As filed with the Securities and Exchange Commission on February 26, 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 Identification No.)
of incorporation or organization)
One Post Road, Fairfield, Connecticut 06430
(Address of principal executive offices)
AMAZING! CONTROLS, INC. 1997 STOCK PLAN
OPTION AGREEMENT DATED AS OF FEBRUARY 11, 1999
BETWEEN PUBLICARD, INC. AND DONALD WITMER
OPTION AGREEMENTS DATED AS OF FEBRUARY 11, 1999
BETWEEN PUBLICARD, INC. AND THE PERSONS NAMED IN
NOTE (5) TO THE FEE TABLE BELOW
(Full title of plans)
JAMES J. WEIS
President and Chief Executive Officer
PubliCARD, Inc.
One Post Road
Fairfield, Connecticut 06430
(203) 254-3900
(Name, address and telephone number
of agent for service)
____________________
Copies to:
JOEL I. GREENBERG, ESQ.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, N.Y. 10022
(212) 836-8000<PAGE>
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to Registered Maximum Offering Aggregate Offering Registra-
Registered Price Per Share(1) Price(1) tion Fee
Common Stock, par
value $.10 per
share 3,941(2) $1.43(3) $5,653.16 $1.57
Common Stock, par
value $.10 per
share 3,562(4) $1.12 $3,989.44 $1.11
Common Stock, par
value $.10 per
share 250,000(5) $9.75 $2,437,500.00 $677.63
Totals 257,503 $2,447,142.66 $680.31
(1) 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 plan or relevant option
agreements.
(2) Represents the total number of shares of common stock, par value
$.10 per share, of PubliCARD, Inc. ("Common Stock") which may be
issued upon exercise of outstanding stock options granted under the
Amazing! Controls, Inc. 1997 Stock Plan which has been assumed by
PubliCARD, Inc. pursuant to the Agreement and Plan of Merger dated
as of February 11, 1999 among PubliCARD, Inc., ASCT Acquisition
Corp., Amazing! Controls, Inc. ("Amazing") and certain stockholders
of Amazing. No additional options will be granted under such plan.
(3) Represents the average exercise price for outstanding options.
(4) Represents the total number of shares of Common Stock which may be
issued upon exercise of stock options granted under an Option
Agreement dated as of February 11, 1999 between PubliCARD, Inc. and
Donald Witmer.
(5) 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 February 11, 1999 between PubliCARD, Inc. and
each of the following persons: (1) Donald Witmer, (2) Terry
Warmbier, (3) Christopher Goeltner, (4) Chee Men Yu, (5) Robert
Kowolik and (6) Daryl Stemm.
<PAGE>
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The following documents, or portions thereof, filed with the
Securities and Exchange Commission (the "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 and December 7, 1998, as amended by the Company's
Current Report on Form 8-K/A dated February 5, 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.
Any statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated herein by reference modifies
or supersedes such statement.
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.
The following are filed as exhibits to this registration statement:
Exhibits
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 Amazing! Controls, Inc. 1997 Stock Plan.
4.4 Option Agreement, dated as of February 11, 1999, between PubliCARD, Inc.
and Donald Witmer.
4.5 Option Agreements, dated as of February 11, 1999, between PubliCARD, Inc.
and certain employees of Amazing! Controls, Inc., a subsidiary of
PubliCARD, Inc. Exhibit includes a representative example of such
option agreements together with a Schedule identifying the omitted
option agreements and material differences from filed agreement.
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 of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
the initial bona fide offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
4. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Sections 13(a)
or 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 of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the 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 of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Fairfield, State of Connecticut,
on February 26, 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 February 26, 1999
James J. Weis
Director, President and Chief Executive Officer
(principal executive officer)
/s/ Antonio L. DeLise February 26, 1999
Antonio L. DeLise
Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/ Harry I. Freund February 26, 1999
Harry I. Freund
Director and Chairman of the Board of Directors
/s/ Jay S. Goldsmith February 26, 1999
Jay S. Goldsmith
Director and Vice Chairman of the Board of Directors
/s/ Clifford B. Cohn February 26, 1999
Clifford B. Cohn
Director
/s/ David L. Herman February 26, 1999
David L. Herman
Director
/s/ L. G. Schafran February 26, 1999
L. G. Schafran
Director
<PAGE>
EXHIBIT INDEX
Exhibit 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 Amazing! Controls, Inc. 1997 Stock Plan.
4.4 Option Agreement, dated as of February 11, 1999, between PubliCARD, Inc.
and Donald Witmer.
