith March 10, 1999
Jay S. Goldsmith
Director and Vice Chairman of the Board of Directors
/s/Clifford B. Cohn March 10, 1999
Clifford B. Cohn
Director
/s/David L. Herman March 10, 1999
David L. Herman
Director
/s/L. G. Schafran March 10, 1999
L. G. Schafran
Director
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
4.1 Amended and Restated Articles of Incorporation, amended and
restated through November 2, 1998, of the Company. Incorporated
by reference to the Company's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 1998.
4.2 By-laws of the Company. Incorporated by reference to the
Company's Annual Report on Form 10-K, for the fiscal year ended
December 31, 1990.
4.3 Option Agreement, dated as of December 14, 1998, between
PubliCARD, Inc. and Zehev Tadmor.
4.4 Option Agreement, dated as of December 22, 1998, between
PubliCARD, Inc. and Joseph Sarachek.
4.5 Option Agreement, dated as of January 6, 1999, between PubliCARD,
Inc. and Joan Erber.
4.6 Option Agreement, dated as of January 6, 1999, between
PubliCARD, Inc. and Sonia Sorg.
4.7 Option Agreement, dated as of January 18, 1999, between
PubliCARD, Inc. and Richard Phillimore.
4.8 Award Agreement, dated as of December 22, 1998, between
PubliCARD, Inc. and Joseph Sarachek.
4.9 Award Agreement, dated as of January 6, 1999, between
PubliCARD, Inc. and Ronald Warner.
5.1 Opinion of Schnader Harrison Segal & Lewis LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Schnader Harrison Segal & Lewis (included
in Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
<PAGE>
EXHIBIT 4.3
OPTION AGREEMENT
AGREEMENT, dated as of December 14, 1998, between
PubliCARD, Inc., a Pennsylvania corporation with offices at One Post
Road, Fairfield, Connecticut 06430 (the "Corporation"), and Zehev Tadmor
(the "Optionee").
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby
agree as follows:
1.The Optionee is hereby granted an option to purchase
from the Corporation, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 25,000 shares of common
stock, par value $.10 per share of the Corporation (the "Common Stock"),
at an exercise price equal to $7.75 per share (the "Exercise Price").
This option is not intended to be treated as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2.This option is immediately exercisable. The Optionee
may purchase all or any part of the shares then vested (but not
fractions of a share) to which this option relates, at such time or
times as he may desire, until this option expires. Unless sooner
terminated as provided in this Agreement, this option shall expire at
5:00 P.M. Eastern Time on December 14, 2003 (the "Expiration Time"), and
any shares not purchased on or before such date may not thereafter be
purchased hereunder.
3.The Optionee shall exercise the option by delivering
to the Corporation a written notice of exercise in substantially the
form attached hereto as Exhibit A. Common Stock purchased pursuant to
this Agreement shall be paid for in full in cash at the time of purchase
or in shares of Common Stock surrendered to the Corporation or in a
combination of cash and such shares. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value (as defined in
this Section 3 below) on the date of exercise. Upon receipt of payment
and written notice of exercise, the Corporation shall deliver, without
stock transfer tax to the Optionee or other person entitled to exercise
the option, to the person exercising the option, a certificate or
certificates for such shares. It shall be a condition to the
performance of the Corporation's obligation to issue or transfer Common
Stock upon exercise of this option that the person exercising this
option pay, or make provision satisfactory to the Corporation for the
payment of, any taxes (other than stock transfer taxes) which the
Corporation is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise (including any federal, state or
local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a
share of Common Stock shall mean the per share value of the Common
Stock as of a given date, determined as follows:
(a)If the Common Stock is listed or admitted for trading
on the New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common Stock is
the average of the closing quotations for such stock based on
composite transactions for the New York Stock Exchange (or if not
listed on it, such other national securities exchange) for the
five Trading Days (as defined below) ending at the close of
business on the day prior to such given date.
(b)If the Common Stock is not traded on any national
securities exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market Value of the
Common Stock is the average of the last sales price (if the stock
is listed as a national market issue under the NASDAQ System) or
the mean between the closing representative bid and asked prices
(in all other cases) for the stock as reported by the NASDAQ
System (or such similar quotation system) for the five Trading
Days ending at the close of business on the day prior to such
given date.
(c)If neither clause (a) nor clause (b) of this
definition is applicable, the Fair Market Value of the Common
Stock is the fair market value per share as of such valuation
date, as determined by the Board of Directors of the Corporation
in good faith and in accordance with uniform principles
consistently applied.
(d)"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any business day.
4.The Corporation hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of the option
such number of shares of its Common Stock as shall be required for
issuance and delivery upon the exercise of the option, and that such
shares, when issued in accordance with the terms of this Agreement,
shall be validly issued, fully paid, and non-assessable. The
Corporation covenants and agrees that it will from time to time take all
such action as may be necessary to assure that the par value per share
of the Common Stock is at all times equal to or less than the then
effective Exercise Price of the option.
5.This option is not transferable other than by will or
the laws of descent and distribution. Any other transfer of this option
(including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or
equitable, of the option) shall be null and void and of no effect. Any
shares issued pursuant to this option shall not be registered under the
Securities Act of 1933, as amended (the "Act"). The Optionee may not
sell or otherwise dispose of such shares in the
absence of either a registration statement under the Act or an exemption
from the registration provisions thereunder, with respect to which the
Optionee shall have delivered to the Corporation an opinion of counsel,
in form satisfactory to the Corporation, that, under the circumstances,
registration is not required. The certificates representing such shares
shall bear a legend as follows:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 and may not be transferred in the
absence of either an effective registration
statement under the Securities Act of 1933, as
amended (the "Act") with respect to such
shares, or an exemption from the registration
provisions of the Act, with respect to which
the Corporation shall have received an opinion
of counsel, in form satisfactory to it, that,
under the circumstances, registration under
the Act is not required.
6.This option shall be exercisable during the life of
the Optionee only by the Optionee and the Optionee's guardian or legal
representative and after death only by the Optionee's legal
representative. Notwithstanding the following provisions of this
Section 6, no option shall be exercisable after the Expiration Time.
If the Optionee's consulting arrangement or employment
with the Corporation terminates for any reason other than (i) Cause (as
defined below), (ii) death or (iii) Retirement (as defined below), the
option may be exercised (to the extent it was exercisable immediately
preceding such termination) until 30 days after the date of such
termination. If the option was not exercisable immediately preceding
such termination of employment, the option shall terminate upon such
termination of employment.
If the Optionee's consulting arrangement or employment
with the Corporation is terminated for Cause, the option shall terminate
immediately upon such termination of the consulting arrangement or
employment, regardless of whether the option was exercisable immediately
preceding such termination of employment. For the purposes of this
Agreement, the term "Cause" shall mean (1) the willful failure by the
Optionee to perform his required duties to the Corporation in any
material respect, (2) gross negligence in the performance of his
required duties to the Corporation, (3) the commission of a felony by
the Optionee under the laws of the United States or any state thereof or
any foreign country or subdivision thereof (whether or not in connection
with his employment), (4) the willful engaging in misconduct by the
Optionee which is materially injurious to the Subsidiary, monetarily or
otherwise, (5) breach of any confidential information, non-competition
or employee inventions provisions contained in any employment contract,
if any, entered into by the Optionee and (6) substance abuse,
alcoholism, excessive use of alcoholic products and any use of a
narcotic or controlled substance (other than as duly prescribed
medication).
Upon termination of the Optionee's consulting
arrangement or employment due to retirement at age 60 or older or
disability (as hereinafter defined) (collectively, "Retirement"), the
Optionee may exercise the option (to the extent it was exercisable
immediately preceding such termination) until the expiration of three
years after the date of such termination of employment (the "Retirement
Expiration Time") . If the option was not exercisable immediately
preceding such termination of employment, the option shall terminate
upon such termination of employment.
Upon the death of the Optionee (i) while in active
service with the Corporation or, (ii) if the Optionee's consulting
arrangement or employment with the Corporation had terminated due to
Retirement and the death of the Optionee occurred prior to the
Retirement Expiration Time, the person or persons to whom the Optionee's
rights under the option are transferred by will or the laws of descent
and distribution may exercise the option until the expiration of 12
months after the date of the Optionee's death, but only to the extent
the option was exercisable immediately preceding the Optionee's death.
