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As filed with the Securities and Exchange Commission on March 28, 1997
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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VERIFONE, INC
(Exact name of registrant as specified in its charter)
Delaware 99-0206064
(State of Incorporation) (I.R.S. Employer Identification No.)
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THREE LAGOON DRIVE, SUITE 400
REDWOOD CITY, CALIFORNIA 94065
(415) 591-6500
(Address and telephone number of principal executive offices)
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1997 RESTRICTED PHANTOM STOCK PLAN
(Full title of the plans)
HATIM A. TYABJI
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
VERIFONE, INC.
THREE LAGOON DRIVE, SUITE 400
REDWOOD CITY, CALIFORNIA 94065
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies to:
WILLIAM G. BARMEIER, ESQ. MICHAEL R. JACOBSON, ESQ.
SENIOR VICE PRESIDENT, COOLEY GODWARD LLP
GENERAL COUNSEL AND SECRETARY 3000 EL CAMINO REAL
VERIFONE, INC. PALO ALTO, CALIFORNIA 94306
THREE LAGOON DRIVE, SUITE 400 (415) 843-5000
REDWOOD CITY, CALIFORNIA 94065 FAX (415) 857-0663
(415) 591-6500
FAX (415) 598-4516
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED PER SHARE (1) OFFERING PRICE REGISTRATION
(1) FEE
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Restricted
Stock Grants
and Common
Stock (par 12,500 $34.32 $429,000 $130.00
value $0.01)
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The price per share and
aggregate offering price are based upon the average of the high and low
prices of Registrant's Common Stock on March 25, 1997 as reported on the
New York Stock Exchange.
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ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by VeriFone, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual reports, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company 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 to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
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
Under Section 145 of the Delaware General Corporation Law, VeriFone has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act"). VeriFone's Bylaws provide that
VeriFone will indemnify its directors and may indemnify its officers to the
fullest extent permitted by law. Under its Bylaws, indemnified parties are
entitled to indemnification for negligence, gross negligence and otherwise to
the fullest extent permitted by law. The Bylaws also permit VeriFone to advance
litigation expenses in the case of stockholder derivative actions or other
actions, against an undertaking by the indemnified party to repay such advances
if it is ultimately determined that the indemnified party is not entitled to
indemnification.
In addition, VeriFone's Restated Certificate of Incorporation provides
that, pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of the directors' fiduciary duty of care to VeriFone and its
stockholders. This provision in the Certificate of Incorporation does not
eliminate the duty of care, and in appropriate circumstances equitable remedies,
such as injunctive or other forms of non-monetary relief, will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to VeriFone, for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violation of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
1.
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VeriFone has entered into indemnity agreements with each of its directors
and executive officers. Such indemnity agreements contain provisions which are
in some respects broader than the specific indemnification provisions contained
in Delaware law.
VeriFone maintains a policy providing directors and officers liability
insurance which insures directors and officers of VeriFone in certain
circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
2.
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ITEM 8. EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 1997 Restricted Phantom Stock Plan
ITEM 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 the Registration Statement shall be deemed to be a
new registration
3.
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statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
3. 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.
4.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Redwood City, State of California, on March 28,
1997.
VERIFONE, INC.
By: /s/ Joseph M. Zaelit
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Joseph M. Zaelit
Senior Vice President, Finance and
Administration and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hatim A. Tyabji and Joseph M. Zaelit, and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
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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.
SIGNATURE TITLE DATE
/s/ Hatim A. Tyabji Director, Chairman of the March 15, 1997
- ------------------------------- Board, President and
Hatim A. Tyabji Chief Executive Officer
(principal executive officer)
/s/ Joseph M. Zaelit Senior Vice President, March 15, 1997
- ------------------------------- Finance and Administration,
Joseph M. Zaelit and Chief Financial Officer
(principal financial officer)
/s/ Eldon M. Bullington Vice President and March 15, 1997
- ------------------------------- Corporate Controller
Eldon M. Bullington (principal accounting officer)
/s/ H. H. Haight IV Director March 15, 1997
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H. H. Haight IV
/s/ J. Robert Harcharik Director March 15, 1997
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J. Robert Harcharik
/s/ Thomas E. Peterson Director March 15, 1997
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Thomas E. Peterson
/s/ John R. C. Porter Director March 15, 1997
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John R. C. Porter
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SIGNATURE TITLE DATE
- ------------------------------- Director March __, 1997
Clinton V. Silver
/s/ A. Michael Spence Director March 15, 1997
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A. Michael Spence
/s/ R. Elton White Director March 15, 1997
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R. Elton White
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
NUMBER
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 1997 Restricted Phantom Stock Plan
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Exhibit 5.1
March 28, 1997
[Letterhead]
VERIFONE, INC.