4.5 Option Agreements, dated as of February 11, 1999, between PubliCARD,
Inc. and certain employees of Amazing! Controls, Inc., a subsidiary of
PubliCARD, Inc. Exhibit includes a representative example of
such option agreements together with a Schedule identifying the omitted
option agreements and material differences from filed agreement.
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).
24.1 Powers of Attorney (included on the signature page of this
Registration Statement).
<PAGE>
EXHIBIT 4.3
AMAZING! CONTROLS INC.
1997 STOCK PLAN
1. Purposes of the Plan. The purposes of this Stock Plan are to
attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to Employees,
Directors and Consultants and to promote the success of the Company's
business. Options granted under the Plan may be Incentive Stock Options
or Nonstatutory Stock Options, as determined by the Administrator at the
time of grant. Stock Purchase Rights may also be granted under the Plan.
2. Definitions. As used herein, the following definitions shall
apply:
(a) "Administrator" means the Board or any of its Committees
as shall be administering the Plan in accordance with Section 4 hereof.
(b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed or quoted and the
applicable laws of any other country or jurisdiction where Options or
Stock Purchase Rights are granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Committee" means a committee of Directors appointed by the Board in
accordance with Section 4 hereof.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Amazing! Controls Inc., a California corporation.
(h) "Consultant" means any person who is engaged by the
Company or any Parent or Subsidiary to render consulting or advisory
services to such entity.
(i) "Director" means a member of the Board of Directors of the Company.
(j) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(k) "Employee" means any person, including Officers and Directors,
employed by the Company or any Parent or Subsidiary of the Company. A
Service Provider shall not cease to be an Employee in the case of (i) any
leave of absence approved by the Company or (ii) transfers between locations
of the Company or between the Company, its Parent, any Subsidiary, or any
successor. For purposes of Incentive Stock Options, no such leave may exceed
ninety days, unless reemployment upon expiration of such leave is guaranteed
by statute or contract. If reemployment upon expiration of a leave of absence
approved by the Company is not so guaranteed, on the 181st day of such leave
any Incentive Stock Option held by the Optionee shall cease to be treated as
an Incentive Stock Option and shall be treated for tax purposes as a
Nonstatutory Stock Option. Neither service as a Director nor payment of a
director's fee by the Company shall be sufficient to constitute "employment"
by the Company.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(m) "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, including, without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock
Market, its Fair Market Value shall be the closing sales price for such stock
(or the closing bid, if no sales were reported) as quoted on such exchange or
system for the last market trading day prior to the time of determination, as
reported in The Wall Street Journal or such other source as the Administrator
deems reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices
for the Common Stock on the last market trading day prior to the day of
determination; or
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good
faith by the Administrator.
(n) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of
the Code.
(o) "Nonstatutory Stock Option" means an Option not intended
to qualify as an Incentive Stock Option.
(p) "Officer" means a person who is an officer of the
Company within the meaning of Section 16 of the Exchange Act and the rules
and regulations promulgated thereunder.
(q) "Option" means a stock option granted pursuant to the Plan.
(r) "Option Agreement" means a written or electronic
agreement between the Company and an Optionee evidencing the terms and
conditions of an individual Option grant. The Option Agreement is subject
to the terms and conditions of the Plan.
(s) "Option Exchange Program" means a program whereby outstanding
Options are exchanged for Options with a lower exercise price.
(t) "Optioned Stock" means the Common Stock subject to an Option or a
Stock Purchase Right.
(u) "Optionee" means the holder of an outstanding Option or Stock
Purchase Right granted under the Plan.
(v) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(w) "Plan" means this 1997 Stock Plan.
(x) "Restricted Stock" means shares of Common Stock acquired pursuant
to a grant of a Stock Purchase Right under Section 11 below.
(y) "Section 16(b)" means Section 16(b) of the Securities Exchange Act
of 1934, as amended.
(z) "Service Provider" means an Employee, Director or Consultant.
(aa) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 12 below.
(bb) "Stock Purchase Right" means a right to purchase Common Stock
pursuant to Section 11 below.
(cc) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of
Section 12 of the Plan, the maximum aggregate number of Shares which may
be subject to option and sold under the Plan is 1,000,000 Shares. The
Shares may be authorized but unissued, or reacquired Common Stock.