If the option was not exercisable immediately preceding the Optionee's
death, the option shall terminate upon the Optionee's death.
For purposes of this Section 6, leaves of absence shall not
be deemed terminations or interruptions of employment and the term
"disability" shall have the meaning provided in Section 22(e)(3) of the
Code.
7.If dividends payable in Common Stock during any fiscal
year of the Corporation exceed an aggregate of 5% of the Common Stock
issued and outstanding at the beginning of such fiscal year, or if,
during any fiscal year of the Corporation, there is one or more splits,
subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 5% of the shares outstanding at the
beginning of the year, the number of shares available under this option
shall be increased or decreased proportionately, as the case may be,
without change in the aggregate exercise price. Common Stock dividends,
splits, subdivisions, or combinations during any fiscal year which do
not exceed, in the aggregate, 5% of the Common Stock issued and
outstanding at the beginning of such year shall be ignored for purposes
of this option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with
another corporation, or in case the property or stock of the Corporation
is acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8.The grant and exercise of this option, and the
Corporation's obligation to sell and deliver shares upon the exercise of
this option, shall be subject to the requirement that, if at any time
the Board of Directors of the Corporation shall determine, in its
discretion, that the listing, registration or qualification of the
shares issuable or transferable upon exercise thereof upon any
securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of this option,
the issue, transfer, or purchase of shares thereunder may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors of the
Corporation. The Corporation shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of the
Securities Act of 1933, as amended or any state securities law.
9.This Agreement shall not give the Optionee any right
with respect to continuance as a consultant or an employee of the
Corporation, nor shall it be a limitation in any way on any legal right
which the Board of Directors of the Corporation, the Corporation's
stockholders or an officer of the Corporation may have to terminate the
Optionee as an employee at any time.
10.The Optionee shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise of the
option until the date a stock certificate is issued to the Optionee for
such shares, and, except as otherwise expressly provided in this
Agreement, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.
11.All notices hereunder shall be in writing, and if to
the Corporation, shall be delivered personally to the Secretary of the
Corporation or mailed to the address provided in the preamble of this
Agreement, addressed to the attention of the Secretary, and if to the
Optionee, shall be delivered personally or mailed to the Optionee at the
address provided in the preamble of this Agreement. Such addresses may
be changed at any time by notice from one party to the other.
12.All decisions or interpretations made by the Board of
Directors of the Corporation with regard to any question arising
hereunder shall be binding and conclusive on the Corporation and the
Optionee.
13.This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Corporation
and, to the extent provided in Sections 6 and 8, the executors,
administrators, legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Name: Antonio L. DeLise
Title: Vice President
/s/ Zehev Tadmor
Zehev Tadmor
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
December 14, 1998 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder,
_______ shares of the Common Stock (the "Shares") of the Corporation
covered by said Option Agreement and herewith makes payment in full
therefor pursuant to Section 3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement
under the Securities Act of 1933, as amended, covering the shares is in
effect or, in the opinion of counsel to the Company, an exemption from
such registration is available, and (ii) hereby acknowledges that the
number of shares hereafter subject to the Option Agreement referred to
above is hereafter reduced by the number of shares which I have hereby
elected to purchase.
Very truly yours,
_______________________________________
Zehev Tadmor
Social Security Number:____________________
Address:___________________________
___________________________________
Dated: ____________________________
<PAGE>
EXHIBIT 4.4
OPTION AGREEMENT
AGREEMENT, dated as of December 22, 1998, between
PubliCARD, Inc., a Pennsylvania corporation with offices at One Post
Road, Fairfield, Connecticut 06430 (the "Corporation"), and Joseph
Sarachek (the "Optionee").
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby
agree as follows:
1.The Optionee is hereby granted an option to purchase
from the Corporation, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 25,000 shares of common
stock, par value $.10 per share of the Corporation (the "Common Stock"),
at an exercise price equal to $8.25 per share (the "Exercise Price").
This option is not intended to be treated as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2.This option shall become exercisable in accordance
with the following vesting schedule:
Number of options Vesting date
8,334 Immediately exercisable
8,333 December 22, 1999
8,333 December 22, 2000
The Optionee may purchase all or any part of the shares then vested (but
not fractions of a share) to which this option relates, at such time or
times as he may desire, until this option expires. Unless sooner
terminated as provided in this Agreement, this option shall expire at
5:00 P.M. Eastern Time on December 22, 2003 (the "Expiration Time"), and
any shares not purchased on or before such date may not thereafter be
purchased hereunder.
3.The Optionee shall exercise the option by delivering
to the Corporation a written notice of exercise in substantially the
form attached hereto as Exhibit A. Common Stock purchased pursuant to
this Agreement shall be paid for in full in cash at the time of purchase
or in shares of Common Stock surrendered to the Corporation or in a
combination of cash and such shares. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value (as defined in
this Section 3 below) on the date of exercise. Upon receipt of payment
and written notice of exercise, the Corporation shall deliver, without
stock transfer tax to the Optionee or other person entitled to exercise
the option, to the person exercising the option, a certificate or
certificates for such shares. It shall be a condition to the
performance of the Corporation's obligation to issue or transfer Common
Stock upon exercise of this option that the person exercising this
option pay, or make provision satisfactory to the Corporation for the
payment of, any taxes (other than stock transfer taxes) which the
Corporation is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise (including any federal, state or
local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a
share of Common Stock shall mean the per share value of the Common
Stock as of a given date, determined as follows:
(a)If the Common Stock is listed or admitted for trading
on the New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common Stock is
the average of the closing quotations for such stock based on
composite transactions for the New York Stock Exchange (or if not
listed on it, such other national securities exchange) for the
five Trading Days (as defined below) ending at the close of
business on the day prior to such given date.
(b)If the Common Stock is not traded on any national
securities exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market Value of the
Common Stock is the average of the last sales price (if the stock
is listed as a national market issue under the NASDAQ System) or
the mean between the closing representative bid and asked prices
(in all other cases) for the stock as reported by the NASDAQ
System (or such similar quotation system) for the five Trading
Days ending at the close of business on the day prior to such
given date.
(c)If neither clause (a) nor clause (b) of this
definition is applicable, the Fair Market Value of the Common
Stock is the fair market value per share as of such valuation
date, as determined by the Board of Directors of the Corporation
in good faith and in accordance with uniform principles
consistently applied.
(d)"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any business day.
4.The Corporation hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of the option
such number of shares of its Common Stock as shall be required for
issuance and delivery upon the exercise of the option, and that such
shares, when issued in accordance with the terms of this Agreement,
shall be validly issued, fully paid, and non-assessable. The
Corporation covenants and agrees that it will from time to time take all
such action as may be necessary to assure that the par value per share
of the Common Stock is at all times equal to or less than the then
effective Exercise Price of the option.
5.This option is not transferable other than by will or
the laws of descent and distribution. Any other transfer of this option
(including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or
equitable, of the option) shall be null and void and of no effect. Any
shares issued pursuant to this option shall not be registered under the
Securities Act of 1933, as amended (the "Act"). The Optionee may not
sell or otherwise dispose of such shares in the absence of either a
registration statement under the Act or an exemption from the
registration provisions thereunder, with respect to which the Optionee
shall have delivered to the Corporation an opinion of counsel, in form
satisfactory to the Corporation, that, under the circumstances,
registration is not required. The certificates representing such shares
shall bear a legend as follows:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 and may not be transferred in the
absence of either an effective registration
statement under the Securities Act of 1933, as
amended (the "Act") with respect to such
shares, or an exemption from the registration
provisions of the Act, with respect to which
the Corporation shall have received an opinion
of counsel, in form satisfactory to it, that,
under the circumstances, registration under
the Act is not required.
6.This option shall be exercisable during the life of
the Optionee only by the Optionee and the Optionee's guardian or legal
representative and after death only by the Optionee's legal
representative. Notwithstanding the following provisions of this
Section 6, no option shall be exercisable after the Expiration Time.
