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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PUBLICARD, INC.
(Exact name of registrant as specified in its charter)
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PENNSYLVANIA 23-0991870
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
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620 FIFTH AVENUE
SEVENTH FLOOR
NEW YORK, NEW YORK 10020
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
JAN-ERIK ROTTINGHUIS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PUBLICARD, INC.
620 FIFTH AVENUE
SEVENTH FLOOR
NEW YORK, NEW YORK 10020
(212) 489-8021
(Name, address, including zip code, and
telephone number,
including area code, of agent for
service)
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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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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common stock, par value $0.10
per share.................. 118,369 Shares $8.47 $1,002,585 $264.68
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS
118,369 SHARES
COMMON STOCK
PUBLICARD, INC.
The shareholders of our company that are identified in this prospectus are
offering for sale from time to time under this prospectus up to 118,369 shares
of our common stock. The selling shareholders may sell these shares from time to
time on the over-the-counter market in regular brokerage transactions, in
transactions directly with market makers or in privately negotiated
transactions. For additional information on the methods of sale, you should
refer to the section entitled "Plan of Distribution" on page 11. We will not
receive any portion of the proceeds from the sale of these shares by the selling
shareholders.
Our common stock is traded on the Nasdaq National Market under the symbol
"CARD." On March 30, 2000, the last reported sale price of our common stock on
the Nasdaq National Market was $8.25 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 2 TO READ ABOUT CERTAIN RISKS THAT YOU
SHOULD CONSIDER BEFORE BUYING SHARES OF OUR COMMON STOCK.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY REGULATORY BODY HAS
APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is ,2000
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TABLE OF CONTENTS
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Risk Factors................................................ 2
Use of Proceeds............................................. 10
Selling Shareholders........................................ 10
Plan of Distribution........................................ 11
Where You Can Find More Information......................... 11
Legal Matters............................................... 12
Experts..................................................... 12
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In this prospectus, unless we indicate otherwise, "we," "us," "our" and
"PubliCARD" refer to PubliCARD, Inc. and our subsidiaries.
PubliCARD was incorporated in the Commonwealth of Pennsylvania in 1913. Our
principal executive offices are located at 620 Fifth Avenue, Seventh Floor, New
York, New York 10020. Our telephone number is (212) 489-8021.
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RISK FACTORS
You should carefully consider each of the following risks and all of the
other information set forth in this prospectus before deciding to invest in our
common stock. Some of the following risks relate principally to our business and
the industries in which we operate or in which we plan to operate in the future.
Other risks relate principally to the securities markets and ownership of our
common stock.
If any of the following risks and uncertainties develop into actual events,
our business, financial condition and results of operations could be materially
adversely affected, the trading price of our common stock could decline and you
may lose all or part of your investment.
Sections of this prospectus contain forward-looking statements, including,
without limitation, statements concerning possible or assumed future results of
operations of PubliCARD preceded by, followed by or that include the words
"believes," "expects," "anticipates," "estimates," "intends," "plans" or similar
expressions. For those statements, we claim the protection of the safe harbor
for forward-looking statements contained in the U.S. Private Securities
Litigation Reform Act of 1995.
Forward-looking statements are not guarantees of future performance. They
involve risks, uncertainties and assumptions. You should understand that such
statements made under "Risk Factors" and elsewhere in this document could affect
our future results and could cause those results to differ materially from those
expressed in such forward-looking statements.
RISKS RELATED TO THE BUSINESS OF PUBLICARD
WE HAVE A HISTORY OF OPERATING LOSSES AND NEGATIVE CASH FLOW, AND WE HAVE
ONGOING FUNDING OBLIGATIONS. We have incurred losses and experienced negative
cash flow from operating activities in the past, and we expect to incur losses
and experience negative cash flow from operating activities in the foreseeable
future. We incurred losses from continuing operations in 1997, 1998 and 1999 of
approximately $4.6 million, $8.4 million and $16.7, respectively. In addition,
we experienced negative cash flow from continuing operating activities of $5.0
million, $5.6 million and $8.5 in 1997, 1998 and 1999, respectively. We also
incurred a loss of $19.0 million from discontinued operations in 1999 and will
incur additional losses from discontinued operations if we realize less from the
disposition of those assets than we have estimated or if we are unable to
dispose of all of our discontinued operations by the end of the third quarter of
2000, as we currently anticipate.
We expect that our businesses will require on-going funding to support the
expansion of sales and marketing efforts, new product development, working
capital growth and capital expenditures. Also, we will need to fund our new
initiatives in the broadband market before we can reasonably expect to derive
any significant revenues from this market.
We also have continuing obligations to fund payments due under an
environmental consent decree and an underfunded pension plan. As of December 31,
1999, we were required to make future aggregate payments of $2.8 million through
April 2002 in connection with the environmental consent decree to which we are
subject. Consistent with the general practices of environmental enforcement
agencies, the consent decree does not eliminate our potential liability for
remediation of contamination that had not been known at the time of the
settlement. We sponsor a defined benefit pension plan, which was frozen in 1993.
As of December 31, 1999, the present value of the accrued benefit liabilities of
our pension plan exceeded the plan's assets by approximately $5.5 million. In
addition to the $1.0 million we were required to contribute to the plan for
1999, we are obligated to make continued contributions to the plan in accordance
with the rules and regulations prescribed by the Employee Retirement Income
Security Act of 1974. Future contribution levels depend in large measure on the
mortality rate of plan participants and the investment return on the plan
assets. For a discussion of these obligations and our results of operations, see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" in our Annual Report for the year ended December 31, 1999 and our
consolidated financial statements.
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OUR FUTURE PROFITABILITY DEPENDS LARGELY UPON PRODUCTS AND FUTURE PRODUCTS
THAT HAVE NOT YET PRODUCED ANY REVENUES. We believe that certain of our
products are viable, but have not yet generated any material sales. Our future
revenues and earnings depend in large part on the success of these products. Our
business is also based on products not yet developed. There are no assurances
that these products will be developed into working products or that a market
will develop for these products in the future.
WE HAVE LIMITED EXPERIENCE IN THE BROADBAND MARKET. We have only recently
begun to penetrate the broadband market. We are therefore subject to the risks
inherent in establishing a new business enterprise.
Our business model is new and unproven and may not generate sufficient
revenue for us to be successful. The volume of products and services distributed
using our technology may be too small to support or grow our business.