THREE LAGOON DRIVE, SUITE 400
REDWOOD CITY, CALIFORNIA 94065
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by VeriFone, Inc. (the "Company") of a Registration Statement on
Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 12,500 shares of the Company's Common
Stock, $.01 par value, (the "Shares") pursuant to its 1997 Restricted Phantom
Stock Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and By-laws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued in accordance with the Plan, the related
resolutions of the Board of Directors, the Registration Statement and related
Prospectus, will be validly issued, fully paid, and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Michael R. Jacobson
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Michael R. Jacobson
21274059
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the 1997 Restricted Phantom Stock Plan of VeriFone,
Inc. of our reports dated January 17, 1997, with respect to the consolidated
financial statements of VeriFone, Inc. incorporated by reference in its
Annual Report (Form 10-K) for the year ended December 31, 1996 and the
related financial statement schedule included therein, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
March 25, 1997
<PAGE>
Exhibit 99.1
VERIFONE, INC.
1997 RESTRICTED PHANTOM STOCK PLAN
1. PURPOSE.
To attract and maintain key employees who are and will be providing
services to the Company, the Company desires to establish a compensatory plan
for grants of restricted phantom stock in which participants will have the
opportunity to receive cash incentive compensation based on the value of the
Company's common stock.
2. DEFINITIONS.
The following words and phrases as used herein shall have the following
meanings, unless a different meaning is plainly required by the context:
(A) "CHANGE IN CONTROL" means: (1) a dissolution or liquidation of the
Company; (2) a merger or consolidation in which the Company is not the
surviving corporation; (3) a reverse merger in which the Company is the
surviving corporation but the shares of the Company's common stock outstanding
immediately preceding the merger are converted by virtue of the merger into
other property, whether in the form of securities, cash or otherwise; or (4)
any other capital reorganization in which more than fifty percent (50%) of
the shares of the Company entitled to vote are exchanged.
(B) "COMPANY" means VeriFone, Inc.
(C) "COMPENSATION COMMITTEE" means the Compensation Committee of the
Board of Directors of the Company.
(D) "COMMON STOCK" means the Company's shares of common stock.
(E) "EMPLOYEE" means any person employed by the Company and its
subsidiaries.
(F) "PARTICIPANT" means an Employee who has received a Restricted
Phantom Grant.
(G) "PLAN" means this 1997 Restricted Phantom Stock Plan.
(H) "RESTRICTED PHANTOM STOCK AGREEMENT" means an agreement evidencing
the terms of a Restricted Phantom Stock Grant under the Plan.
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(I) "RESTRICTED PHANTOM STOCK GRANT" means a grant of Shares of
Restricted Phantom Stock under the Plan.
(J) "SHARE OF RESTRICTED PHANTOM STOCK" means a single unit of value
based on the value of a share of Common Stock.
3. ADMINISTRATION.
The Plan shall be administered by the Compensation Committee. Subject
to the provisions of the Plan, the Compensation Committee shall have
exclusive power to select the Employees to receive Restricted Phantom Stock
Grants, to determine the number of Shares of Restricted Phantom Stock subject
to each Restricted Phantom Stock Grant, the time or times of Restricted
Phantom Stock Grants, and the vesting and redemption conditions of Restricted
Phantom Stock Grants. In addition, the Compensation Committee shall have
authority to interpret the Plan, establish and revise rules and regulations
relating to the Plan and make any other determination in connection with the
administration of the Plan. All decisions and determinations by the
Compensation Committee and any action taken by it in respect of the Plan and
within the powers granted to it herein shall be conclusive and binding on all
persons', including Participants', interests.
4. ELIGIBILITY AND AWARD OF RESTRICTED PHANTOM STOCK GRANTS.
All Employees shall be eligible for Restricted Phantom Stock Grants.
Restricted Phantom Stock Grants shall be credited to a bookkeeping account to
be maintained for the Employee receiving the grant. An Employee may receive
more than one Restricted Phantom Stock Grant under the Plan.
5. VESTING OF RESTRICTED PHANTOM STOCK GRANTS.
the Compensation Committee shall determine the manner in which Shares of
Restricted Phantom Stock subject to each Restricted Phantom Stock Grant shall
become vested (i.e., become redeemable). The vesting provisions of
individual Restricted Phantom Stock Grants may vary. The Compensation
Committee may determine to accelerate the vesting date(s) for an outstanding
Restricted Phantom Stock Grant.
6. REDEMPTION OF RESTRICTED PHANTOM STOCK GRANTS.
Awards under the Plan shall be in the form of Restricted Phantom Stock
Grants, which will entitle the holder to receive from the Company, upon
redemption, the number of shares of Common Stock equal to the number of
Shares of Restricted Phantom Stock redeemed as soon as reasonable practicable
following the redemption date.