If an Option or Stock Purchase Right expires or becomes
unexercisable without having been exercised in full, or is surrendered
pursuant to an Option Exchange Program, the unpurchased Shares which were
subject thereto shall become available for future grant or sale under the
Plan (unless the Plan has terminated). However, Shares that have actually
been issued under the Plan, upon exercise of either an Option or Stock
Purchase Right, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, such Shares shall become available for future grant under the Plan.
4. Administration of the Plan.
(a)Administrator. The Plan shall be administered by the
Board or a Committee appointed by the Board, which Committee shall be
constituted to comply with Applicable Laws.
(b) Powers of the Administrator. Subject to the provisions
of the Plan and, in the case of a Committee, the specific duties delegated
by the Board to such Committee, and subject to the approval of any
relevant authorities, the Administrator shall have the authority in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Options
and Stock Purchase Rights may from time to time be granted hereunder;
(iii) to determine the number of Shares to be covered by
each such award granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, of any Option or
Stock Purchase Right granted hereunder. Such terms and conditions include,
but are not limited to, the exercise price, the time or times when Options or
Stock Purchase Rights may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Option or Stock Purchase Right or
the Common Stock relating thereto, based in each case on such factors as the
Administrator, in its sole discretion, shall determine;
(vi) to determine whether and under what circumstances
an Option may be settled in cash under subsection 9(e) instead of Common
Stock;
(vii) to reduce the exercise price of any Option to the
then current Fair Market Value if the Fair Market Value of the Common
Stock covered by such Option has declined since the date the Option was
granted;
(viii) to initiate an Option Exchange Program;
(ix) to prescribe, amend and rescind rules and
regulations relating to the Plan, including rules and regulations relating
to sub-plans established for the purpose of qualifying for preferred tax
treatment under foreign tax laws;
(x) to allow Optionees to satisfy withholding tax obligations
by electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or Stock Purchase Right that number of Shares having a
Fair Market Value equal to the amount required to be withheld. The Fair
Market Value of the Shares to be withheld shall be determined on the date
that the amount of tax to be withheld is to be determined. All elections by
Optionees to have Shares withheld for this purpose shall be made in such
form and under such conditions as the Administrator may deem necessary or
advisable; and
(xi) to construe and interpret the terms of the Plan
and awards granted pursuant to the Plan.
(c)Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees.
5. Eligibility.
(a) Nonstatutory Stock Options and Stock Purchase Rights may
be granted to Service Providers. Incentive Stock Options may be granted
only to Employees.
(b) Each Option shall be designated in the Option Agreement
as either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of the Shares with respect to which Incentive
Stock Options are exercisable for the first time by the Optionee during
any calendar year (under all plans of the Company and any Parent or
Subsidiary) exceeds $100,000, such Options shall be treated as
Nonstatutory Stock Options. For purposes of this Section 5(b), Incentive
Stock Options shall be taken into account in the order in which they were
granted. The Fair Market Value of the Shares shall be determined as of
the time the Option with respect to such Shares is granted.
(c) Neither the Plan nor any Option or Stock Purchase Right
shall confer upon any Optionee any right with respect to continuing the
Optionee's relationship as a Service Provider with the Company, nor shall
it interfere in any way with his or her right or the Company's right to
terminate such relationship at any time, with or without cause.
6. Term of Plan. The Plan shall become effective upon its
adoption by the Board. It shall continue in effect for a term of ten (10)
years unless sooner terminated under Section 14 of the Plan.
7. Term of Option. The term of each Option shall be stated in
the Option Agreement; provided, however, that the term shall be no more
than ten (10) years from the date of grant thereof. In the case of an
Incentive Stock Option granted to an Optionee who, at the time the Option
is granted, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or
Subsidiary, the term of the Option shall be five (5) years from the date
of grant or such shorter term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
upon exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time of
grant of such Option, owns stock representing more than ten percent (10%)
of the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of grant.
(B) granted to any other Employee, the per Share
exercise price shall be no less than 100% of the Fair Market Value per
Share on the date of grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a Service Provider who, at the
time of grant of such Option, owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of the Company
or any Parent or Subsidiary, the exercise price shall be no less than 110%
of the Fair Market Value per Share on the date of grant.
(B) granted to any other Service Provider, the
per Share exercise price shall be no less than 85% of the Fair Market
Value per Share on the date of grant.
