As filed with the Securities and Exchange Commission on February 16, 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 AGREEMENTS DATED AS OF NOVEMBER 24, 1998
BETWEEN PUBLICARD, INC. AND THE PERSONS NAMED IN NOTE (2)
TO THE FEE TABLE BELOW
OPTION AGREEMENTS DATED AS OF NOVEMBER 24, 1998
BETWEEN PUBLICARD, INC. AND THE PERSONS NAMED IN NOTE (3)
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
(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
__________________________________<PAGE>
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum Amount of
Title of Amount to be offereing price aggregate offering Registra-
securities to registered per unit (1) offering price (1) tion Fee
be registered
Common Stock,
par value $.10
per share 83,270 (2) $2.00 $166,540 $46.30
Common Stock,
par value $.10
per share 250,000 (3) $2.00 $500,000 $139.00
Totals 333,270 $666,540 $185.30
(1) Computed in accordance with Rule 457(h)(1) under the Securities Act
of 1933, as amended, based on the exercise price of the options
granted under the Option Agreements described in notes (2) and (3).
(2) 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 November 24, 1998 between PubliCARD, Inc. and
each of the following persons: (1) William Marc Postlewaite, (2) Kim
J. Vogel, (3) Vincent T. Poole, (4) Stephen A. Ewald, (5) Wayne
Matthews and (6) Bob Pauley.
(3) 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 November 24, 1998 between PubliCARD, Inc. and
each of the following persons: (1) William Marc Postlewaite, (2) Kim
J. Vogel, (3) Vincent T. Poole, (4) Stephen A. Ewald, (5) Cy Allen
Hudson, (6) John Pauley, (7) Bret Tobey, (8) Laura Craig, (9) Jay
Thomason, (10) Terry Best and (11) Wayne Matthews.<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 August
14, 1998, 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.
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. <PAGE>
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 Agreements, dated as of November 24, 1998, between
PubliCARD, Inc. and certain employees of Tritheim Technologies,
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.
4.4 Option Agreements, dated as of November 24, 1998, between
PubliCARD, Inc. and certain employees of Tritheim Technologies,
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 with respect to
legality of securities being registered.
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).
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
A. 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<PAGE>
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.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (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.
C. 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 February 16,
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 16, 1999
James J. Weis
Director, President and Chief Executive Officer
(principal executive officer)
/s/ Antonio L. DeLise February 16, 1999
Antonio L. DeLise
Vice President and Chief Financial Officer
(principal financial and accounting officer)
/s/ Harry I. Freund February 16, 1999
Harry I. Freund
Director
/s/ Jay S. Goldsmith February 16, 1999
Jay S. Goldsmith
Director
/s/ Clifford B. Cohn February 16, 1999
Clifford B. Cohn
Director
/s/ David L. Herman February 16, 1999
David L. Herman
Director
/s/ L. G. Schafran February 16, 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 Agreements, dated as of November 24, 1998,
between PubliCARD, Inc. and certain employees of
Tritheim Technologies, 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.
4.4 Option Agreements, dated as of November 24, 1998,
between PubliCARD, Inc. and certain employees of
Tritheim Technologies, 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 with
respect to legality of securities being registered.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Schnader, Harrison, Segal & Lewis (included
in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of
this Registration Statement).
<PAGE>
EXHIBIT 4.3
OPTION AGREEMENT
AGREEMENT, dated as of November 24, 1998, between PUBLICARD,
INC., a Pennsylvania corporation with offices at One Post Road, Fairfield,
Connecticut 06430 (the "Corporation"), and William Marc Postlewaite,
residing at 262 South Beach Drive, Tarpon Springs, Florida 34689 (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 October 30, 1998 among the Corporation,
Publicker Smart Card Acquisition Co. ("Acquisition Sub"), Tritheim
Technologies, 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 is the
holder of options to purchase shares of common stock in the Target (the
"Target Options").
WHEREAS, in connection with the consummation of the Merger, 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 its 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 32,405 shares of common stock, par value
$.10 per share of the Corporation (the "Common Stock"), at an exercise price
equal to $2.00 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 be exercisable from and after the date
of this Agreement until its expiration in accordance with the terms 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, 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 and such shares. Shares of Common Stock thus surrendered shall be
valued at their fair market value 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).
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
until 30 days after the date of such termination.
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. 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 until
the expiration of three years after the date of such termination of
employment (the "Retirement Expiration Time").
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.