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7. NONASSIGNABILITY OF RESTRICTED PHANTOM STOCK GRANTS.
No Restricted Phantom Stock Grant under the Plan shall be assignable or
transferable in any manner by a Participant. During the lifetime of a
Participant, Restricted Phantom Stock Grants held by such Participant shall
be redeemed only by such Participant or his or her guardian or legal
representative. To the extent provided in a Restricted Phantom Stock
Agreement, a Participant may designate a beneficiary who may redeem the
Participant's Restricted Phantom Stock Grants following the Participant's
death.
8. ADJUSTMENTS UPON CHANGES IN STOCK.
(A) If any change is made in the capital structure of the Company in a
transaction not involving the receipt of consideration by the Company
(through merger, consolidation, reorganization, recapitalization, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or otherwise), shares of the Company's common stock and Shares of
Restricted Phantom Stock subject to the Plan and outstanding Restricted
Phantom Stock Grants will be appropriately adjusted in class, number and
value. The issuance of equity securities of the Company in order to raise
additional financial capital shall not be treated as a change which shall
trigger the adjustments provided for under this subsection 8(A).
(B) In the event of a Change in Control, (i) any surviving corporation
shall assume any Restricted Phantom Stock Grants outstanding under the Plan
or shall substitute similar rights for those outstanding under the Plan, or
(ii) such Restricted Phantom Stock Grants shall continue in full force and
effect. In the event any surviving corporation refuses to assume such
Restricted Phantom Stock Grants, or to substitute similar rights for those
outstanding under the Plan, then such Restricted Phantom Stock Grants shall
be immediately redeemed prior to such event.
9. MISCELLANEOUS PROVISIONS.
(A) No Employee or other person shall have any claim or right to
Restricted Phantom Stock Grants under the Plan. The Plan shall not confer
upon any Employee or Participant any right with respect to continuation of
employment by the Company, nor shall it interfere in any way with his or her
right or the Company's right to terminate his or her employment at any time.
(B) The Compensation Committee may cancel Restricted Phantom Stock
Grants with the written consent of the Participant who holds such Restricted
Phantom Stock Grants, and, upon any such cancellation, all rights of
Participant in respect of such canceled Restricted Phantom Stock Grants shall
terminate and such canceled Restricted Phantom Stock Grants shall be
available for further grant under the Plan. In addition, the Compensation
Committee may modify, amend or terminate the Plan at any time, and amend the
terms of one or more Restricted Phantom Stock Grants at any time, except that
no such
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action shall impair any rights or obligations theretofore granted under the
Plan without the holders' written consent.
(C) The Plan shall not be funded, the Company shall not be required to
segregate any funds representing the value of Restricted Phantom Stock
Grants, and nothing in the Plan shall be construed as providing for such
segregation. A Participant's rights to amounts received upon the redemption
of Restricted Phantom Stock Grants under the Plan shall be those of an
unsecured general creditor of the Company. The liability for payment upon the
redemption of a Restricted Phantom Stock Grant is a liability of the Company
alone and is not a liability of any officer, director, shareholder, or
affiliate of the Company.
(D) No Participant or successor in interest shall be deemed to be a
shareholder of the Company by virtue of having received a Restricted Phantom
Stock Grant prior to the redemption of such Restricted Phantom Stock Grant.
(E) The Company may require any person awarded a Restricted Phantom
Stock Grant, or any person to whom a Restricted Phantom Stock Grant is
transferred by will or the laws of descent and distribution, as a condition
to receipt of such Restricted Phantom Stock Grant or the receipt of shares of
Common Stock upon redemption, (i) to give written assurances satisfactory to
the Company as to the person's knowledge and experience in financial and
business matters; and (ii) to give written assurances satisfactory to the
Company stating that such person is accepting the Common Stock upon
redemption for such person's own account and not with any present intention
of selling or otherwise distributing the Common Stock. These requirements,
and any assurances given pursuant to such requirements, shall be inoperative
if (i) the issuance of shares of Common Stock upon redemption of Restricted
Phantom Stock Awards has been registered under a then currently effective
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), or (ii) as to any particular requirement, a determination
is made by counsel for the Company that such requirement need not be met in
the circumstances under the then applicable securities laws. The Company may
require any person holding a Restricted Phantom Stock Grant to provide such
other representations, written assurances of information which the Company
shall determine is necessary, desirable or appropriate to comply with
applicable securities laws. The Company may, upon advice of counsel to the
Company, place legends on stock certificates issued under the Plan as such
counsel deems necessary or appropriate in order to comply with applicable
securities laws, including, but not limited to, legends restricting the
transfer of the Common Stock.
10. EFFECTIVE DATE.
The Plan shall be effective on the date approved by the Compensation
Committee.
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