(iii) Notwithstanding the foregoing, Options may be
granted with a per Share exercise price other than as required above
pursuant to a merger or other corporate transaction.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be
determined by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant). Such consideration may
consist of (1) cash, (2) check, (3) promissory note, (4) other Shares
which (x) in the case of Shares acquired upon exercise of an Option, have
been owned by the Optionee for more than six months on the date of
surrender, and (y) have a Fair Market Value on the date of surrender equal
to the aggregate exercise price of the Shares as to which such Option
shall be exercised, (5) consideration received by the Company under a
cashless exercise program implemented by the Company in connection with
the Plan, or (6) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable according to the terms
hereof at such times and under such conditions as determined by the
Administrator and set forth in the Option Agreement. Except in the case
of Options granted to Officers, Directors and Consultants, Options shall
become exercisable at a rate of no less than 20% per year over five (5)
years from the date the Options are granted. Unless the Administrator
provides otherwise, vesting of Options granted hereunder shall be tolled
during any unpaid leave of absence. An Option may not be exercised for a
fraction of a Share.
An Option shall be deemed exercised when the Company
receives: (i) written or electronic notice of exercise (in accordance with
the Option Agreement) from the person entitled to exercise the Option, and
(ii) full payment for the Shares with respect to which the Option is
exercised. Full payment may consist of any consideration and method of
payment authorized by the Administrator and permitted by the Option
Agreement and the Plan. Shares issued upon exercise of an Option shall be
issued in the name of the Optionee or, if requested by the Optionee, in
the name of the Optionee and his or her spouse. Until the Shares are
issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote
or receive dividends or any other rights as a shareholder shall exist with
respect to the Shares, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the Shares are
issued, except as provided in Section 12 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares thereafter available, both for purposes
of the Plan and for sale under the Option, by the number of Shares as to
which the Option is exercised.
(b) Termination of Relationship as a Service Provider. If
an Optionee ceases to be a Service Provider, such Optionee may exercise
his or her Option within such period of time as is specified in the Option
Agreement (of at least thirty (30) days) to the extent that the Option is
vested on the date of termination (but in no event later than the
expiration of the term of the Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for three (3) months following the
Optionee's termination. If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the
time specified by the Administrator, the Option shall terminate, and the
Shares covered by such Option shall revert to the Plan.
(c) Disability of Optionee. If an Optionee ceases to be a
Service Provider as a result of the Optionee's Disability, the Optionee
may exercise his or her Option within such period of time as is specified
in the Option Agreement (of at least six (6) months) to the extent the
Option is vested on the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Option
Agreement). In the absence of a specified time in the Option Agreement,
the Option shall remain exercisable for twelve (12) months following the
Optionee's termination. If, on the date of termination, the Optionee is
not vested as to his or her entire Option, the Shares covered by the
unvested portion of the Option shall revert to the Plan. If, after
termination, the Optionee does not exercise his or her Option within the
time specified herein, the Option shall terminate, and the Shares covered
by such Option shall revert to the Plan.
(d) Death of Optionee. If an Optionee dies while a Service
Provider, the Option may be exercised within such period of time as is
specified in the Option Agreement (of at least six (6) months) to the
extent that the Option is vested on the date of death (but in no event
later than the expiration of the term of such Option as set forth in the
Option Agreement) by the Optionee's estate or by a person who acquires the
right to exercise the Option by bequest or inheritance. In the absence of
a specified time in the Option Agreement, the Option shall remain
exercisable for twelve (12) months following the Optionee's termination.
If, at the time of death, the Optionee is not vested as to the entire
Option, the Shares covered by the unvested portion of the Option shall
immediately revert to the Plan. If the Option is not so exercised within
the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(e) Buyout Provisions. The Administrator may at any time
offer to buy out for a payment in cash or Shares, an Option previously
granted, based on such terms and conditions as the Administrator shall
establish and communicate to the Optionee at the time that such offer is
made.
10. Non-Transferability of Options and Stock Purchase Rights. The
Options and Stock Purchase Rights may not be sold, pledged, assigned,
hypothecated, transferred, or disposed of in any manner other than by will
or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Stock Purchase Rights.
(a) Rights to Purchase. Stock Purchase Rights may be issued
either alone, in addition to, or in tandem with other awards granted under
the Plan and/or cash awards made outside of the Plan. After the
Administrator determines that it will offer Stock Purchase Rights under
the Plan, it shall advise the offeree in writing or electronically of the
terms, conditions and restrictions related to the offer, including the
number of Shares that such person shall be entitled to purchase, the price
to be paid, and the time within which such person must accept such offer.
The terms of the offer shall comply in all respects with Section
260.140.42 of Title 10 of the California Code of Regulations. The offer
shall be accepted by execution of a Restricted Stock purchase agreement in
the form determined by the Administrator.