THE MARKET'S ACCEPTANCE OF OUR PRODUCTS IS UNCERTAIN. Demand for, and
market acceptance of, our products is subject to a high level of uncertainty due
to rapidly changing technology, new product introductions and changes in
customer requirements and preferences. The success of our products or any future
products also depends upon our ability to enhance our existing products and to
develop and introduce new products and technologies to meet customer
requirements. We face the risk that our current and future products will not
achieve market acceptance.
Interactive television is a new and emerging business, and we cannot
guarantee that it will attract widespread demand or market acceptance. Our
success in this area depends upon, among other things, broad acceptance of the
concept of interactive television by industry participants, including broadcast
and pay-television networks and system operators and manufacturers of
televisions and set-top boxes, including their ability to successfully market
interactive television to television viewers and advertisers. There have been
several well-financed, high-profile attempts in the U.S. to develop and deploy
systems in the broad category of interactive television. None of these attempts
has resulted in large scale deployment, and many key industry participants have
avoided participating in interactive television for a variety of reasons,
including:
- inconsistent quality of service;
- need for new and expensive hardware in homes;
- inadequate transmission facilities and broadcast centers;
- complicated and expensive processes for creating interactive content; and
- inability to align the conflicting interests of various participants.
Accordingly, such participants may perceive interactive television
negatively and be reluctant to participate.
In addition, other participants in the television industry must accept and
support interactive television for it to be successful. For instance,
broadcasters will need to add interactive features to their programming and
commercial vendors will need to embrace e-commerce over interactive television.
We cannot assure you that these parties will provide such support.
WE DEPEND ON A RELATIVELY SMALL NUMBER OF CUSTOMERS FOR A MAJORITY OF OUR
REVENUES. We rely on a limited number of customers in our business. The
application specific integrated circuits, also known as ASICs, we provide to
Motorola's General Instruments for inclusion in their set-top boxes accounted
for 56% of our revenue and 28% of our receivable balance as of December 31,
1999. We expect to continue to depend upon a relatively small number of
customers for a majority of the revenues in our business.
We generally do not enter into long-term supply commitments with our
customers. Instead, we bid on a project basis and have supply contracts in place
for each project. Significant reductions in sales to any of our largest
customers would have a material adverse effect on our business. In addition, we
generate significant accounts receivable and inventory balances in connection
with providing products to our
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customers. A customer's inability to pay for our products could have a material
adverse effect on our results of operations.
WE DEPEND ON THIRD PARTY MANUFACTURERS WHO ARE OUTSIDE OF OUR CONTROL. We
outsource manufacturing needs of a significant portion of our products to third
party contract manufacturers. Outsourcing of manufacturing involves risks with
respect to quality assurance, cost and the absence of engineering support. In
addition, financial, operational or supply problems encountered by the third
party manufacturers we use or may use in the future, their subcontractors or
their suppliers could result in our inability to obtain timely delivery, if at
all, of finished products. Any such difficulties would adversely affect our
financial results.
OUR FUTURE SUCCESS DEPENDS ON OUR ABILITY TO KEEP PACE WITH TECHNOLOGICAL
CHANGES AND INTRODUCE NEW PRODUCTS IN A TIMELY MANNER. The rate of
technological change currently affecting the television industry is particularly
rapid compared to other industries. The migration of television from analog to
digital transmission, the convergence of television, the Internet,
communications and other media and other emerging trends are creating a dynamic
and unpredictable environment in which to operate. Our ability to anticipate
these trends and adapt to new technologies is critical to our success. Because
new product development commitments must be made well in advance of actual
sales, new product decisions must anticipate future demand as well as the speed
and direction of technological change. Our ability to remain competitive will
depend upon our ability to develop in a timely and cost effective manner new and
enhanced products at competitive prices. New product introductions or
enhancements by our competitors could cause a decline in sales or loss of market
acceptance of our existing products and lower profit margins.
Our success in developing, introducing and selling new and enhanced
products depends upon a variety of factors, including:
- product selections;
- timely and efficient completion of product design and development;
- timely and efficient implementation of manufacturing processes;
- effective sales, service and marketing;
- price; and
- product performance in the field.
Our ability to develop new products also depends upon the success of our
research and development efforts. Our research and development expenditures for
the year ended December 31, 1999 were $1.3 million and we plan to increase this
substantially in the near term. We cannot assure you that these expenditures
will lead to the development of viable products. We may need to devote
substantially more resources to our research and development efforts in the
future.
The market for digital rights management solutions is fragmented and marked
by rapid technological change, frequent new product introductions and
enhancements, uncertain product life cycles and changes in customer demands. To
succeed, we must develop and introduce, in response to customer and market
demands, software that offers features and functionality that are not currently
available in the market. Any delays in our ability to develop and release
products will seriously harm our business and operating results. In the past, we
have experienced delays in new product releases, and we may experience similar
delays in the future.
THE HIGHLY COMPETITIVE MARKETS IN WHICH WE OPERATE COULD HAVE A MATERIAL
ADVERSE EFFECT ON OUR BUSINESS AND OPERATING RESULTS. The markets in which we
operate are intensely competitive and characterized by rapidly changing
technology. We compete against numerous companies, many of which have greater
resources than we do, and we believe that competition is likely to intensify.
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We believe that the principal competitive factors affecting the broadband
market are:
- the extent to which products support industry standards and are capable
of being operated or integrated with other products;
- technical features and level of security;
- strength of distribution channels;
- price;
- product reputation, reliability, quality, performance and customer
support;
- product features such as adaptability, functionality and ease of use; and
- competitor reputation, positioning and resources.
We cannot assure you that competitive pressures will not have a material
adverse effect on our business and operating results. Many of our current and
potential competitors have longer operating histories in the broadband industry
and significantly greater financial, technical, sales, customer support,
marketing and other resources, as well as greater name recognition and a larger
installed base of their products and technologies than our company.
Additionally, there can be no assurance that new competitors will not enter the
broadband market. Increased competition would likely result in price reductions,
reduced margins and loss of market share, any of which would have a material
adverse effect on our business and operating results.
