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As filed with the Securities and Exchange Commission on August 10, 2000
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PubliCARD, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-0991870
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
620 FIFTH AVENUE
SEVENTH FLOOR
NEW YORK, NEW YORK 10020
(Address of Principal Executive Offices) (Zip Code)
PubliCARD, INC. 1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
JAN-ERIK ROTTINGHUIS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PubliCARD, INC.
620 FIFTH AVENUE
SEVENTH FLOOR
NEW YORK, NEW YORK 10020
(Name and address of agent for service)
(212) 651-3119
(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
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES TO AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PRICE PER SHARE(2) OFFERING PRICE REGISTRATION FEE
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Common stock, par value $0.10 per 340,000(1) 2.625 892,500 235.62
share
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Common stock, par value $0.10 per 410,000(3) 2.625 1,076,250 284.13
share
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(1) Represents the remaining number of shares of common stock available for
issuance upon exercise of stock options granted under the PubliCARD, Inc.
1999 Stock Option Plan for Non-Employee Directors. The total number of
shares of common stock reserved for issuance under that plan is 750,000.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h).
(3) Represents the total number of shares of common stock which may be issued
upon exercise of outstanding stock options granted under the PubliCARD,
Inc. 1999 Stock Option Plan for Non-Employee Directors.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents or portions of these documents we filed with the
Securities and Exchange Commission , pursuant to the Securities Exchange Act of
1934 are incorporated into this registration statement by reference:
1. Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999.
2. Amendment No. 1 to our Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, on Form 10-K/A.
3. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000.
4. Our Current Report on Form 8-K filed on July 10, 2000.
5. A description of our common stock which is included in a registration
statement filed pursuant to the Securities Exchange Act, including any
amendments or reports which are filed for the purpose of updating that
description.
All documents we file after the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities 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 and to be a part of
this registration statement from the date the documents are filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded, for
purposes of this registration statement, to the extent that a statement
contained in this registration statement or in any other subsequently filed
document which also is or is deemed to be incorporated by reference modifies or
supersedes the 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, known as 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, other than a derivative action by or in the
right of the corporation, and permits 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,
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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 our by-laws or otherwise. These 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 that capacity, whether
or not the corporation would have the power to indemnify the director or officer
against that liability.
Under Section 1713 of the PBCL, if a by-law adopted by the shareholders
so provides, a director shall not be personally liable, as such, for monetary
damages for any action taken or omitted unless the director both (a) breached or
failed to perform the duties of his or her office under Pennsylvania law and (b)
the breach or failure constituted self dealing, willful misconduct or
recklessness.
Article V of our by-laws provides for both the limitation of the monetary
liability of our directors and for the mandatory indemnification of our
directors and officers.
Under Article V of our by-laws, a director will not be held personally
liable to us, our shareholders or third parties for monetary damages as a
consequence of any act or omission unless the director both (a) breached or
failed to perform the duties of his or her office under Pennsylvania law and (b)
the breach or failure constituted self dealing, willful misconduct or
recklessness.
In addition, under Article V of our 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 our request or for our benefit, will be indemnified
and held harmless by us 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 that 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 us
or in our right, 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.
We currently maintain directors' and officers' liability insurance
providing for coverage of up to $15,000,000. Our assets and equity, however, may
be called upon to provide indemnification to officers and directors to the
extent any indemnified amount exceeds our liability insurance limit, or to the
extent any matter required to be indemnified by our by-laws falls outside the
scope of the policy's coverage.
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To the extent that indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors and officers pursuant to
the provisions described above, we have been informed that, in the opinion of
the SEC, 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:
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EXHIBITS DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation of PubliCARD.
Incorporated by reference to PubliCARD's Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1998,
dated November 9, 1998.
4.2 By-laws of PubliCARD. Incorporated by reference to
PubliCARD's Annual Report on Form 10-K for the fiscal year
ended December 31, 1990, dated March 28, 1991.
4.3 PubliCARD, Inc. 1999 Stock Option Plan for Non-Employee
Directors. Incorporated by reference from PubliCARD's Annual
Report on Form 10-K for the year ended December 31, 1999,
dated March 30, 2000.
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 Power of Attorney (included on the signature page).
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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 to be the initial bona
fide offering thereof.
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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. That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report pursuant
to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act 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 New York, State of New York, on August 10, 2000.
PUBLICARD, INC.
By: /s/ JAN-ERIK ROTTINGHUIS
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Jan-Erik Rottinghuis
President and Chief Executive Officer
POWER OF ATTORNEY. Each person whose signature appears below hereby
authorizes each of Jan-Erik Rottinghuis 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 of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
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SIGNATURE TITLE DATE
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/s/ JAN-ERIK ROTTINGHUIS Director, President and Chief Executive Officer (principal
-------------------------- executive officer) August 10, 2000
Jan-Erik Rottinghuis
/s/ HARRY I. FREUND
-------------------------- Director and Chairman August 10, 2000
Harry I. Freund
/s/ JAY S. GOLDSMITH
-------------------------- Director and Vice Chairman August 10, 2000
Jay S. Goldsmith
/s/ CLIFFORD B. COHN
-------------------------- Director August 10, 2000
Clifford B. Cohn
/s/ L.G. SCHAFRAN
-------------------------- Director August 10, 2000
L.G. Schafran
/s/ HATIM A. TYABJI
-------------------------- Director August 10, 2000
Hatim A. Tyabji
/s/ ANTONIO L. DELISE Vice President, Chief Financial Officer and Secretary (principal
-------------------------- financial and accounting officer) August 10, 2000
Antonio L. DeLise
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EXHIBIT INDEX
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EXHIBITS DESCRIPTION
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4.1 Amended and Restated Articles of Incorporation of PubliCARD.
Incorporated by reference to PubliCARD's Quarterly Report on
Form 10-Q for the quarterly period ended September 30, 1998,
dated November 9, 1998.
4.2 By-laws of PubliCARD. Incorporated by reference to
PubliCARD's Annual Report on Form 10-K for the fiscal year
ended December 31, 1990, dated March 28, 1991.
4.3 PubliCARD, Inc. 1999 Stock Option Plan for Non-Employee
Directors. Incorporated by reference from PubliCARD's
Annual Report on Form 10-K for the year ended December 31,
1999, dated March 30, 2000.
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 Power of Attorney (included on the signature page).
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