(b) Repurchase Option. Unless the Administrator determines
otherwise, the Restricted Stock purchase agreement shall grant the Company
a repurchase option exercisable upon the voluntary or involuntary
termination of the purchaser's service with the Company for any reason
(including death or disability). The purchase price for Shares
repurchased pursuant to the Restricted Stock purchase agreement shall be
the original price paid by the purchaser and may be paid by cancellation
of any indebtedness of the purchaser to the Company. The repurchase
option shall lapse at such rate as the Administrator may determine.
Except with respect to Shares purchased by Officers, Directors and
Consultants, the repurchase option shall in no case lapse at a rate of
less than 20% per year over five (5) years from the date of purchase.
(c) Other Provisions. The Restricted Stock purchase
agreement shall contain such other terms, provisions and conditions not
inconsistent with the Plan as may be determined by the Administrator in
its sole discretion.
(d) Rights as a Shareholder. Once the Stock Purchase Right
is exercised, the purchaser shall have rights equivalent to those of a
shareholder and shall be a shareholder when his or her purchase is entered
upon the records of the duly authorized transfer agent of the Company. No
adjustment shall be made for a dividend or other right for which the
record date is prior to the date the Stock Purchase Right is exercised,
except as provided in Section 12 of the Plan.
12. Adjustments Upon Changes in Capitalization, Merger or Asset
Sale.
(a) Changes in Capitalization. Subject to any required
action by the shareholders of the Company, the number of shares of Common
Stock covered by each outstanding Option or Stock Purchase Right, and the
number of shares of Common Stock which have been authorized for issuance
under the Plan but as to which no Options or Stock Purchase Rights have
yet been granted or which have been returned to the Plan upon cancellation
or expiration of an Option or Stock Purchase Right, as well as the price
per share of Common Stock covered by each such outstanding Option or Stock
Purchase Right, shall be proportionately adjusted for any increase or
decrease in the number of issued shares of Common Stock resulting from a
stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in
the number of issued shares of Common Stock effected without receipt of
consideration by the Company. The conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Board, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of
Common Stock subject to an Option or Stock Purchase Right.
(b) Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Company, the Administrator
shall notify each Optionee as soon as practicable prior to the effective
date of such proposed transaction. The Administrator in its discretion
may provide for an Optionee to have the right to exercise his or her
Option or Stock Purchase Right until fifteen (15) days prior to such
transaction as to all of the Optioned Stock covered thereby, including
Shares as to which the Option or Stock Purchase Right would not otherwise
be exercisable. In addition, the Administrator may provide that any
Company repurchase option applicable to any Shares purchased upon exercise
of an Option or Stock Purchase Right shall lapse as to all such Shares,
provided the proposed dissolution or liquidation takes place at the time
and in the manner contemplated. To the extent it has not been previously
exercised, an Option or Stock Purchase Right will terminate immediately
prior to the consummation of such proposed action.
(c) Merger or Asset Sale. In the event of a merger of the
Company with or into another corporation, or the sale of substantially all
of the assets of the Company, each outstanding Option and Stock Purchase
Right shall be assumed or an equivalent option or right substituted by the
successor corporation or a Parent or Subsidiary of the successor
corporation. In the event that the successor corporation refuses to
assume or substitute for the Option or Stock Purchase Right, the Optionee
shall fully vest in and have the right to exercise the Option or Stock
Purchase Right as to all of the Optioned Stock, including Shares as to
which it would not otherwise be vested or exercisable. If an Option or
Stock Purchase Right becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a merger or sale of assets, the
Administrator shall notify the Optionee in writing or electronically that
the Option or Stock Purchase Right shall be fully exercisable for a period
of fifteen (15) days from the date of such notice, and the Option or Stock
Purchase Right shall terminate upon the expiration of such period. For
the purposes of this paragraph, the Option or Stock Purchase Right shall
be considered assumed if, following the merger or sale of assets, the
option or right confers the right to purchase or receive, for each Share
of Optioned Stock subject to the Option or Stock Purchase Right
immediately prior to the merger or sale of assets the consideration
(whether stock, cash, or other securities or property) received in the
merger or sale of assets by holders of Common Stock for each Share held on
the effective date of the transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders
of a majority of the outstanding Shares); provided, however, that if such
consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its Parent, the Administrator
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Option or Stock
Purchase Right, for each Share of Optioned Stock subject to the Option or
Stock Purchase Right, to be solely common stock of the successor
corporation or its Parent equal in fair market value to the per share
consideration received by holders of Common Stock in the merger or sale of
assets.