The market for broadband solutions is new, intensely competitive and
rapidly evolving. We expect competition to continue to increase both our
existing competitors and new market entrants. Our primary competition currently
comes from or is anticipated to come from:
- companies offering payment solutions, including Trintech and VeriFone;
- companies offering chip technology infrastructures, including Gemplus,
Philips and SCM Microsystems;
- companies offering closed environment solutions, including small value
electronic cash systems and database management solutions, such as
CyberMark and Danyl Schlumberger; and
- companies that offer digital rights management solutions, such as
InterTrust, Wave, Preview Systems, Aladdin, IBM and Microsoft.
Many of our current and potential competitors have longer operating
histories and significantly greater financial, technical, sales, customer
support, marketing and other resources, as well as greater name recognition and
a larger installed base of their products and technologies than we do. Many of
these companies have broader customer relationships that could be leveraged,
including relationships with many of our customers. These companies also have
more established customer support and professional services organizations than
we do. In addition, a number of companies with significantly greater resources
than we have could attempt to increase their presence in the broadband market by
acquiring or forming strategic alliances with our competitors, resulting in
increased competition.
OUR LONG PRODUCT SALES CYCLES SUBJECT US TO RISK. Our products fall into
two categories, those that are standardized and ready to install and use and
those that require significant development efforts to implement within the
purchasers' own systems. Those products requiring significant development
efforts tend to be newly developed technologies and software applications that
can represent major investments for customers. We rely on potential customers'
internal review processes and systems requirements. The implementation of some
of our products involves deliveries of small quantities for pilot programs and
significant testing by the customers before firm orders are received for
production volumes, or lengthy beta testing of software solutions. For these
more complex products, the sales process may take one year or longer, during
which time we may expend significant financial, technical and management
resources, without any certainty of a sale.
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WE MAY BE LIMITED IN OUR USE OF OUR FEDERAL NET OPERATING LOSS
CARRYFORWARDS. As of December 31, 1999, we had federal net operating loss
carryforwards, subject to review by the Internal Revenue Service, totaling
approximately $88.0 million for federal income tax purposes, approximately $12.0
million of which expired at the end of 2000, $9.0 million of which will expire
at the end of 2001 and $25.0 million of which will expire at the end of 2002. We
do not expect to earn any significant taxable income prior to 2002, and may not
do so until later. A federal net operating loss can generally be carried back
two or three years and then forward fifteen or twenty years (depending on the
year in which the loss was incurred), and used to offset taxable income earned
by a company (and thus reduce its income tax liability).
Section 382 of the Internal Revenue Code provides that when a company
undergoes an "ownership change," the corporation's use of its net operating
losses is limited in each subsequent year. An "ownership change" occurs when, as
of any testing date, the sum of the increases in ownership of each shareholder
that owns five percent or more of the value of a company's stock as compared to
that shareholder's lowest percentage ownership during the preceding three-year
period exceeds fifty percentage points. For purposes of this rule, certain
shareholders who own less than five percent of a company's stock are aggregated
and treated as a single five-percent shareholder. We intend to issue a
substantial number of shares of our common stock in connection with public and
private offerings. In addition, the exercise of outstanding warrants and certain
options to purchase shares of our common stock may require us to issue
additional shares of our common stock. The issuance of a significant number of
shares of common stock could result in an "ownership change." If we were to
experience such an "ownership change," we estimate that we would not be able to
use a substantial amount of our available federal net operating loss
carryforwards to reduce our taxable income.
The extent of the actual future use of our federal net operating loss
carryforwards is subject to inherent uncertainty because it depends on the
amount of otherwise taxable income we may earn. We cannot give any assurance
that we will have sufficient taxable income in future years to use any of our
federal net operating loss carryforwards before they would otherwise expire.
OUR PROPRIETARY TECHNOLOGY IS DIFFICULT TO PROTECT AND MAY INFRINGE ON THE
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. Our success depends
significantly upon our proprietary technology. We rely on a combination of
patent, copyright and trademark laws, trade secrets, confidentiality agreements
and contractual provisions to protect our proprietary rights. We seek to protect
our software, documentation and other written materials under trade secret and
copyright laws, which afford only limited protection. We currently have a number
of patent applications pending. We cannot assure you that any of our
applications will be approved, that any new patents will be issued, that we will
develop proprietary products or technologies that are patentable, that any
issued patent will provide us with any competitive advantages or will not be
challenged by third parties. Furthermore, we cannot assure you that the patents
of others will not have a material adverse effect on our business and operating
results.
If our technology or products are determined to infringe upon the rights of
others, and we were unable to obtain licenses to use the technology, we could be
required to cease using the technology and stop selling the products. We may not
be able to obtain a license in a timely manner on acceptable terms or at all.
Any of these events would have a material adverse effect on our financial
condition and results of operations.
Patent disputes are common in technology-related industries. We cannot
assure you that we will have the financial resources to enforce or defend a
patent infringement or proprietary rights action. As the number of products and
competitors in the broadband market grows, the likelihood of infringement claims
also increases. Any claim or litigation may be time-consuming and costly, cause
product shipment delays or require us to redesign our products or require us to
enter into royalty or licensing agreements. Any of these events would have a
material adverse effect on our business and operating results. Despite our
efforts to protect our proprietary rights, unauthorized parties may attempt to
copy aspects of our products or to use our proprietary information and software.
In addition, the laws of some foreign countries do not protect proprietary and
intellectual property rights to as great an extent as do the laws of the United
States. Our means of protecting our proprietary and intellectual property rights
may not be adequate. There is a risk
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that our competitors will independently develop similar technology, duplicate
our products or design around patents or other intellectual property rights.
IF THIRD PARTIES DO NOT DEPLOY OUR TECHNOLOGY AND CREATE A MARKET FOR
DIGITAL COMMERCE, OUR BUSINESS WILL BE HARMED. Relationships with leading
content, technology and commerce service providers are critical to our success.
Our business and operating results would be harmed to the extent our strategic
partnerships fail, in whole or in part, to:
- deploy our technology;
- develop an infrastructure for the sale and delivery of digital goods and
services;
- generate transaction fees from the sale of digital content and services;
and
- develop and deploy new applications.
THE NATURE OF OUR PRODUCTS SUBJECTS US TO PRODUCT LIABILITY RISKS. Our
customers may rely on certain of our current products and products in
development to prevent unauthorized access to digital content, computer
networks, digital video broadcasting and real property. A malfunction of or
design defect in certain of our products could result in tort or warranty
claims. Although we attempt to reduce the risk of exposure from such claims
through warranty disclaimers and liability limitation clauses in our sales
agreements and by maintaining product liability insurance, we cannot assure you
that these measures will be effective in limiting our liability for any damages.