If the Optionee's consulting arrangement or employment
with the Corporation terminates for any reason other than (i) Cause (as
defined below), (ii) death or (iii) Retirement (as defined below), the
option may be exercised (to the extent it was exercisable immediately
preceding such termination) until 30 days after the date of such
termination. If the option was not exercisable immediately preceding
such termination of employment, the option shall terminate upon such
termination of employment.
If the Optionee's consulting arrangement or employment
with the Corporation is terminated for Cause, the option shall terminate
immediately upon such termination of the consulting arrangement or
employment, regardless of whether the option was exercisable immediately
preceding such termination of employment. For the purposes of this
Agreement, the term "Cause" shall mean (1) the willful failure by the
Optionee to perform his required duties to the Corporation in any
material respect, (2) gross negligence in the performance of his
required duties to the Corporation, (3) the commission of a felony by
the Optionee under the laws of the United States or any state thereof or
any foreign country or subdivision thereof (whether or not in connection
with his employment), (4) the willful engaging in misconduct by the
Optionee which is materially injurious to the Subsidiary, monetarily or
otherwise, (5) breach of any confidential information, non-competition
or employee inventions provisions contained in any employment contract,
if any, entered into by the Optionee and (6) substance abuse,
alcoholism, excessive use of alcoholic products and any use of a
narcotic or controlled substance (other than as duly prescribed
medication).
Upon termination of the Optionee's consulting
arrangement or employment due to retirement at age 60 or older or
disability (as hereinafter defined) (collectively, "Retirement"), the
Optionee may exercise the option (to the extent it was exercisable
immediately preceding such termination) until the expiration of three
years after the date of such termination of employment (the "Retirement
Expiration Time") . If the option was not exercisable immediately
preceding such termination of employment, the option shall terminate
upon such termination of employment.
Upon the death of the Optionee (i) while in active
service with the Corporation or, (ii) if the Optionee's consulting
arrangement or employment with the Corporation had terminated due to
Retirement and the death of the Optionee occurred prior to the
Retirement Expiration Time, the person or persons to whom the Optionee's
rights under the option are transferred by will or the laws of descent
and distribution may exercise the option until the expiration of 12
months after the date of the Optionee's death, but only to the extent
the option was exercisable immediately preceding the Optionee's death.
If the option was not exercisable immediately preceding the Optionee's
death, the option shall terminate upon the Optionee's death.
For purposes of this Section 6, leaves of absence shall not
be deemed terminations or interruptions of employment and the term
"disability" shall have the meaning provided in Section 22(e)(3) of the
Code.
7.If dividends payable in Common Stock during any fiscal
year of the Corporation exceed an aggregate of 5% of the Common Stock
issued and outstanding at the beginning of such fiscal year, or if,
during any fiscal year of the Corporation, there is one or more splits,
subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 5% of the shares outstanding at the
beginning of the year, the number of shares available under this option
shall be increased or decreased proportionately, as the case may be,
without change in the aggregate exercise price. Common Stock dividends,
splits, subdivisions, or combinations during any fiscal year which do
not exceed, in the aggregate, 5% of the Common Stock issued and
outstanding at the beginning of such year shall be ignored for purposes
of this option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with
another corporation, or in case the property or stock of the Corporation
is acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8.The grant and exercise of this option, and the
Corporation's obligation to sell and deliver shares upon the exercise of
this option, shall be subject to the requirement that, if at any time
the Board of Directors of the Corporation shall determine, in its
discretion, that the listing, registration or qualification of the
shares issuable or transferable upon exercise thereof upon any
securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of this option,
the issue, transfer, or purchase of shares thereunder may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors of the
Corporation. The Corporation shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of the
Securities Act of 1933, as amended or any state securities law.
9.This Agreement shall not give the Optionee any right
with respect to continuance as a consultant or an employee of the
Corporation, nor shall it be a limitation in any way on any legal right
which the Board of Directors of the Corporation, the Corporation's
stockholders or an officer of the Corporation may have to terminate the
Optionee as an employee at any time.
10.The Optionee shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise of the
option until the date a stock certificate is issued to the Optionee for
such shares, and, except as otherwise expressly provided in this
Agreement, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.
11.All notices hereunder shall be in writing, and if to
the Corporation, shall be delivered personally to the Secretary of the
Corporation or mailed to the address provided in the preamble of this
Agreement, addressed to the attention of the Secretary, and if to the
Optionee, shall be delivered personally or mailed to the Optionee at the
address provided in the preamble of this Agreement. Such addresses may
be changed at any time by notice from one party to the other.
12.All decisions or interpretations made by the Board of
Directors of the Corporation with regard to any question arising
hereunder shall be binding and conclusive on the Corporation and the
Optionee.
13.This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Corporation
and, to the extent provided in Sections 6 and 8, the executors,
administrators, legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Name: Antonio L. DeLise
Title: Vice President
/s/ Joseph Sarachek
Joseph Sarachek
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
December 22, 1998 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder,
_______ shares of the Common Stock (the "Shares") of the Corporation
covered by said Option Agreement and herewith makes payment in full
therefor pursuant to Section 3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement
under the Securities Act of 1933, as amended, covering the shares is in
effect or, in the opinion of counsel to the Company, an exemption from
such registration is available, and (ii) hereby acknowledges that the
number of shares hereafter subject to the Option Agreement referred to
above is hereafter reduced by the number of shares which I have hereby
elected to purchase.
Very truly yours,
_______________________________________
Joseph Sarachek
Social Security Number:____________________
Address:___________________________
__________________________________
Dated: _______________________
<PAGE>
EXHIBIT 4.5
OPTION AGREEMENT
AGREEMENT, dated as of January 6, 1999, between PubliCARD,
Inc., a Pennsylvania corporation with offices at One Post Road,
Fairfield, Connecticut 06430 (the "Corporation"), and Joan Erber
("Optionee").
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby
agree as follows:
1.The Optionee is hereby granted an option to purchase
from the Corporation, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 1,500 shares of common
stock, par value $.10 per share of the Corporation (the "Common Stock"),
at an exercise price equal to $5.50 per share (the "Exercise Price").
This option is not intended to be treated as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2.This option is immediately exercisable. The Optionee
may purchase all or any part of the shares then vested (but not
fractions of a share) to which this option relates, at such time or
times as he may desire, until this option expires. Unless sooner
terminated as provided in this Agreement, the options granted shall
expire at 5:00 P.M. Eastern Time on January 6, 2004 (the "Expiration
Time"), and any shares not purchased on or before such date may not
thereafter be purchased hereunder.
3.The Optionee shall exercise the option by delivering
to the Corporation a written notice of exercise in substantially the
form attached hereto as Exhibit A. Common Stock purchased pursuant to
this Agreement shall be paid for in full in cash at the time of purchase
or in shares of Common Stock surrendered to the Corporation or in a
combination of cash and such shares. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value (as defined in
this Section 3 below) on the date of exercise. Upon receipt of payment
and written notice of exercise, the Corporation shall deliver, without
stock transfer tax to the Optionee or other person entitled to exercise
the option, to the person exercising the option, a certificate or
certificates for such shares. It shall be a condition to the
performance of the Corporation's obligation to issue or transfer Common
Stock upon exercise of this option that the person exercising this
option pay, or make provision satisfactory to the Corporation for the
payment of, any taxes (other than stock transfer taxes) which the
Corporation is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise (including any federal, state or
local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a
share of Common Stock shall mean the per share value of the Common
Stock as of a given date, determined as follows:
(a)If the Common Stock is listed or admitted for trading
on the New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common Stock is
the average of the closing quotations for such stock based on
composite transactions for the New York Stock Exchange (or if not
listed on it, such other national securities exchange) for the
five Trading Days (as defined below) ending at the close of
business on the day prior to such given date.
(b)If the Common Stock is not traded on any national
securities exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market Value of the
Common Stock is the average of the last sales price (if the stock
is listed as a national market issue under the NASDAQ System) or
the mean between the closing representative bid and asked prices
(in all other cases) for the stock as reported by the NASDAQ
System (or such similar quotation system) for the five Trading
Days ending at the close of business on the day prior to such
given date.
(c)If neither clause (a) nor clause (b) of this
definition is applicable, the Fair Market Value of the Common
Stock is the fair market value per share as of such valuation
date, as determined by the Board of Directors of the Corporation
in good faith and in accordance with uniform principles
consistently applied.