13. Time of Granting Options and Stock Purchase Rights. The date
of grant of an Option or Stock Purchase Right shall, for all purposes, be
the date on which the Administrator makes the determination granting such
Option or Stock Purchase Right, or such other date as is determined by the
Administrator. Notice of the determination shall be given to each
Employee to whom an Option or Stock Purchase Right is so granted within a
reasonable time after the date of such grant.
14. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time amend,
alter, suspend or terminate the Plan.
(b) Shareholder Approval. The Board shall obtain
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws.
(c) Effect of Amendment or Termination. No amendment,
alteration, suspension or termination of the Plan shall impair the rights
of any Optionee, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of the Plan shall not affect the
Administrator's ability to exercise the powers granted to it hereunder
with respect to Options granted under the Plan prior to the date of such
termination.
15. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant
to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares shall comply with Applicable Laws and
shall be further subject to the approval of counsel for the Company with
respect to such compliance.
(b) Investment Representations. As a condition to the
exercise of an Option, the Administrator may require the person exercising
such Option to represent and warrant at the time of any such exercise that
the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel
for the Company, such a representation is required.
16. Inability to Obtain Authority. The inability of the Company
to obtain authority from any regulatory body having jurisdiction, which
authority is deemed by the Company's counsel to be necessary to the lawful
issuance and sale of any Shares hereunder, shall relieve the Company of
any liability in respect of the failure to issue or sell such Shares as to
which such requisite authority shall not have been obtained.
17. Reservation of Shares. The Company, during the term of this
Plan, shall at all times reserve and keep available such number of Shares
as shall be sufficient to satisfy the requirements of the Plan.
18. Shareholder Approval. The Plan shall be subject to approval
by the shareholders of the Company within twelve (12) months after the
date the Plan is adopted. Such shareholder approval shall be obtained in
the degree and manner required under Applicable Laws.
19. Information to Optionees and Purchasers. The Company shall
provide to each Optionee and to each individual who acquires Shares
pursuant to the Plan, not less frequently than annually during the period
such Optionee or purchaser has one or more Options or Stock Purchase
Rights outstanding, and, in the case of an individual who acquires Shares
pursuant to the Plan, during the period such individual owns such Shares,
copies of annual financial statements. The Company shall not be required
to provide such statements to key employees whose duties in connection
with the Company assure their access to equivalent information.
<PAGE>
EXHIBIT 4.4
OPTION AGREEMENT
AGREEMENT, dated as of February 11, 1999, between PUBLICARD, INC.,
a Pennsylvania corporation with offices at One Post Road, Fairfield,
Connecticut 06430 (the "Corporation"), and Donald Witmer, residing at 2006
Margot Place, San Jose, California, 95125 (the "Optionee").
WHEREAS, the Corporation and the Optionee have entered into this
Option Agreement pursuant to a certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of February 11, 1999 among the Corporation,
ASCT Acquisition Corp. ("Acquisition Sub"), Amazing! Controls, Inc. (the
"Target") and the security-holders of the Target named therein, pursuant
to which Acquisition Sub shall merge with and into Target and Target shall
become a wholly-owned subsidiary (the "Subsidiary") of the Corporation
(the "Merger").
WHEREAS, the Optionee is the holder of options to purchase shares of
common stock in the Target (the "Target Options").
WHEREAS, pursuant to the terms of the Merger Agreement, the
Corporation desires to grant to the Optionee a nonqualified stock option
to acquire shares of the Corporation's Common Stock (as hereinafter
defined) in exchange for the Target Options held by the Optionee.
WHEREAS, the Optionee desires to accept such option in exchange for
his Target Options, subject to the terms and conditions of this Agreement.
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 3,562 shares of common stock, par value
$.10 per share of the Corporation (the "Common Stock"), at an exercise
price equal to $1.12 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 as follows: (i) one-third
of this option shall become exercisable upon the first anniversary of the
date of this Agreement; (ii) one-third of this option shall become
exercisable on the second anniversary of the date of this Agreement; and
(iii) one-third of this option shall become exercisable on the third
anniversary of the date of this Agreement. The Optionee may purchase all
or any part of the shares (but not fractions of a share) to which this
option relates (to the extent then exercisable), 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 the fifth anniversary of the date of this Agreement (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 or check and such shares. Shares of Common Stock thus surrendered
shall be valued at their Fair Market Value on the date of exercise. "Fair
Market Value" means the average of the closing sales price for such Common
Stock (or the closing bid, if no sales were reported) as quoted on any
established stock exchange or a national market system for the last five
(5) trading days prior to the date of determination, as reported in The
Wall Street Journal. 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).