Any liability for damages resulting from security breaches could be substantial
and could have a material adverse effect on our business and operating results.
In addition, a well-publicized actual or perceived security breach involving our
conditional access or security products could adversely affect the market's
perception of our products in general, regardless of whether any breach is
attributable to our products. This could result in a decline in demand for our
products, which would have a material adverse effect on our business and
operating results.
WE MAY HAVE DIFFICULTY RETAINING OR RECRUITING PROFESSIONALS FOR OUR
BUSINESS. Our future success and performance is dependent on the continued
services and performance of our senior management and other key personnel. There
is a shortage of qualified marketing, technical and financial personnel in our
industry, and the competition for such personnel is intense. Accordingly, the
loss of the services of any of our executive officers or other key employees
could materially adversely affect our business.
Our business requires experienced software programmers, creative designers
and application developers, and our success depends on identifying, hiring,
training and retaining such experienced, knowledgeable professionals. If a
significant number of our current employees or any of our senior technical
personnel resign, or for other reasons are no longer employed by us, we may be
unable to complete or retain existing projects or bid for new projects of
similar scope and revenues. In addition, former employees may compete with us in
the future.
Even if we retain our current employees, our management must continually
recruit talented professionals in order for our business to grow. There is
currently a shortage of qualified senior technical personnel in the software
development field, and this shortage is likely to continue. Furthermore, there
is significant competition for employees with the skills required to perform the
services we offer. We cannot assure you that we will be able to attract a
sufficient number of qualified employees in the future to sustain and grow our
business, or that we will be successful in motivating and retaining the
employees we are able to attract. If we cannot attract, motivate and retain
qualified professionals, our business, financial condition and results of
operations will suffer.
IF STANDARDS FOR DIGITAL RIGHTS MANAGEMENT ARE NOT ADOPTED, CONFUSION AMONG
CONTENT PROVIDERS, DISTRIBUTORS AND CONSUMERS MAY DEPRESS THE LEVEL OF DIGITAL
COMMERCE, WHICH WOULD REDUCE OUR REVENUES. If standards for digital rights
management are not adopted or complied with, content providers may delay
distributing content until they are confident that the technology by which the
content is to be distributed will be commercially accepted. Standards for the
distribution of various digital content might not develop or might be found to
violate antitrust laws or fair use of copyright policies. In addition, the
failure to
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develop a standard among device manufacturers may affect the market for digital
goods and services. As a result, consumers may delay purchasing products and
services that include our technology if they are uncertain of commercial
acceptance of the standards with which our technology complies. Consequently, if
a standard format for the secure delivery of content on the Internet is not
adopted, or if the standards are not compatible with our digital rights
management technology, our business and operating results would likely be
harmed.
OUR ARTICLES OF INCORPORATION AND BY-LAWS, CERTAIN CHANGE OF CONTROL
AGREEMENTS, OUR RIGHTS PLAN AND PROVISIONS OF PENNSYLVANIA LAW COULD DETER
TAKEOVER ATTEMPTS.
Blank check preferred stock. Our board of directors has the authority to
issue up to 136,566 shares of preferred stock and to fix the rights,
preferences, privileges and restrictions, including voting rights, of these
shares without any further vote or action by the holders of our common stock.
The rights of the holders of any preferred stock that may be issued in the
future may adversely affect the rights of the holders of our common stock. The
issuance of preferred stock could make it more difficult for a third party to
acquire a majority of our outstanding voting stock, thereby delaying, deferring
or preventing a change of control. Such preferred stock may have other rights,
including economic rights, senior to our common stock, and as a result, the
issuance of the preferred stock could limit the price that investors might be
willing to pay in the future for shares of our common stock and could have a
material adverse effect on the market value of our common stock.
Rights plan. Our rights plan entitles the registered holders of rights to
purchase shares of our class A preferred stock upon the occurrence of certain
events, and may have the effect of delaying, deferring or preventing a change of
control.
Change of control agreements. We are a party to change of control
agreements which provide for payments to certain of our directors and executive
officers under certain circumstances following a change of control. Since the
change of control agreements require large cash payments to be made by any
person effecting a change of control, these agreements may discourage takeover
attempts.
The change of control agreements provide that, if the services of any
person party to a change of control agreement are terminated within three years
following a change of control, that individual will be entitled to receive, in a
lump sum within 10 days of the termination date, a payment equal to 2.99 times
that individual's average annual compensation for the shorter of the five years
preceding the change of control and the period the individual received
compensation from us for personal services. Assuming a change of control were to
occur at the present time, payments in the following amounts would be required:
Mr. Harry I. Freund -- $972,000; Mr. Jay S. Goldsmith -- $972,000; and Mr. David
L. Herman -- $104,000. If any such payment, either alone or together with others
made in connection with the individual's termination, is considered to be an
excess parachute payment under the Internal Revenue Code, the individual will be
entitled to receive an additional payment in an amount which, when added to the
initial payment, would result in a net benefit to the individual, after giving
effect to excise taxes imposed by Section 4999 of the Internal Revenue Code and
income taxes on such additional payment, equal to the initial payment before
such additional payment. We would not be able to deduct these payments for
income tax purposes.
Pennsylvania law. We are a Pennsylvania corporation. Anti-takeover
provisions of Pennsylvania law could make it difficult for a third party to
acquire control of us, even if such change of control would be beneficial to our
shareholders.
WE ARE SUBJECT TO GOVERNMENT REGULATION. The telecommunications, media,
broadcast and cable television industries are subject to extensive regulation by
governmental agencies. These governmental agencies continue to oversee and adopt
legislation and regulation over these industries, which may affect our business,
market participants with which we have relationships or the acceptance of
interactive television in general. In addition, future legislation or regulatory
requirements regarding privacy issues could be enacted to require notification
to users that captured data may be used by marketing entities to
8
<PAGE> 11
target product promotion and advertising to that user. Any of these developments
may materially adversely affect our business
Federal, state and local regulations impose various environmental controls
on the discharge of chemicals and gases, which may be used in our present and
future assembly processes. Moreover, changes in such environmental rules and
regulations may require us to invest in capital equipment and implement
compliance programs in the future. Any failure by our company to comply with
environmental rules and regulations, including the discharge of hazardous
substances, would subject us to liabilities and would materially adversely
affect our operations.