(d)"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any business day.
4.The Corporation hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of the option
such number of shares of its Common Stock as shall be required for
issuance and delivery upon the exercise of the option, and that such
shares, when issued in accordance with the terms of this Agreement,
shall be validly issued, fully paid, and non-assessable. The
Corporation covenants and agrees that it will from time to time take all
such action as may be necessary to assure that the par value per share
of the Common Stock is at all times equal to or less than the then
effective Exercise Price of the option.
5.This option is not transferable other than by will or
the laws of descent and distribution. Any other transfer of this option
(including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or
equitable, of the option) shall be null and void and of no effect. Any
shares issued pursuant to this option shall not be registered under the
Securities Act of 1933, as amended (the "Act"). The Optionee may not
sell or otherwise dispose of such shares in the absence of either a
registration statement under the Act or an exemption from the
registration provisions thereunder, with respect to which the Optionee
shall have delivered to the Corporation an opinion of counsel, in form
satisfactory to the Corporation, that, under the circumstances,
registration is not required. The certificates representing such shares
shall bear a legend as follows:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 and may not be transferred in the
absence of either an effective registration
statement under the Securities Act of 1933, as
amended (the "Act") with respect to such
shares, or an exemption from the registration
provisions of the Act, with respect to which
the Corporation shall have received an opinion
of counsel, in form satisfactory to it, that,
under the circumstances, registration under
the Act is not required.
6.This option shall be exercisable during the life of
the Optionee only by the Optionee and the Optionee's guardian or legal
representative and after death only by the Optionee's legal
representative. Notwithstanding the following provisions of this
Section 6, no option shall be exercisable after the Expiration Time.
If the Optionee's consulting arrangement or employment with
the Corporation terminates for any reason other than (i) Cause (as
defined below), (ii) death or (iii) Retirement (as defined below), the
option may be exercised (to the extent it was exercisable immediately
preceding such termination) until 30 days after the date of such
termination. If the option was not exercisable immediately preceding
such termination of employment, the option shall terminate upon such
termination of employment.
If the Optionee's consulting arrangement or employment with
the Corporation is terminated for Cause, the option shall terminate
immediately upon such termination of the consulting arrangement or
employment, regardless of whether the option was exercisable immediately
preceding such termination of employment. For the purposes of this
Agreement, the term "Cause" shall mean (1) the willful failure by the
Optionee to perform his required duties to the Corporation in any
material respect, (2) gross negligence in the performance of his
required duties to the Corporation, (3) the commission of a felony by
the Optionee under the laws of the United States or any state thereof or
any foreign country or subdivision thereof (whether or not in connection
with his employment), (4) the willful engaging in misconduct by the
Optionee which is materially injurious to the Subsidiary, monetarily or
otherwise, (5) breach of any confidential information, non-competition
or employee inventions provisions contained in any employment contract,
if any, entered into by the Optionee and (6) substance abuse,
alcoholism, excessive use of alcoholic products and any use of a
narcotic or controlled substance (other than as duly prescribed
medication).
Upon termination of the Optionee's consulting arrangement
or employment due to retirement at age 60 or older or disability (as
hereinafter defined) (collectively, "Retirement"), the Optionee may
exercise the option (to the extent it was exercisable immediately
preceding such termination) until the expiration of three years after
the date of such termination of employment (the "Retirement Expiration
Time") . If the option was not exercisable immediately preceding such
termination of employment, the option shall terminate upon such
termination of employment.
Upon the death of the Optionee (i) while in active service
with the Corporation or, (ii) if the Optionee's consulting arrangement
or employment with the Corporation had terminated due to Retirement and
the death of the Optionee occurred prior to the Retirement Expiration
Time, the person or persons to whom the Optionee's rights under the
option are transferred by will or the laws of descent and distribution
may exercise the option until the expiration of 12 months after the date
of the Optionee's death, but only to the extent the option was
exercisable immediately preceding the Optionee's death. If the option
was not exercisable immediately preceding the Optionee's death, the
option shall terminate upon the Optionee's death.
For purposes of this Section 6, leaves of absence shall not
be deemed terminations or interruptions of employment and the term
"disability" shall have the meaning provided in Section 22(e)(3) of the
Code.
7.If dividends payable in Common Stock during any fiscal
year of the Corporation exceed an aggregate of 5% of the Common Stock
issued and outstanding at the beginning of such fiscal year, or if,
during any fiscal year of the Corporation, there is one or more splits,
subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 5% of the shares outstanding at the
beginning of the year, the number of shares available under this option
shall be increased or decreased proportionately, as the case may be,
without change in the aggregate exercise price. Common Stock dividends,
splits, subdivisions, or combinations during any fiscal year which do
not exceed, in the aggregate, 5% of the Common Stock issued and
outstanding at the beginning of such year shall be ignored for purposes
of this option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with
another corporation, or in case the property or stock of the Corporation
is acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8.Following a Change in Control (as defined below) this
option shall automatically become exercisable in full (if not already
exercisable in full) upon the occurrence of either of the following
events:
(a)A significant change in the nature or scope of the
authorities, powers, functions, or duties normally attached to
the Optionee's consulting arrangement or position with the
Corporation within a two-year period after a Change in Control,
and the Optionee terminates his consulting arrangement or
employment with the Corporation within 90 days after such
change duties; or
(b)termination of the Optionee's consulting arrangement or
employment by the Corporation without Cause within a two-year
period after a Change in Control.
In either of such events, notwithstanding the provisions of
Section 6 of this Agreement, the Optionee may exercise the
option, within three years after the date of such termination
of employment (but not later than the Expiration Time);
provided, however, that upon the death of the Optionee within
this three-year period, the person or persons to whom the
Optionee's rights are transferred by will or the laws of
descent and distribution may exercise the option (to the extent
it was exercisable on the date of the Optionee's death) within
12 months after the date of the Optionee's death (but not later
than the Expiration Time). If the option was not exercisable
immediately preceding the Optionee's death, the option shall
terminate upon the Optionee's death.
For purposes of this Agreement, "Change in Control" shall be
deemed to occur:
(i)if any person within the meaning of Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), other than the Corporation or any of its
subsidiaries, has become the beneficial owner, within the
meaning of Rule 13d-3 under the Exchange Act, of 25 percent or
more of the combined voting power of the Corporation's then
outstanding voting securities, provided, however, that for
purposes hereof, no Change in Control shall be deemed to have
occurred if prior to the acquisition of 25 percent of the
combined voting power of the Corporation's then outstanding
voting securities, the full Board of Directors of the
Corporation shall have adopted, by not less than a two-thirds
vote, a resolution specifically approving such acquisition; or
(ii)when a majority of the directors of the Corporation elected at
any special or annual meeting of stockholders are not individuals
nominated by the Corporation's incumbent Board of Directors or
when individuals who are members of the Corporation's Board of
Directors at any one time shall immediately thereafter cease to
constitute a majority of the Corporation's Board of Directors.
9.The grant and exercise of this option, and the
Corporation's obligation to sell and deliver shares upon the exercise of
this option, shall be subject to the requirement that, if at any time
the Board of Directors of the Corporation shall determine, in its
discretion, that the listing, registration or qualification of the
shares issuable or transferable upon exercise thereof upon any
securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of this option,
the issue, transfer, or purchase of shares thereunder may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors of the
Corporation. The Corporation shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of the
Securities Act of 1933, as amended or any state securities law.
10.This Agreement shall not give the Optionee any right
with respect to continuance as a consultant or an employee of the
Corporation, nor shall it be a limitation in any way on any legal right
which the Board of Directors of the Corporation, the Corporation's
stockholders or an officer of the Corporation may have to terminate the
Optionee as an employee at any time.
11.The Optionee shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise of the
option until the date a stock certificate is issued to the Optionee for
such shares, and, except as otherwise expressly provided in this
Agreement, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.
12.All notices hereunder shall be in writing, and if to
the Corporation, shall be delivered personally to the Secretary of the
Corporation or mailed to the address provided in the preamble of this
Agreement, addressed to the attention of the Secretary, and if to the
Optionee, shall be delivered personally or mailed to the Optionee at the
address provided in the preamble of this Agreement. Such addresses may
be changed at any time by notice from one party to the other.