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.
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 employment with the Subsidiary 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 employment with the Subsidiary is terminated
by the Subsidiary for Cause, the option shall terminate immediately upon
such termination of 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 Subsidiary
in any material respect, (2) gross negligence in the performance of his
required duties to the Subsidiary, (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 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 Subsidiary or, (ii) if the Optionee's employment with the
Subsidiary 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 assumption or 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 position with the Subsidiary within a two-year
period after a Change in Control, and the Optionee terminates
his employment with the Subsidiary within 90 days after such
change in title or duties; or
(b) termination of the Optionee's employment by the
Subsidiary 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 within 12 months after the date of
the Optionee's death (but not later than the Expiration Time).
For purposes of this Agreement, "Change in Control" shall be
deemed to occur:
(a) 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
(b) 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 an employee of the Subsidiary, nor shall it be
a limitation in any way on any legal right which the Board of Directors of
the Subsidiary, the Subsidiary's stockholders or an officer of the
Subsidiary 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.
15. The Stock Option Agreement dated June 9, 1997 between the
Optionee and the Target, as amended by the Amendment to Stock Option
Agreement entered into between the Optionee and the Target in January 1999
(collectively, the "Prior Option Agreement"), shall be terminated in their
entirety and be of no further force and effect. This Agreement shall
supersede the Prior Option Agreement in all respects.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
PUBLICARD, INC.
By: /s/ James J. Weis
Name: James J. Weis
Title: President
OPTIONEE:
/s/ Donald Witmer
Name: Donald Witmer
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated
___________, 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 he or she 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 Corporation, 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 he or she has hereby elected to purchase.
Very truly yours,
_________________________________________
[OPTIONEE]
Social Security Number:___________________
Address:__________________________________
__________________________________________
Dated: _______________________<PAGE>
EXHIBIT 4.5
OPTION AGREEMENT
AGREEMENT, dated as of February 11, 1999, between PUBLICARD, INC.,
a Pennsylvania corporation with offices at One Post Road, Fairfield,
Connecticut 06430 (the "Corporation"), and Donald Witmer, residing at 2006
Margot Place, San Jose, California, 95125 (the "Optionee").
WHEREAS, the Corporation and the Optionee have entered into this
Option Agreement pursuant to a certain Agreement and Plan of Merger (the
"Merger Agreement") dated as of February 11, 1999 among the Corporation,
ASCT Acquisition Corp. ("Acquisition Sub"), Amazing! Controls, Inc. (the
"Target") and the security-holders of the Target named therein, pursuant
to which Acquisition Sub shall merge with and into Target and Target shall
become a wholly-owned subsidiary (the "Subsidiary") of the Corporation
(the "Merger").
WHEREAS, the Optionee is an employee of the Target and pursuant to
the Merger Agreement, the Corporation desires to grant to the Optionee a
nonqualified stock option to acquire shares of the Corporation's Common
Stock (as hereinafter defined) to encourage the Optionee to remain an
employee of the Subsidiary.
WHEREAS, the Optionee desires to accept such option, subject to the
terms and conditions of this Agreement.
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 125,000 shares of common stock, par
value $.10 per share of the Corporation (the "Common Stock"), at an
exercise price equal to $9.75 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 shall become exercisable as follows: (i) one-third
of this option shall become exercisable upon the first anniversary of the
date of this Agreement; (ii) one-third of this option shall become
exercisable on the second anniversary of the date of this Agreement; and
(iii) one-third of this option shall become exercisable on the third
anniversary of the date of this Agreement. The Optionee may purchase all
or any part of the shares (but not fractions of a share) to which this
option relates (to the extent then exercisable), 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 the fifth anniversary of the date of this Agreement (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 or check and such shares. Shares of Common Stock thus surrendered
shall be valued at their Fair Market Value on the date of exercise. "Fair
Market Value" means the average of the closing sales price for such Common
Stock (or the closing bid, if no sales were reported) as quoted on any
established stock exchange or a national market system for the last five
(5) trading days prior to the date of determination, as reported in The
Wall Street Journal. 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).
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.