RISKS RELATED TO COMMON STOCK
THE MARKET PRICE OF OUR COMMON STOCK MAY FLUCTUATE SIGNIFICANTLY. The
stock market in general and the market for shares of technology companies in
particular have recently experienced extreme price fluctuations, which have
often been unrelated to the operating performance of the affected companies. We
believe that the principal factors that may cause price fluctuations are:
- fluctuations in our financial results;
- general conditions or developments in the technology and broadband
industry and the worldwide economy;
- sales of our common stock into the marketplace;
- the number of market makers for our common stock;
- announcements of technological innovations or new or enhanced products by
us or our competitors or customers;
- a shortfall in revenue, gross margin, earnings or other financial results
from operations or changes in analysts' expectations; and
- developments in our relationships with our customers and suppliers.
We cannot be certain that the market price of our common stock will not
experience significant fluctuations in the future, including fluctuations that
are adverse and unrelated to our performance.
THE MARKET PRICE OF OUR COMMON STOCK MAY DECREASE IF A LARGE NUMBER OF
SHARES IS SOLD IN THE FUTURE. Future sales of our common stock in the public
market, or the issuance of shares of common stock upon the exercise of stock
options and warrants or otherwise, could adversely affect the market price of
our common stock and impair our ability to raise capital through the sale of
equity or equity-related securities. As of the date of this prospectus, the
following number of shares of common stock will be issued or issuable:
<TABLE>
<S> <C>
Issued and outstanding...................................... 22,755,499
Issuable upon exercise of currently-exercisable stock
options and warrants(1)................................... 4,329,142
Issuable upon exercise of outstanding stock options and
warrants, whether or not currently exercisable(2)......... 7,053,191
Issuable pursuant to the Termination, Severance and Release
Agreement, dated as of December 3, 1999, between PubliCARD
and James J. Weis(3)...................................... 19,536
</TABLE>
- ---------------
(1) Currently exercisable at exercise prices ranging from $1.12 to $10.75 per
share.
(2) Of these, 524,232 become exercisable in 2000 at exercise prices ranging from
$1.12 to $12.50 per share; 1,206,015 become exercisable in 2001 at exercise
prices ranging from $1.12 to $12.50 per share; and 993,802 become
exercisable in 2002 and thereafter at exercise prices ranging from $1.12 to
$10.75 per share.
(3) See Note 3 under "Selling Shareholders".
9
<PAGE> 12
Of the shares identified in the table above, 7,334,431 are "restricted
securities" within the meaning of Rule 144 under the Securities Act, and may not
be sold in the absence of registration under the Securities Act unless an
exemption from registration is available. Such restricted securities will be
eligible for sale in the public market subject to compliance with Rule 144. In
addition, other exemptions may be available for sales of such restricted
securities held by non-affiliates of our company.
We cannot predict the effect, if any, that market sales of shares of common
stock, or the availability of such shares of common stock for sale, will have on
the market price of the shares of common stock prevailing from time to time.
Nevertheless, sales of substantial amounts of shares of common stock in the
public market, or the perception that such sales could occur, could adversely
affect prevailing market prices for the shares of common stock and could impair
our ability to raise capital through an offering of our equity securities.
USE OF PROCEEDS
The proceeds from the sale of shares of common stock under this prospectus
are solely for the account of the selling shareholders. Accordingly, we will not
receive any proceeds from the sale of the shares being sold by the selling
shareholders under this prospectus.
10
<PAGE> 13
SELLING SHAREHOLDERS
The following table sets forth certain information known to us with respect
to beneficial ownership of PubliCARD common stock as of February 28, 2000 by
each selling shareholder. The following table assumes that the selling
shareholders sell all of the shares registered under the registration statement
of which this prospectus forms a part and shown as beneficially owned by them.
PubliCARD is unable to determine the exact number of shares that actually will
be sold.
The number and percentage of shares beneficially owned is based on
22,755,499 shares issued and outstanding as of March 31, 2000, determined in
accordance with Rule 13d-3 of the Securities Exchange Act of 1934, and the
information is not necessarily indicative of beneficial ownership for any other
purpose. Under such rule, beneficial ownership includes any shares as to which a
selling shareholder has sole or shared voting power or investment power and also
any shares which that selling shareholder has the right to acquire within the
date of this prospectus through the exercise of any stock option or other
rights.
<TABLE>
<CAPTION>
COMMON STOCK MAXIMUM NUMBER COMMON STOCK
BENEFICIALLY OWNED OF SHARES OF BENEFICIALLY OWNED
PRIOR TO THIS OFFERING COMMON STOCK TO AFTER THIS OFFERING(1)
---------------------- BE SOLD IN THIS ----------------------
SELLING SHAREHOLDER NUMBER PERCENT OFFERING NUMBER PERCENT
- ------------------- --------- --------- ------------------- --------- ---------
<S> <C> <C> <C> <C> <C>
Bruce Urquhart(2).................... 241,333 1.1% 66,333 175,000 *
James J. Weis........................ 489,017 2.1% 52,036(3) 436,981 1.9%
</TABLE>
- ---------------
(1) Assumes the maximum number of shares registered under the registration
statement of which this prospectus forms a part is sold.
(2) Mr. Urquhart and PubliCARD jointly owned Greenwald Intellicard, Inc. until
February 2000, when PubliCARD purchased Mr. Urquhart's interest.
(3) Includes 32,500 shares of common stock issued to Mr. Weis in January 2000
pursuant to the Termination, Severance and Release Agreement, dated as of
December 3, 1999, between PubliCARD and Mr. Weis. Also includes 19,536
shares which may be issued to Mr. Weis pursuant to the Termination,
Severance and Release Agreement; such agreement provides that Mr. Weis is
entitled to receive severance at the rate of $25,722.22 per month during the
period from October 2000 through June 2001. During that period, if Mr. Weis
becomes employed by an unrelated third party, PubliCARD will be obligated to
pay to Mr. Weis the balance of such monthly installments in a lump-sum
issuance of shares of common stock, valued at the average of the closing
prices of the common stock on the Nasdaq National Market for the ten trading
days immediately preceding the date Mr. Weis becomes employed. For purposes
of determining the number of shares to which Mr. Weis may become entitled
that are being registered hereby, PubliCARD assumed that the maximum number
of shares issuable to Mr. Weis is 19,536, which was calculated by
multiplying the $25,722.22 monthly installment by nine, the number of months
such installment is payable, and dividing that amount by $11.8501, the
average of the closing prices of the common stock on the Nasdaq National
Market for the ten-day trading period preceding March 31, 2000.