13.All decisions or interpretations made by the Board of
Directors of the Corporation with regard to any question arising
hereunder shall be binding and conclusive on the Corporation and the
Optionee.
14.This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Corporation
and, to the extent provided in Sections 6 and 8, the executors,
administrators, legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Name: Antonio L. DeLise
Title: Vice President
/s/ Joan Erber
Joan Erber
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
January 6, 1999 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder,
_______ shares of the Common Stock (the "Shares") of the Corporation
covered by said Option Agreement and herewith makes payment in full
therefor pursuant to Section 3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement
under the Securities Act of 1933, as amended, covering the shares is in
effect or, in the opinion of counsel to the Company, an exemption from
such registration is available, and (ii) hereby acknowledges that the
number of shares hereafter subject to the Option Agreement referred to
above is hereafter reduced by the number of shares which I have hereby
elected to purchase.
Very truly yours,
_______________________________________
Joan Erber
Social Security Number:____________________
Address:___________________________
___________________________________
Dated: _______________________<PAGE>
EXHIBIT 4.6
OPTION AGREEMENT
AGREEMENT, dated as of January 6, 1999, between PubliCARD,
Inc., a Pennsylvania corporation with offices at One Post Road,
Fairfield, Connecticut 06430 (the "Corporation"), and Sonia Sorg
("Optionee").
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby
agree as follows:
1.The Optionee is hereby granted an option to purchase
from the Corporation, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 2,500 shares of common
stock, par value $.10 per share of the Corporation (the "Common Stock"),
at an exercise price equal to $5.50 per share (the "Exercise Price").
This option is not intended to be treated as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2.This option is immediately exercisable. The Optionee
may purchase all or any part of the shares then vested (but not
fractions of a share) to which this option relates, at such time or
times as he may desire, until this option expires. Unless sooner
terminated as provided in this Agreement, the options granted shall
expire at 5:00 P.M. Eastern Time on January 6, 2004 (the "Expiration
Time"), and any shares not purchased on or before such date may not
thereafter be purchased hereunder.
3.The Optionee shall exercise the option by delivering
to the Corporation a written notice of exercise in substantially the
form attached hereto as Exhibit A. Common Stock purchased pursuant to
this Agreement shall be paid for in full in cash at the time of purchase
or in shares of Common Stock surrendered to the Corporation or in a
combination of cash and such shares. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value (as defined in
this Section 3 below) on the date of exercise. Upon receipt of payment
and written notice of exercise, the Corporation shall deliver, without
stock transfer tax to the Optionee or other person entitled to exercise
the option, to the person exercising the option, a certificate or
certificates for such shares. It shall be a condition to the
performance of the Corporation's obligation to issue or transfer Common
Stock upon exercise of this option that the person exercising this
option pay, or make provision satisfactory to the Corporation for the
payment of, any taxes (other than stock transfer taxes) which the
Corporation is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise (including any federal, state or
local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a
share of Common Stock shall mean the per share value of the Common
Stock as of a given date, determined as follows:
(a)If the Common Stock is listed or admitted for trading
on the New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common Stock is
the average of the closing quotations for such stock based on
composite transactions for the New York Stock Exchange (or if not
listed on it, such other national securities exchange) for the
five Trading Days (as defined below) ending at the close of
business on the day prior to such given date.
(b)If the Common Stock is not traded on any national
securities exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market Value of the
Common Stock is the average of the last sales price (if the stock
is listed as a national market issue under the NASDAQ System) or
the mean between the closing representative bid and asked prices
(in all other cases) for the stock as reported by the NASDAQ
System (or such similar quotation system) for the five Trading
Days ending at the close of business on the day prior to such
given date.
(c)If neither clause (a) nor clause (b) of this
definition is applicable, the Fair Market Value of the Common
Stock is the fair market value per share as of such valuation
date, as determined by the Board of Directors of the Corporation
in good faith and in accordance with uniform principles
consistently applied.
(d)"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any business day.
4.The Corporation hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of the option
such number of shares of its Common Stock as shall be required for
issuance and delivery upon the exercise of the option, and that such
shares, when issued in accordance with the terms of this Agreement,
shall be validly issued, fully paid, and non-assessable. The
Corporation covenants and agrees that it will from time to time take all
such action as may be necessary to assure that the par value per share
of the Common Stock is at all times equal to or less than the then
effective Exercise Price of the option.
5.This option is not transferable other than by will or
the laws of descent and distribution. Any other transfer of this option
(including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or
equitable, of the option) shall be null and void and of no effect. Any
shares issued pursuant to this option shall not be registered under the
Securities Act of 1933, as amended (the "Act"). The Optionee may not
sell or otherwise dispose of such shares in the absence of either a
registration statement under the Act or an exemption from the
registration provisions thereunder, with respect to which the Optionee
shall have delivered to the Corporation an opinion of counsel, in form
satisfactory to the Corporation, that, under the circumstances,
registration is not required. The certificates representing such shares
shall bear a legend as follows:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 and may not be transferred in the
absence of either an effective registration
statement under the Securities Act of 1933, as
amended (the "Act") with respect to such
shares, or an exemption from the registration
provisions of the Act, with respect to which
the Corporation shall have received an opinion
of counsel, in form satisfactory to it, that,
under the circumstances, registration under
the Act is not required.
6.This option shall be exercisable during the life of
the Optionee only by the Optionee and the Optionee's guardian or legal
representative and after death only by the Optionee's legal
representative. Notwithstanding the following provisions of this
Section 6, no option shall be exercisable after the Expiration Time.
If the Optionee's consulting arrangement or employment with
the Corporation terminates for any reason other than (i) Cause (as
defined below), (ii) death or (iii) Retirement (as defined below), the
option may be exercised (to the extent it was exercisable immediately
preceding such termination) until 30 days after the date of such
termination. If the option was not exercisable immediately preceding
such termination of employment, the option shall terminate upon such
termination of employment.
If the Optionee's consulting arrangement or employment with
the Corporation is terminated for Cause, the option shall terminate
immediately upon such termination of the consulting arrangement or
employment, regardless of whether the option was exercisable immediately
preceding such termination of employment. For the purposes of this
Agreement, the term "Cause" shall mean (1) the willful failure by the
Optionee to perform his required duties to the Corporation in any
material respect, (2) gross negligence in the performance of his
required duties to the Corporation, (3) the commission of a felony by
the Optionee under the laws of the United States or any state thereof or
any foreign country or subdivision thereof (whether or not in connection
with his employment), (4) the willful engaging in misconduct by the
Optionee which is materially injurious to the Subsidiary, monetarily or
otherwise, (5) breach of any confidential information, non-competition
or employee inventions provisions contained in any employment contract,
if any, entered into by the Optionee and (6) substance abuse,
alcoholism, excessive use of alcoholic products and any use of a
narcotic or controlled substance (other than as duly prescribed
medication).
Upon termination of the Optionee's consulting arrangement
or employment due to retirement at age 60 or older or disability (as
hereinafter defined) (collectively, "Retirement"), the Optionee may
exercise the option (to the extent it was exercisable immediately
preceding such termination) until the expiration of three years after
the date of such termination of employment (the "Retirement Expiration
Time") . If the option was not exercisable immediately preceding such
termination of employment, the option shall terminate upon such
termination of employment.
Upon the death of the Optionee (i) while in active service
with the Corporation or, (ii) if the Optionee's consulting arrangement
or employment with the Corporation had terminated due to Retirement and
the death of the Optionee occurred prior to the Retirement Expiration
Time, the person or persons to whom the Optionee's rights under the
option are transferred by will or the laws of descent and distribution
may exercise the option until the expiration of 12 months after the date
of the Optionee's death, but only to the extent the option was
exercisable immediately preceding the Optionee's death. If the option
was not exercisable immediately preceding the Optionee's death, the
option shall terminate upon the Optionee's death.
For purposes of this Section 6, leaves of absence shall not
be deemed terminations or interruptions of employment and the term
"disability" shall have the meaning provided in Section 22(e)(3) of the
Code.