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 employment with the Subsidiary 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 employment with the Subsidiary is terminated
by the Subsidiary for Cause, the option shall terminate immediately upon
such termination of 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 Subsidiary
in any material respect, (2) gross negligence in the performance of his
required duties to the Subsidiary, (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 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 Subsidiary or, (ii) if the Optionee's employment with the
Subsidiary 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 assumption or 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 position with the Subsidiary within a two-year
period after a Change in Control, and the Optionee terminates
his employment with the Subsidiary within 90 days after such
change in title or duties; or
(b) termination of the Optionee's employment by the
Subsidiary 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 within 12 months after the date of
the Optionee's death (but not later than the Expiration Time).
For purposes of this Agreement, "Change in Control" shall be
deemed to occur:
(a) 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
(b) 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 an employee of the Subsidiary, nor shall it be
a limitation in any way on any legal right which the Board of Directors of
the Subsidiary, the Subsidiary's stockholders or an officer of the
Subsidiary 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/ James J. Weis
Name: James J. Weis
Title: President
OPTIONEE:
/s/ Donald Witmer
Name: Donald Witmer
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated ___________,
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 he
or she 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 Corporation, 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 he or she has
hereby elected to purchase.
Very truly yours,
_______________________________________
[OPTIONEE]
Social Security Number:________________
Address:_______________________________
_______________________________________
Dated: _______________________<PAGE>
Schedule to Exhibit 4.5
Attached to this Schedule is the Option Agreement dated as of
February 11, 1999 between PubliCARD, Inc. and Donald Witmer, which is a
representative example of the Option Agreements dated as of February 11,
1999 between PubliCARD, Inc. and certain employees of Amazing! Controls,
Inc., a subsidiary of PubliCARD, Inc. (the "Option Agreements"). The
Option Agreements, which (other than the one attached to this Schedule)
are set forth below, are substantially identical to the agreement attached
to this Schedule except for the name of the optionee, his or her address
and the number of shares of PubliCARD, Inc. Common Stock underlying the
options reflected thereby as set forth below (other than addresses):
Agreement Name of Optionee PubliCARD, Inc. Shares
issuable upon exercise
of the options
Option Agreement dated
as of February 11, 1999 Terry Warmbier 25,000
Option Agreement dated
as of February 11, 1999 Christopher Goeltner 25,000
Option Agreement dated
as of February 11, 1999 Chee Men Yu 25,000
Option Agreement dated
as of February 11, 1999 Robert Kowolik 25,000
Option Agreement dated
as of February 11, 1999 Daryl Stemm 25,000
<PAGE>
EXHIBIT 5.1
February 26, 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 an aggregate of 257,503
shares of the Company's common stock, par value $.10 per share (the
"Common Stock"), (i) 3,941 of which may be issued upon the exercise of
stock options granted pursuant to the Amazing! Controls, Inc. 1997 Stock
Plan (the "Plan"), (ii) 3,562 of which may be issued upon the exercise of
stock options granted pursuant to the Option Agreement dated as of
February 11, 1999 between the Company and Donald Witmer, and (iii) 250,000
of which may be issued upon the exercise of stock options granted pursuant
to substantially identical Option Agreements dated as of February 11, 1999
between the Company and each of the persons listed on Schedule A attached
hereto (collectively, the "Option Agreements"). The Plan has been assumed
by the Company and the Option Agreements have been entered into pursuant
to the terms of the Agreement and Plan of Merger (the "Merger Agreement")
dated as of February 11, 1999, among the Company, ASCT Acquisition Corp.,
Amazing! Controls, Inc. ("Amazing") and certain stockholders of Amazing.
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 Prospectus, the
Merger Agreement, the Plan, the Option 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 Plan and the Option Agreements and in the
Registration Statement, will be duly and validly issued, fully paid and
nonassessable.
Our opinion set forth above is 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>
SCHEDULE A
Options to Purchase PubliCARD, Inc. Shares
Employee Name Number of PubliCARD,
Inc. Shares issuable Exercise Price
upon exercise of the options Per Share
Donald Witmer 125,000 $9.75
Terry Warmbier 25,000 $9.75
Christopher Goeltner 25,000 $9.75
Chee Men Yu 25,000 $9.75
Robert Kowolik 25,000 $9.75
Daryl Stemm 25,000 $9.75
Total PubliCARD, Inc. Shares 250,000
<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 fiscal year ended December 31, 1997, and the
incorporation by reference in this registration statement of our report
dated November 6, 1998, on Tritheim Technologies 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
February 24, 1999