* Less than 1%.
PLAN OF DISTRIBUTION
A total of 118,369 shares of PubliCARD common stock may be offered and sold
from time to time by the selling shareholders under this prospectus. Each
selling shareholder will act independently from PubliCARD in making decisions
with respect to the timing, manner and size of each sale. Each selling
shareholder may sell all or a portion of the shares owned by him from time to
time through the Nasdaq National Market and may sell shares of PubliCARD common
stock to or through one or more broker-dealers at prices prevailing on the
Nasdaq National Market at the times of such sales. Each selling shareholder may
also make private sales directly or through one or more broker-dealers.
Broker-dealers participating in such transactions may receive compensation in
the form of discounts, concessions or
11
<PAGE> 14
commissions from the selling shareholders. The selling shareholders and any
broker-dealers who act in connection with sales of PubliCARD common stock may be
deemed to be "underwriters" as that term is defined in the Securities Act, and
any commissions received by them and profit on any resale of the shares of
PubliCARD common stock might be deemed to be underwriting discounts and
commissions under the Securities Act. In effecting sales, broker-dealers engaged
by a selling shareholder may arrange for other broker-dealers to participate.
The selling shareholders will pay all discounts and selling commissions, if
any, fees and expenses of counsel and other advisors to the selling
shareholders, or any of them, and any other expenses incurred in connection with
the registration and sale of the PubliCARD common stock, other than the
registration fee payable to the SEC hereunder, the listing fee to be paid for
listing the shares of PubliCARD common stock on the Nasdaq National Market, fees
and expenses relating to the registration or qualification of the shares of
PubliCARD common stock pursuant to any applicable state securities or "blue sky"
laws and the fees and expenses of PubliCARD's counsel and independent
accountants, which will be paid by PubliCARD.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3 relating to
the common stock being offered. This prospectus is filed as part of the
registration statement. Other parts of the registration statement are omitted
from this prospectus. Statements made in this prospectus concerning the contents
of any contract or other document are not necessarily complete. For a more
complete description of the matter involved, you should read the entire contract
or other document, as applicable.
We are required by the Securities Exchange Act of 1934 to file reports,
proxy statements and other information with the SEC. You may read and copy such
reports, proxy statements and other information at the SEC's public reference
facilities:
<TABLE>
<S> <C> <C>
WASHINGTON, D.C NEW YORK CHICAGO
Judiciary Plaza Seven World Trade Center Citicorp Center
450 Fifth Street, N.W Suite 1300 500 West Madison Street
Room 1024 New York, New York 10048 Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661-2511
</TABLE>
You may call 1-800-SEC-0330 for further information about the public
reference facilities. For a fee, the SEC will send copies of any of our filings
to you. In addition, our filed reports, proxy statements and other information
are contained in the Internet website maintained by the SEC. The address is
http://www.sec.gov.
Our common stock is quoted on the Nasdaq National Market under the symbol
"CARD," and our SEC filings can also be read at the following address:
Nasdaq Operations
1735 K Street, N.W.
Washington, D.C. 20006
The SEC allows us to incorporate by reference the information we file with
it, which means we can disclose important information to you by referring you to
those documents. The information incorporated by reference is considered to be a
part of this prospectus, and later information that we file with the SEC will
automatically update and supersede this information. We incorporate by reference
our Annual Report on Form 10-K for the year ended December 31, 1999 and any
future filings made with the SEC under
12
<PAGE> 15
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
all of the securities are sold.
We will provide without charge, upon written or oral request, a copy of any
or all of the documents which are incorporated by reference into this
prospectus. Requests should be directed to:
PubliCARD, Inc.
620 Fifth Avenue
Seventh Floor
New York, New York 10020
Attention: Antonio L. DeLise
(212) 489-8021
LEGAL MATTERS
The validity of the common stock being offered hereby is being passed upon
for PubliCARD by Schnader Harrison Segal & Lewis LLP, Philadelphia,
Pennsylvania. In addition, certain other matters in connection with this
offering will be passed upon for PubliCARD by Kaye, Scholer, Fierman, Hays &
Handler, LLP, New York, New York.
EXPERTS
The audited financial statements of PubliCARD incorporated by reference
from PubliCARD's Annual Report on Form 10-K for the year ended December 31, 1999
have been audited by Arthur Andersen LLP, independent auditors, as set forth in
their reports thereon appearing therein, and are included in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
13
<PAGE> 16
- ------------------------------------------------------
- ------------------------------------------------------
You should rely only on the information contained in this prospectus. No
dealer, sales person or other person is authorized to give information that is
not contained in this prospectus. This prospectus is not an offer to sell nor is
it seeking an offer to buy these securities in any jurisdiction where the offer
or sale is not permitted. The information contained in this prospectus is
correct only as of the date of this prospectus, regardless of the time of the
delivery of this prospectus or any sale of these securities.
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
PUBLICARD, INC.
118,369 SHARES
COMMON STOCK
--------------------
PROSPECTUS
--------------------
, 2000
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 17
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated, except for the SEC
registration fee, fees and expenses, other than underwriting discounts and
commissions, in connection with the offering described in this registration
statement:
<TABLE>
<S> <C>
SEC registration fee........................................ $ 264.68
Legal fees and expenses..................................... $ 15,000.00
Accounting fees and expenses................................ $ 5,000.00
Miscellaneous............................................... $ 1,735.32
Total............................................. $ 22,000.00
======================
</TABLE>
ITEM 15. 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 (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 PubliCARD'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 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 PubliCARD's By-laws provides for both the limitation of the
monetary liability of the directors of PubliCARD and for the mandatory
indemnification of directors and officers.
Under Article V of PubliCARD's By-laws, a director will not be held
personally liable to PubliCARD, its 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.
II-1
<PAGE> 18
In addition, under Article V of PubliCARD'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 PubliCARD,
will be indemnified and held harmless by PubliCARD 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 PubliCARD, 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.
PubliCARD currently maintains directors' and officers' liability insurance
providing for coverage of up to $15,000,000. PubliCARD's assets and equity,
however, may be called upon to provide indemnification to officers and directors
to the extent any indemnified amount exceeds PubliCARD's liability insurance
limit, or to the extent any matter required to be indemnified by PubliCARD's
By-laws falls outside the scope of the policy's coverage.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors and officers pursuant to the foregoing provisions,
PubliCARD has 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.