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 Optionees that their options 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) and upon
the occurrence of (a) a change in the Optionee's job title or 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, notwithstanding the provisions of Section 6 of this Agreement, the
Optionee may exercise this 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:
(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 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
/s/ William Marc Postlewaite
William Marc Postlewaite
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated November
___, 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
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,
_______________________________________
Social Security Number:________________
Address:_______________________________
________________________________________
Dated: ____________________________
<PAGE>
Schedule to Exhibit 4.3
Attached to this Schedule is the Option Agreement dated as
of November 24, 1998 between PubliCARD, Inc. and William Marc
Postlewaite, which is a representative example of the Option Agreements
dated as of November 24, 1998 between PubliCARD, Inc. and certain
employees of Tritheim Technologies, 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 Kim J. Vogel 22,308
as of November 24, 1998
Option Agreement dated Vincent T. Poole 15,931
as of November 24, 1998
Option Agreement dated Stephen A. Ewald 7,930
as of November 24, 1998
Option Agreement dated Wayne Matthews 2,348
as of November 24, 1998
Option Agreement dated Bob Pauley 2,348
as of November 24, 1998
<PAGE>
EXHIBIT 4.4
OPTION AGREEMENT
AGREEMENT, dated as of November 24, 1998, between PUBLICARD, INC., a
Pennsylvania corporation with offices at One Post Road, Fairfield,
Connecticut 06430 (the "Corporation"), and William Marc Postlewaite,
residing at 262 South Beach Drive, Tarpon Springs, Florida 34689 (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 October 30, 1998 among the Corporation, Publicker
Smart Card Acquisition Co. ("Acquisition Sub"), Tritheim Technologies,
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 21,579 shares of common stock, par
value $.10 per share of the Corporation (the "Common Stock"), at an
exercise price equal to $2.00 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 upon the third anniversary of the
date of this Agreement (the "Exercisable Date"). Thereafter, the
Optionee may purchase all or any part of the shares (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
the eighth 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 and such
shares. Shares of Common Stock thus surrendered shall be valued at their
fair market value 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).
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
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) change in the Optionee's job title or 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:
(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 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
/s/ William Marc Postlewaite
William Marc Postlewaite
<PAGE>
Exhibit A
EXERCISE NOTICE
The undersigned, pursuant to an Option Agreement dated November ___, 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 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,
__________________________________________
Social Security Number:____________________
Address:___________________________________
___________________________________________
Dated: _______________________<PAGE>
Schedule to Exhibit 4.4
Attached to this Schedule is the Option Agreement dated as of November
24, 1998 between PubliCARD, Inc. and William Marc Postlewaite, which is a
representative example of the Option Agreements dated as of November 24,
1998 between PubliCARD, Inc. and certain employees of Tritheim
Technologies, 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):
PubliCARD, Inc. Shares
Agreement Name of Optionee issuable upon exercise of
the options
Option Agreement dated as
of November 24, 1998 Kim J. Vogel 11,171
Option Agreement dated as
of November 24, 1998 Vincent T. Poole 71,338
Option Agreement dated as
of November 24, 1998 Stephen A. Ewald 66,218
Option Agreement dated as
of November 24, 1998 Cy Allen Hudson 15,427
Option Agreement dated as
of November 24, 1998 John Pauley 13,391
Option Agreement dated as
of November 24, 1998 Bret Tobey 8,896
Option Agreement dated as
of November 24, 1998 Laura Craig 8,789
Option Agreement dated as
of November 24, 1998 Jay Thomason 8,789
Option Agreement dated as
of November 24, 1998 Terry Best 13,290
Option Agreement dated as
of November 24, 1998 Wayne Matthews 11,112
<PAGE>
EXHIBIT 5.1
February 16, 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 333,270
shares of the Company's common stock, par value $.10 per share (the
"Common Stock"), (i) 83,270 of which may be issued upon the exercise of
stock options granted pursuant to substantially identical Option
Agreements dated as of November 24, 1998 between the Company and each of
the persons listed on Schedule A attached hereto, and (ii) 250,000 of
which may be issued upon the exercise of stock options granted pursuant
to substantially identical Option Agreements dated as of November 24,
1998 between the Company and each of the persons listed on Schedule B
attached hereto (collectively, the "Option Agreements"). The Option
Agreements have been entered into pursuant to the terms of the Agreement
and Plan of Merger (the "Merger Agreement") dated as of October 30, 1998,
among the Company, Publicker Smart Card Acquisition Co., Tritheim
Technologies, Inc. ("Tritheim") and certain stockholders and holders of
options to purchase stock of Tritheim.
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 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
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
<PAGE>
SCHEDULE A
Options to Purchase PubliCARD, Inc. Shares Issued in Exchange for
Options to Purchase Tritheim Shares
Holder of Option PubliCARD, Inc. Shares Exercise Price Per Share
issuable upon exercise
of the options
William Marc Postlewaite 32,405 $2.00
Kim J. Vogel 22,308 $2.00
Vincent T. Poole 15,931 $2.00
Stephen A. Ewald 7,930 $2.00
Wayne Matthews 2,348 $2.00
Bob Pauley 2,348 $2.00
Total PubliCARD, Inc. Shares 83,270
<PAGE>
SCHEDULE B
Options to Purchase PubliCARD, Inc. Shares
Employee Name Number of PubliCARD, Exercise Price Per Share
Inc. Shares issuable
upon exercise of the
options
William Marc Postlewaite 21,579 $2.00
Kim J. Vogel 11,171 $2.00
Vincent T. Poole 71,338 $2.00
Stephen A. Ewald 66,218 $2.00
Cy Allen Hudson 15,427 $2.00
John Pauley 13,391 $2.00
Bret Tobey 8,896 $2.00
Laura Craig 8,789 $2.00
Jay Thomason 8,789 $2.00
Terry Best 13,290 $2.00
Wayne Matthews 11,112 $2.00
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 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
Stamford, Connecticut
February 12, 1999