7.If dividends payable in Common Stock during any fiscal
year of the Corporation exceed an aggregate of 5% of the Common Stock
issued and outstanding at the beginning of such fiscal year, or if,
during any fiscal year of the Corporation, there is one or more splits,
subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 5% of the shares outstanding at the
beginning of the year, the number of shares available under this option
shall be increased or decreased proportionately, as the case may be,
without change in the aggregate exercise price. Common Stock dividends,
splits, subdivisions, or combinations during any fiscal year which do
not exceed, in the aggregate, 5% of the Common Stock issued and
outstanding at the beginning of such year shall be ignored for purposes
of this option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with
another corporation, or in case the property or stock of the Corporation
is acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8.Following a Change in Control (as defined below) this
option shall automatically become exercisable in full (if not already
exercisable in full) upon the occurrence of either of the following
events:
(a)A significant change in the nature or scope of the
authorities, powers, functions, or duties normally attached
to the Optionee's consulting arrangement or position with
the Corporation within a two-year period after a Change in
Control, and the Optionee terminates his consulting
arrangement or employment with the Corporation within 90
days after such change duties; or
(b)termination of the Optionee's consulting arrangement or
employment by the Corporation without Cause within a
two-year period after a Change in Control.
In either of such events, notwithstanding the provisions of
Section 6 of this Agreement, the Optionee may exercise the
option, within three years after the date of such
termination of employment (but not later than the Expiration
Time); provided, however, that upon the death of the
Optionee within this three-year period, the person or
persons to whom the Optionee's rights are transferred by
will or the laws of descent and distribution may exercise
the option (to the extent it was exercisable on the date of
the Optionee's death) within 12 months after the date of the
Optionee's death (but not later than the Expiration Time).
If the option was not exercisable immediately preceding the
Optionee's death, the option shall terminate upon the
Optionee's death.
For purposes of this Agreement, "Change in Control" shall be
deemed to occur:
(i)if any person within the meaning of Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), other than the Corporation or any of
its subsidiaries, has become the beneficial owner, within
the meaning of Rule 13d-3 under the Exchange Act, of 25
percent or more of the combined voting power of the
Corporation's then outstanding voting securities, provided,
however, that for purposes hereof, no Change in Control
shall be deemed to have occurred if prior to the acquisition
of 25 percent of the combined voting power of the
Corporation's then outstanding voting securities, the full
Board of Directors of the Corporation shall have adopted, by
not less than a two-thirds vote, a resolution specifically
approving such acquisition; or
(ii)when a majority of the directors of the Corporation elected
at any special or annual meeting of stockholders are not
individuals nominated by the Corporation's incumbent Board of
Directors or when individuals who are members of the
Corporation's Board of Directors at any one time shall
immediately thereafter cease to constitute a majority of the
Corporation's Board of Directors.
9.The grant and exercise of this option, and the
Corporation's obligation to sell and deliver shares upon the exercise of
this option, shall be subject to the requirement that, if at any time
the Board of Directors of the Corporation shall determine, in its
discretion, that the listing, registration or qualification of the
shares issuable or transferable upon exercise thereof upon any
securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of this option,
the issue, transfer, or purchase of shares thereunder may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors of the
Corporation. The Corporation shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of the
Securities Act of 1933, as amended or any state securities law.
10.This Agreement shall not give the Optionee any right
with respect to continuance as a consultant or an employee of the
Corporation, nor shall it be a limitation in any way on any legal right
which the Board of Directors of the Corporation, the Corporation's
stockholders or an officer of the Corporation may have to terminate the
Optionee as an employee at any time.
11.The Optionee shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise of the
option until the date a stock certificate is issued to the Optionee for
such shares, and, except as otherwise expressly provided in this
Agreement, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.
12.All notices hereunder shall be in writing, and if to
the Corporation, shall be delivered personally to the Secretary of the
Corporation or mailed to the address provided in the preamble of this
Agreement, addressed to the attention of the Secretary, and if to the
Optionee, shall be delivered personally or mailed to the Optionee at the
address provided in the preamble of this Agreement. Such addresses may
be changed at any time by notice from one party to the other.
13.All decisions or interpretations made by the Board of
Directors of the Corporation with regard to any question arising
hereunder shall be binding and conclusive on the Corporation and the
Optionee.
14.This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Corporation
and, to the extent provided in Sections 6 and 8, the executors,
administrators, legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Name: Antonio L. DeLise
Title: Vice President
/s/ Sonia Sorg
Sonia Sorg
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
January 6, 1999 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder,
_______ shares of the Common Stock (the "Shares") of the Corporation
covered by said Option Agreement and herewith makes payment in full
therefor pursuant to Section 3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement
under the Securities Act of 1933, as amended, covering the shares is in
effect or, in the opinion of counsel to the Company, an exemption from
such registration is available, and (ii) hereby acknowledges that the
number of shares hereafter subject to the Option Agreement referred to
above is hereafter reduced by the number of shares which I have hereby
elected to purchase.
Very truly yours,
_______________________________________
Sonia Sorg
Social Security Number:____________________
Address:___________________________
__________________________________
Dated: _______________________<PAGE>
EXHIBIT 4.7
OPTION AGREEMENT
AGREEMENT, dated as of January 18, 1999, between PubliCARD,
Inc., a Pennsylvania corporation with offices at One Post Road,
Fairfield, Connecticut 06430 (the "Corporation"), and Richard Phillimore
(the "Optionee").
NOW, THEREFORE, in consideration of the mutual covenants
and agreements herein contained and for other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, do hereby
agree as follows:
1.The Optionee is hereby granted an option to purchase
from the Corporation, subject to and under the terms and conditions set
forth in this Agreement, all or any part of 200,000 shares of common
stock, par value $.10 per share of the Corporation (the "Common Stock"),
at an exercise price equal to $5.50 per share (the "Exercise Price").
This option is not intended to be treated as an incentive stock option
under Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2.This option shall become exercisable in accordance
with the following vesting schedule:
Number of options Vesting date Expiration date
100,000 January 18, 2000 January 18, 2005
100,000 January 18, 2001 January 18, 2006
The Optionee may purchase all or any part of the shares then vested (but
not fractions of a share) to which this option relates, at such time or
times as he may desire, until this option expires. Unless sooner
terminated as provided in this Agreement, the options granted shall
expire at 5:00 P.M. Eastern Time on the five year anniversary of the
vesting date (the "Expiration Time"), and any shares not purchased on or
before such date may not thereafter be purchased hereunder.
3.The Optionee shall exercise the option by delivering
to the Corporation a written notice of exercise in substantially the
form attached hereto as Exhibit A. Common Stock purchased pursuant to
this Agreement shall be paid for in full in cash at the time of purchase
or in shares of Common Stock surrendered to the Corporation or in a
combination of cash and such shares. Shares of Common Stock thus
surrendered shall be valued at their Fair Market Value (as defined in
this Section 3 below) on the date of exercise. Upon receipt of payment
and written notice of exercise, the Corporation shall deliver, without
stock transfer tax to the Optionee or other person entitled to exercise
the option, to the person exercising the option, a certificate or
certificates for such shares. It shall be a condition to the
performance of the Corporation's obligation to issue or transfer Common
Stock upon exercise of this option that the person exercising this
option pay, or make provision satisfactory to the Corporation for the
payment of, any taxes (other than stock transfer taxes) which the
Corporation is obligated to collect with respect to the issue or
transfer of Common Stock upon exercise (including any federal, state or
local withholding taxes).
As used in this Agreement, the "Fair Market Value" of a
share of Common Stock shall mean the per share value of the Common
Stock as of a given date, determined as follows:
(a)If the Common Stock is listed or admitted for trading
on the New York Stock Exchange (or if not, on another national
securities exchange), the Fair Market Value of the Common Stock is
the average of the closing quotations for such stock based on
composite transactions for the New York Stock Exchange (or if not
listed on it, such other national securities exchange) for the
five Trading Days (as defined below) ending at the close of
business on the day prior to such given date.
(b)If the Common Stock is not traded on any national
securities exchange, but is quoted on the National Association of
Securities Dealers, Inc. Automated Quotation System (NASDAQ
System) or any similar system of automated dissemination of
quotations of prices in common use, the Fair Market Value of the
Common Stock is the average of the last sales price (if the stock
is listed as a national market issue under the NASDAQ System) or
the mean between the closing representative bid and asked prices
(in all other cases) for the stock as reported by the NASDAQ
System (or such similar quotation system) for the five Trading
Days ending at the close of business on the day prior to such
given date.