II-2
<PAGE> 19
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- ------------------------------------------------------------
<S> <C>
4.1 Amended and Restated Articles of Incorporation, amended and
restated through November 2, 1998, 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 Certificate of Designation, Preferences and Rights of Class
A Preferred Stock, First Series. Incorporated by reference
from PubliCARD's Registration Statement on Form 8-A, dated
September 26, 1988.
4.4 Form of option to purchase common stock of PubliCARD issued
in connection with the Stock Purchase Agreement, dated April
12, 1985, among PubliCARD, Balfour Securities Corporation
and the Purchasers. Incorporated by reference from
PubliCARD's Annual Report on Form 10-K for the year ended
December 31, 1994, dated March 31, 1995.
4.5 Form of Warrant Agreement, dated 1986, between PubliCARD and
J. Henry Schroder Bank & Trust Company, as Warrant Agent.
Incorporated by reference from PubliCARD's Registration
Statement on Form S-1, dated October 8, 1986.
4.6 Form of Amendment No. 1 to Warrant Agreement, dated August
13, 1997, between PubliCARD and Publicker Industries Inc.,
successor to J. Henry Schroder Bank & Trust Company, as
Warrant Agent. Incorporated by reference from PubliCARD's
Current Report on Form 8-K, filed on August 15, 1997.
4.7 Form of Warrant Agreement, dated 1986, between PubliCARD and
Drexel Burnham Lambert Incorporated. Incorporated by
reference from PubliCARD's Registration Statement on Form
S-1, dated October 8, 1986.
4.8 Form of Amendment No. 1 to Warrant Agreement, dated August
13, 1997, between PubliCARD and Harry I. Freund and Jay S.
Goldsmith. Incorporated by reference from PubliCARD's
Current Report on Form 8-K, filed on August 15, 1997.
4.9 Amended and Restated Rights Agreement, dated as of August 7,
1998, between PubliCARD and Continental Stock Transfer &
Trust Company, as Rights Agent. Incorporated by reference
from PubliCARD's Current Report on Form 8-K, filed on
September 17, 1998.
5.1 Opinion of Schnader, Harrison, Segal & Lewis with respect to
legality of securities being registered.
10.1 Agreements, dated as of August 1987, between PubliCARD Harry
I. Freund, Jay S. Goldsmith and David L. Herman concerning a
change of control of PubliCARD. Incorporated by reference
from PubliCARD's Form 8 Amendment to PubliCARD's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1987, filed on December 18, 1987.
10.2 PubliCARD 1991 Stock Option Plan. Incorporated by reference
from PubliCARD's Form 8 Amendment to PubliCARD's Annual
Report on Form 10-K for the year ended December 31, 1991,
dated August 14, 1992.
10.3 PubliCARD 1993 Long Term Incentive Plan. Incorporated by
reference from PubliCARD's Annual Report on Form 10-K for
the year ended December 31, 1993, dated March 29, 1994.
10.4 PubliCARD Non-employee Director Stock Option Plan.
Incorporated by reference from PubliCARD's Annual Report on
Form 10-K for the year ended December 31, 1993, dated March
29, 1994.
10.5 Asset Purchase Agreement, dated August 16, 1996, among
Masterview Window Company, Inc., PubliCARD, Hanten
Acquisition Co. and Masterview Acquisition Corp.
Incorporated by reference from PubliCARD's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1996, dated
November 14, 1996.
10.6 Agreement and Plan of Merger, dated as of October 30, 1998,
among PubliCARD, Publicker Smart Card Acquisition Co.,
Tritheim Technologies, Inc. and the Security Holders of
Tritheim Technologies, Inc. Incorporated by reference from
PubliCARD's Current Report on Form 8-K, filed on December 7,
1998.
10.7 Termination, Severance and Release Agreement, dated as of
December 3, 1999, between PubliCARD and James J. Weis.
Incorporated by reference from PubliCARD's Annual Report on
Form 10-K for the year ended December 31, 1999, dated March
30, 2000.
10.8 Employment Agreement, dated as of November 2, 1999, between
PubliCARD and Jan-Erik Rottinghuis. Incorporated by
reference from PubliCARD's Annual Report on Form 10-K for
</TABLE>
II-3
<PAGE> 20
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT
- ----------- ------------------------------------------------------------
<S> <C>
10.9 PubliCARD's 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.
10.10 PubliCARD's 1999 Long-Term Incentive Plan. Incorporated by
reference from PubliCARD's Annual Report on Form 10-K for
the year ended December 31, 1999, dated March 30, 2000.
23.1 Consent of Arthur Andersen LLP
23.4 Consent of Schnader, Harrison, Segal & Lewis (included
Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this
registration statement).
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes 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.
(b) The undersigned registrant hereby undertakes 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.
(c) The undersigned registrant hereby undertakes 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.
(d) 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 section 13(a) or 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.
(e) 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.
(f) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
II-4
<PAGE> 21
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-3 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 March 31, 2000.
PUBLICARD, INC.
By: /s/ JAN-ERIK ROTTINGHUIS
------------------------------------
Name: Jan-Erik Rottinghuis
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby authorizes and appoints
Jan-Erik Rottinghuis and Antonio L. DeLise, and either of them, with full power
of substitution and resubstitution, as his true and lawful attorney-in-fact, to
sign and file with the Securities and Exchange Commission on his behalf,
individually and in all capacities, all amendments and post-effective amendments
to this Registration Statement, with exhibits thereto, and other documents in
connection therewith.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JAN-ERIK ROTTINGHUIS Director, Chief Executive Officer March 31, 2000
- --------------------------------------------------- and President (principal
Jan-Erik Rottinghuis executive officer)
/s/ HARRY I. FREUND Director and Chairman March 31, 2000
- ---------------------------------------------------
Harry I. Freund
/s/ JAY S. GOLDSMITH Director and Vice Chairman March 31, 2000
- ---------------------------------------------------
Jay S. Goldsmith
/s/ CLIFFORD B. COHN Director March 31, 2000
- ---------------------------------------------------
Clifford B. Cohn
/s/ DAVID L. HERMAN Director March 31, 2000
- ---------------------------------------------------
David L. Herman
/s/ L.G. SCHAFRAN Director March 31, 2000
- ---------------------------------------------------
L.G. Schafran
/s/ HATIM A. TYABJI Director March 31, 2000
- ---------------------------------------------------
Hatim A. Tyabji
/s/ ANTONIO L. DELISE Vice President, Chief Financial March 31, 2000
- --------------------------------------------------- Officer and Secretary (principal
Antonio L. DeLise financial and accounting officer)
</TABLE>
II-5
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT PAGE NO.
- ----------- ------- --------
<S> <C> <C>
4.1 Amended and Restated Articles of Incorporation, amended and
restated through November 2, 1998, 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 Certificate of Designation, Preferences and Rights of Class
A Preferred Stock, First Series. Incorporated by reference
from PubliCARD's Registration Statement on Form 8-A, dated
September 26, 1988..........................................
4.4 Form of option to purchase common stock of PubliCARD issued
in connection with the Stock Purchase Agreement, dated April
12, 1985, among PubliCARD, Balfour Securities Corporation
and the Purchasers. Incorporated by reference from
PubliCARD's Annual Report on Form 10-K for the year ended
December 31, 1994, dated March 31, 1995.....................
4.5 Form of Warrant Agreement, dated 1986, between PubliCARD and
J. Henry Schroder Bank & Trust Company, as Warrant Agent.
Incorporated by reference from PubliCARD's Registration
Statement on Form S-1, dated October 8, 1986................
4.6 Form of Amendment No. 1 to Warrant Agreement, dated August
13, 1997, between PubliCARD and Publicker Industries Inc.,
successor to J. Henry Schroder Bank & Trust Company, as
Warrant Agent. Incorporated by reference from PubliCARD's
Current Report on Form 8-K, filed on August 15, 1997........
4.7 Form of Warrant Agreement, dated 1986, between PubliCARD and
Drexel Burnham Lambert Incorporated. Incorporated by
reference from PubliCARD's Registration Statement on Form
S-1, dated October 8, 1986..................................
4.8 Form of Amendment No. 1 to Warrant Agreement, dated August
13, 1997, between PubliCARD and Harry I. Freund and Jay S.
Goldsmith. Incorporated by reference from PubliCARD's
Current Report on Form 8-K, filed on August 15, 1997........
4.9 Amended and Restated Rights Agreement, dated as of August 7,
1998, between PubliCARD and Continental Stock Transfer &
Trust Company, as Rights Agent. Incorporated by reference
from PubliCARD's Current Report on Form 8-K, filed on
September 17, 1998..........................................
5.1 Opinion of Schnader, Harrison, Segal & Lewis with respect to
legality of securities being registered.....................
10.1 Agreements, dated as of August 1987, between PubliCARD Harry
I. Freund, Jay S. Goldsmith and David L. Herman concerning a
change of control of PubliCARD. Incorporated by reference
from PubliCARD's Form 8 Amendment to PubliCARD's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1987, filed on December 18, 1987............................
10.2 PubliCARD 1991 Stock Option Plan. Incorporated by reference
from PubliCARD's Form 8 Amendment to PubliCARD's Annual
Report on Form 10-K for the year ended December 31, 1991,
dated August 14, 1992.......................................
10.3 PubliCARD 1993 Long Term Incentive Plan. Incorporated by
reference from PubliCARD's Annual Report on Form 10-K for
the year ended December 31, 1993, dated March 29, 1994......
10.4 PubliCARD Non-employee Director Stock Option Plan.
Incorporated by reference from PubliCARD's Annual Report on
Form 10-K for the year ended December 31, 1993, dated March
29, 1994....................................................
10.5 Asset Purchase Agreement, dated August 16, 1996, among
Masterview Window Company, Inc., PubliCARD, Hanten
Acquisition Co. and Masterview Acquisition Corp.
Incorporated by reference from PubliCARD's Quarterly Report
on Form 10-Q for the quarter ended September 30, 1996, dated
November 14, 1996...........................................
10.6 Agreement and Plan of Merger, dated as of October 30, 1998,
among PubliCARD, Publicker Smart Card Acquisition Co.,
Tritheim Technologies, Inc. and the Security Holders of
Tritheim Technologies, Inc. Incorporated by reference from
PubliCARD's Current Report on Form 8-K, filed on December 7,
1998........................................................
</TABLE>
<PAGE> 1
EXHIBIT 5.1
SCHNADER HARRISON
SEGAL & LEWIS LLP
ATTORNEYS AT LAW
SUITE 3600 * 1600 MARKET STREET * PHILADELPHIA, PENNSYLVANIA 19103-7286
215-751-2000 * FAX: 215-751-2205
http://www.shsl.com
March 31, 2000
PubliCARD, Inc.
620 Fifth Avenue
7th Floor
New York, NY 10020
Dear Ladies and Gentlemen:
We have acted as Pennsylvania counsel to PubliCARD, Inc., a
Pennsylvania corporation (the "Company"), in connection with the preparation of
the Registration Statement on Form S-3 (the "Registration Statement")
registering 118,369 shares (the "Shares") of the Company's common stock, par
value $.10 per share (the "Common Stock"), which shares are being offered or
sold by two selling shareholders.
In rendering the opinion set forth below, we have reviewed the
Company's Articles of Incorporation, as amended, the Company's Bylaws, as
amended, resolutions adopted by its Board of Directors, and such other documents
as we have deemed appropriate. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original of all documents submitted to
us as copies thereof.
Based upon the foregoing, we are of the opinion that the Shares are
duly authorized, validly issued, fully paid and nonassessable.
Our opinion set forth above is limited to the laws of the Commonwealth
of Pennsylvania, and we express no opinions as to any other laws, statutes,
rules or regulations.
We hereby consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal Matters." In giving such opinion, we do not thereby admit that we are
acting within the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ SCHNADER HARRISON SEGAL & LEWIS LLP
PENNSYLVANIA * NEW YORK * NEW JERSEY * WASHINGTON, DC * GEORGIA * CALIFORNIA
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the reference to our
Firm under the caption "Experts" and to the use of our report on the
consolidated financial statements of PubliCARD, Inc. dated March 20, 2000,
incorporated by reference in the Registration Statement on Form S-3 and the
related Prospectus of PubliCARD, Inc. dated March 31, 2000.
/s/ ARTHUR ANDERSEN LLP
Stamford, Connecticut
March 30, 2000