(c)If neither clause (a) nor clause (b) of this
definition is applicable, the Fair Market Value of the Common
Stock is the fair market value per share as of such valuation
date, as determined by the Board of Directors of the Corporation
in good faith and in accordance with uniform principles
consistently applied.
(d)"Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any business day.
4.The Corporation hereby agrees that at all times there
shall be reserved for issuance and delivery upon exercise of the option
such number of shares of its Common Stock as shall be required for
issuance and delivery upon the exercise of the option, and that such
shares, when issued in accordance with the terms of this Agreement,
shall be validly issued, fully paid, and non-assessable. The
Corporation covenants and agrees that it will from time to time take all
such action as may be necessary to assure that the par value per share
of the Common Stock is at all times equal to or less than the then
effective Exercise Price of the option.
5.This option is not transferable other than by will or
the laws of descent and distribution. Any other transfer of this option
(including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other
disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or
equitable, of the option) shall be null and void and of no effect. Any
shares issued pursuant to this option shall not be registered under the
Securities Act of 1933, as amended (the "Act"). The Optionee may not
sell or otherwise dispose of such shares in the absence of either a
registration statement under the Act or an exemption from the
registration provisions thereunder, with respect to which the Optionee
shall have delivered to the Corporation an opinion of counsel, in form
satisfactory to the Corporation, that, under the circumstances,
registration is not required. The certificates representing such shares
shall bear a legend as follows:
The shares represented by this certificate
have not been registered under the Securities
Act of 1933 and may not be transferred in the
absence of either an effective registration
statement under the Securities Act of 1933, as
amended (the "Act") with respect to such
shares, or an exemption from the registration
provisions of the Act, with respect to which
the Corporation shall have received an opinion
of counsel, in form satisfactory to it, that,
under the circumstances, registration under
the Act is not required.
6.This option shall be exercisable during the life of
the Optionee only by the Optionee and the Optionee's guardian or legal
representative and after death only by the Optionee's legal
representative. Notwithstanding the following provisions of this
Section 6, no option shall be exercisable after the Expiration Time.
If the Optionee's consulting arrangement or employment with
the Corporation terminates for any reason other than (i) Cause (as
defined below), (ii) death or (iii) Retirement (as defined below), the
option may be exercised (to the extent it was exercisable immediately
preceding such termination) until 30 days after the date of such
termination. If the option was not exercisable immediately preceding
such termination of employment, the option shall terminate upon such
termination of employment.
If the Optionee's consulting arrangement or employment with
the Corporation is terminated for Cause, the option shall terminate
immediately upon such termination of the consulting arrangement or
employment, regardless of whether the option was exercisable immediately
preceding such termination of employment. For the purposes of this
Agreement, the term "Cause" shall mean (1) the willful failure by the
Optionee to perform his required duties to the Corporation in any
material respect, (2) gross negligence in the performance of his
required duties to the Corporation, (3) the commission of a felony by
the Optionee under the laws of the United States or any state thereof or
any foreign country or subdivision thereof (whether or not in connection
with his employment), (4) the willful engaging in misconduct by the
Optionee which is materially injurious to the Subsidiary, monetarily or
otherwise, (5) breach of any confidential information, non-competition
or employee inventions provisions contained in any employment contract,
if any, entered into by the Optionee and (6) substance abuse,
alcoholism, excessive use of alcoholic products and any use of a
narcotic or controlled substance (other than as duly prescribed
medication).
Upon termination of the Optionee's consulting arrangement
or employment due to retirement at age 60 or older or disability (as
hereinafter defined) (collectively, "Retirement"), the Optionee may
exercise the option (to the extent it was exercisable immediately
preceding such termination) until the expiration of three years after
the date of such termination of employment (the "Retirement Expiration
Time") . If the option was not exercisable immediately preceding such
termination of employment, the option shall terminate upon such
termination of employment.
Upon the death of the Optionee (i) while in active service
with the Corporation or, (ii) if the Optionee's consulting arrangement
or employment with the Corporation had terminated due to Retirement and
the death of the Optionee occurred prior to the Retirement Expiration
Time, the person or persons to whom the Optionee's rights under the
option are transferred by will or the laws of descent and distribution
may exercise the option until the expiration of 12 months after the date
of the Optionee's death, but only to the extent the option was
exercisable immediately preceding the Optionee's death. If the option
was not exercisable immediately preceding the Optionee's death, the
option shall terminate upon the Optionee's death.
For purposes of this Section 6, leaves of absence shall not
be deemed terminations or interruptions of employment and the term
"disability" shall have the meaning provided in Section 22(e)(3) of the
Code.
7.If dividends payable in Common Stock during any fiscal
year of the Corporation exceed an aggregate of 5% of the Common Stock
issued and outstanding at the beginning of such fiscal year, or if,
during any fiscal year of the Corporation, there is one or more splits,
subdivisions, or combinations of shares of Common Stock resulting in an
increase or decrease by more than 5% of the shares outstanding at the
beginning of the year, the number of shares available under this option
shall be increased or decreased proportionately, as the case may be,
without change in the aggregate exercise price. Common Stock dividends,
splits, subdivisions, or combinations during any fiscal year which do
not exceed, in the aggregate, 5% of the Common Stock issued and
outstanding at the beginning of such year shall be ignored for purposes
of this option. All adjustments shall be made as of the day such action
necessitating such adjustment becomes effective.
In case the Corporation is merged or consolidated with
another corporation, or in case the property or stock of the Corporation
is acquired by another corporation, or in case of a reorganization or
liquidation of the Corporation, the Board of Directors of the
Corporation, or the board of directors of any corporation assuming the
obligations of the Corporation hereunder, shall either (i) make
appropriate provisions for the protection of this option by the
substitution on an equitable basis of appropriate stock or other
property of the Corporation, or appropriate stock or other property of
the merged, consolidated or otherwise reorganized corporation, provided
only that such substitution of options or other property shall comply
with the requirements of Section 424 of the Code, or (ii) give written
notice to the Optionee that his options, which will become immediately
exercisable (if not already immediately exercisable), must be exercised
within 30 days of the date of such notice (but not later than the
Expiration Time) or they will be terminated.
8.Following a Change in Control (as defined below) this
option shall automatically become exercisable in full (if not already
exercisable in full) upon the occurrence of either of the following
events:
(a)A significant change in the nature or scope of the
authorities, powers, functions, or duties normally attached
to the Optionee's consulting arrangement or position with
the Corporation within a two-year period after a Change in
Control, and the Optionee terminates his consulting
arrangement or employment with the Corporation within 90
days after such change duties; or
(b)termination of the Optionee's consulting arrangement or
employment by the Corporation without Cause within a
two-year period after a Change in Control.
In either of such events, notwithstanding the provisions of
Section 6 of this Agreement, the Optionee may exercise the
option, within three years after the date of such
termination of employment (but not later than the Expiration
Time); provided, however, that upon the death of the
Optionee within this three-year period, the person or
persons to whom the Optionee's rights are transferred by
will or the laws of descent and distribution may exercise
the option (to the extent it was exercisable on the date of
the Optionee's death) within 12 months after the date of the
Optionee's death (but not later than the Expiration Time).
If the option was not exercisable immediately preceding the
Optionee's death, the option shall terminate upon the
Optionee's death.
For purposes of this Agreement, "Change in Control" shall be
deemed to occur:
(i)if any person within the meaning of Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), other than the Corporation or any of
its subsidiaries, has become the beneficial owner, within
the meaning of Rule 13d-3 under the Exchange Act, of 25
percent or more of the combined voting power of the
Corporation's then outstanding voting securities, provided,
however, that for purposes hereof, no Change in Control
shall be deemed to have occurred if prior to the acquisition
of 25 percent of the combined voting power of the
Corporation's then outstanding voting securities, the full
Board of Directors of the Corporation shall have adopted, by
not less than a two-thirds vote, a resolution specifically
approving such acquisition; or
(ii)when a majority of the directors of the Corporation elected
at any special or annual meeting of stockholders are not
individuals nominated by the Corporation's incumbent Board of
Directors or when individuals who are members of the
Corporation's Board of Directors at any one time shall
immediately thereafter cease to constitute a majority of the
Corporation's Board of Directors.
9.The grant and exercise of this option, and the
Corporation's obligation to sell and deliver shares upon the exercise of
this option, shall be subject to the requirement that, if at any time
the Board of Directors of the Corporation shall determine, in its
discretion, that the listing, registration or qualification of the
shares issuable or transferable upon exercise thereof upon any
securities exchange or under any state or Federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable
as a condition of, or in connection with, the granting of this option,
the issue, transfer, or purchase of shares thereunder may not be
exercised in whole or in part unless such listing, registration,
qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Board of Directors of the
Corporation. The Corporation shall not be obligated to sell or issue
any shares of Common Stock in any manner in contravention of the
Securities Act of 1933, as amended or any state securities law.
10.This Agreement shall not give the Optionee any right
with respect to continuance as a consultant or an employee of the
Corporation, nor shall it be a limitation in any way on any legal right
which the Board of Directors of the Corporation, the Corporation's
stockholders or an officer of the Corporation may have to terminate the
Optionee as an employee at any time.
11.The Optionee shall have no rights as a stockholder
with respect to any shares issuable or transferable upon exercise of the
option until the date a stock certificate is issued to the Optionee for
such shares, and, except as otherwise expressly provided in this
Agreement, no adjustment shall be made for dividends or other rights for
which the record date is prior to the date such stock certificate is
issued.
12.All notices hereunder shall be in writing, and if to
the Corporation, shall be delivered personally to the Secretary of the
Corporation or mailed to the address provided in the preamble of this
Agreement, addressed to the attention of the Secretary, and if to the
Optionee, shall be delivered personally or mailed to the Optionee at the
address provided in the preamble of this Agreement. Such addresses may
be changed at any time by notice from one party to the other.
13.All decisions or interpretations made by the Board of
Directors of the Corporation with regard to any question arising
hereunder shall be binding and conclusive on the Corporation and the
Optionee.
14.This Agreement shall bind and inure to the benefit of
the parties hereto and the successors and assigns of the Corporation
and, to the extent provided in Sections 6 and 8, the executors,
administrators, legatees and heirs of the Optionee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Name: Antonio L. DeLise
Title: Vice President
/s/ Richard Phillimore
Richard Phillimore
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
January 18, 1999 between the undersigned and PubliCARD, Inc. (the
"Corporation"), hereby irrevocably elects to exercise purchase rights
represented by said option agreement for, and to purchase thereunder,
_______ shares of the Common Stock (the "Shares") of the Corporation
covered by said Option Agreement and herewith makes payment in full
therefor pursuant to Section 3 of such Option Agreement.
The undersigned (i) hereby agrees, represents and warrants
that I will not dispose of the shares unless a registration statement
under the Securities Act of 1933, as amended, covering the shares is in
effect or, in the opinion of counsel to the Company, an exemption from
such registration is available, and (ii) hereby acknowledges that the
number of shares hereafter subject to the Option Agreement referred to
above is hereafter reduced by the number of shares which I have hereby
elected to purchase.
Very truly yours,
Richard Phillimore
Social Security Number:__________________
Address:_________________________________
_________________________________________
Dated: _______________________
<PAGE>
EXHIBIT 4.8
[PUBLICARD, INC. LETTERHEAD]
December 22, 1998
Mr. Joseph Sarachek
c/o Balfour Investors
620 Fifth Avenue
7th Floor
New York, NY 10020
Dear Mr. Sarachek:
In recognition of services rendered by you as a consultant
to PubliCARD, Inc. (the "Company"), you are hereby granted 10,000 shares
of common stock, par value $0.10 per share, of the Company (the
"Shares"). Your right to receive such Shares shall vest in accordance
with the following schedule, provided that you continue to be rendering
services (as an employee or consultant) to the Company or any of its
subsidiaries on the applicable Vest Date.
Number of Shares Vest Date
3,334 December 22, 1998
3,333 December 22, 1999
3,333 December 22, 2000
Please note that neither this agreement nor the right to
receive the Shares may be assigned or transferred in any way by you.
Very truly yours,
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Antonio L. DeLise
Vice President and Chief Financial Officer
ACCEPTED AND AGREED:
/s/ Joseph Sarachek
Joseph Sarachek<PAGE>
EXHIBIT 4.9
[PUBLICARD, INC. LETTERHEAD]
January 6, 1999
Mr. Ronald Warner
8 East View Road
Hoghland Mills, NY 10930
Dear Mr.Warner:
In recognition of services rendered by you as a consultant
to and an employee of PubliCARD, Inc. (the "Company"), you are hereby
granted 5,000 shares of common stock, par value $0.10 per share, of the
Company. Your right to receive such shares shall be fully vested as of
the date of this letter.
Very truly yours,
PUBLICARD, INC.
By: /s/ Antonio L. DeLise
Antonio L. DeLise
Vice President and Chief Financial Officer
ACCEPTED AND AGREED:
/s/ Ronald Warner
Ronald Warner
<PAGE>
EXHIBIT 5.1
March 10, 1999
PubliCARD, Inc.
One Post Road
Fairfield, CT 06430
Re: PubliCARD, Inc.
Ladies and Gentlemen:
We have acted as special counsel to PubliCARD, Inc., a
Pennsylvania corporation (the "Company"), in connection with the
Company's registration statement on Form S-8 (the "Registration
Statement") to be filed pursuant to the Securities Act of 1933, as
amended (the "Securities Act"). The Registration Statement relates to
(a) an aggregate of 254,000 shares of the Company's common stock, par
value $.10 per share (the "Common Stock"), (i) 25,000 of which may be
issued upon the exercise of stock options granted pursuant to the Option
Agreement dated as of December 14, 1998 between the Company and Zehev
Tadmor, (ii) 25,000 of which may be issued upon the exercise of stock
options granted pursuant to the Option Agreement dated as of
December 22, 1998 between the Company and Joseph Sarachek, (iii) 4,000
of which may be issued upon the exercise of stock options pursuant to
the Option Agreements, dated as of January 6, 1999, between the Company
and each of Joan Erber and Sonia Sorg, and (iv) 200,000 of which may be
issued upon the exercise of stock options pursuant to the Option
Agreement, dated as of January 18, 1999, between the Company and Richard
Phillimore (collectively, the "Option Agreements") and (b) an aggregate
of 15,000 shares of Common Stock, (i) 10,000 of which may be issued
pursuant to stock grants under an Award Agreement dated as of December
22, 1998, between PubliCARD, Inc. and Joseph Sarachek and (ii) 5,000 of
which may be issued pursuant to stock grants under an Award Agreement
dated as of January 6, 1999, between PubliCARD, Inc. and Ronald Warner
(collectively, the "Award Agreements").
In connection with the above, we have reviewed the
Company's articles of incorporation, its by-laws, resolutions adopted by
its Board of Directors, the Registration Statement and its related
Prospectuses, the Option Agreements, the Award Agreements and such other
documents and proceedings as we have deemed appropriate.
On the basis of such review, and having regard to legal
considerations that we deem relevant, we are of the opinion that the
shares of Common Stock to be offered pursuant to the Registration
Statement have been duly authorized and, when issued in accordance with
the terms set forth in the Option Agreements, in the Award Agreements and in
the Registration Statement, will be duly and validly issued, fully paid
and nonassessable.
Our opinions set forth above are based as to matters of law
solely on applicable provisions of the laws of the Commonwealth of
Pennsylvania, and we express no opinions as to any other laws, statutes,
ordinances, rules or regulations.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. In giving this opinion, we do
not thereby admit that we are within the category of persons whose
consent is required under Section 7 of the Securities Act or the rules
and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/SCHNADER HARRISON SEGAL & LEWIS LLP
SCHNADER HARRISON SEGAL & LEWIS LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of PubliCARD,
Inc. on Form S-8 of our report dated January 30, 1998, included in
PubliCARD, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1997 and the incorporation by reference in this
registration statement of our report dated November 6, 1998, on Tritheim
Technologies, Inc, as of and for the year ended December 31, 1997, included
in PubliCARD, Inc.'s Current Report on Form 8-K/A filed on February 5, 1999.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Stamford, Connecticut
March 9, 1999
