As filed with the Securities and Exchange Commission on September 22, 1994.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8 AND S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SAFECARD SERVICES, INCORPORATED
------------------------------------------------------
(Exact name of Registrant as specified in its Charter)
Delaware 13-2650534
- ------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3001 E. Pershing Boulevard
Cheyenne, Wyoming 82001
----------------------------------------
(Address of Principal Executive Offices)
SAFECARD SERVICES, INCORPORATED
1994 LONG TERM STOCK-BASED INCENTIVE PLAN
-----------------------------------------
(Full title of Plans)
Marc F. Joseph
Senior Vice President-Law and Public Affairs
202 ATP Tour Boulevard
Ponte Vedra Beach, Florida 32082
(904) 273-3000
------------------------------------------------------
(Name, address, telephone number of agent for service)
Approximate date of commencement of proposed sale to the public: from
time to time after the effective date of this Registration Statement.
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]
CALCULATION OF REGISTRATION FEE
Proposed
Amount Maximum Amount of
Title of Shares to be Aggregate Price Registration
to be Registered Registered Per Unit Fee
- ---------------- ---------- --------------- ------------
Common Stock 2,314,000 $15.55 $12,407.83
86,000 $16.375 $ 485.61
(1) Estimated solely for the purpose of determining the
registration fee. The common stock of SafeCard Services,
Incorporated ("SafeCard" or the "Company"), par value $.01 per
share (the "Common Stock"), is listed on the New York Stock
Exchange ("NYSE"). $15.55 represents the weighted average
option price for shares of Common Stock covered by options
outstanding on September 8, 1994 and with respect to
restricted stock and options not presently outstanding, $16.375
represents the average of high and low prices of the
Registrant's Common Stock as quoted on NYSE on September 16, 1994.
(2) This amount is calculated based on the aggregate number of shares
being registered hereunder for issuance pursuant to the exercise of
options and other rights under the SafeCard Services, Incorporated
1994 Long Term Stock-Based Incentive Plan (the "1994 Plan"). This
includes 2,400,000 shares of Common Stock granted as restricted stock
or issuable upon the exercise of options or stock appreciation rights
under the 1994 Plan. This Registration Statement also includes such
indeterminate number of additional shares of Common Stock of the
Company as may be issuable as a result of stock splits, stock
dividends or similar transactions, as described in the 1994 Plan. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also
covers an indeterminate amount ofinterests in the 1994 Plan to be
offered or sold pursuant to the 1994 Plan.
EXPLANATORY NOTE: This Registration Statement contains two parts. The
first part contains a prospectus pursuant to Form S-3 (in accordance with
Section C of the General Instructions to Form S-8) which covers reoffers
and resales, by affiliates, or persons who may be deemed to be affiliates,
of the Registrant, of shares of Common Stock of SafeCard Services,
Incorporated. The second part contains Information Required in the
Registration Statement pursuant to Part II of Form S-8 and Information Not
Required in the Prospectus pursuant to Part II of Form S-3. In addition,
the Form S-8 registers shares of Common Stock of SafeCard Services, Inc.,
issued as restricted stock or upon exercise of options or stock
appreciation rights granted pursuant to the Registrant's 1994 Plan.
Pursuant to the Note to Part I of Form S-8, the Plan Information specified
by Part I is not being filed with the Securities and Exchange Commission.
PROSPECTUS
----------
SAFECARD SERVICES, INCORPORATED
1,707,000 Shares of Common Stock
(Par Value $.01 Per Share)
This Prospectus may be used by certain persons (the "Covered
Stockholders") who may be deemed to be affiliates of SafeCard Services,
Incorporated (the "Company" or "SafeCard"), a Delaware corporation, to
sell shares of common stock, par value $.01 per share, of SafeCard (the
"Common Stock"), which may be acquired by such persons pursuant to the
lapse of restrictions on restricted stock or the exercise of all or any
portion of certain stock options granted to such persons by SafeCard. All
proceeds from any sales of such shares of Common Stock will inure to the
benefit of the Covered Stockholders. SafeCard will receive none of the
proceeds from the sale of shares which may be offered hereby but may
receive funds upon the exercise of the options pursuant to which the
Covered Stockholders will acquire certain of the shares covered by this
Prospectus, which funds, if any, will be used for working capital. All
expenses of registration incurred in connection herewith are being borne by
SafeCard, but all selling and other expenses incurred by individual Covered
Stockholders will be borne by such Covered Stockholders.
The Covered Stockholders have not advised SafeCard of any specific
plans for the distribution of the shares of Common Stock covered by this
Prospectus, but, if and when shares are sold, it is anticipated that the
shares will be sold from time to time primarily in transactions (which may
include block transactions) on the New York Stock Exchange at the market
price then prevailing, although sales may also be made in negotiated
transactions or otherwise. The shares of Common Stock to which this
Prospectus relates may be authorized for listing on the New York Stock
Exchange. See "The Plan of Distribution." The Common Stock of SafeCard is
listed and traded on the New York Stock Exchange under the symbol SSI.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
No person is authorized to give any information or to make any
representation not contained in this Prospectus and, if given or made, such
information or representation should not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to purchase, any of the securities offered by this
Prospectus in any jurisdiction to or from any person to whom or from whom
it is unlawful to make such offer. Neither the delivery of this Prospectus
nor any distribution of securities made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or that information in this
Prospectus or in the documents incorporated herein by reference is correct
as of any time subsequent to the date hereof or the dates thereof.
TABLE OF CONTENTS
Page
Available Information .......................................... 5
Incorporation of Certain Documents by Reference ................ 5
The Company .................................................... 6
Covered Stockholders ........................................... 6
Plan of Distribution ........................................... 8
Description of Common Stock .................................... 8
Indemnification ................................................ 10
Interests of Counsel ........................................... 10
AVAILABLE INFORMATION
The Company is subject to the information requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). These reports, proxy statements
and other information can be inspected and copied at the Commission's
public reference room located at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the public reference facilities in the
Commission's regional offices located at: Northwestern Atrium Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661, and 75 Park
Place, 14th Floor, New York, New York 10007. Copies of such materials can
be obtained at prescribed rates by writing to the Securities and Exchange
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. In addition, reports, proxy statements and other information
concerning the Company may be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
INCORPORATION OF DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference into this Registration
Statement the following documents filed with the Securities and Exchange
Commission (the "Commission"):
(a) SafeCard's Annual Report on Form 10-K for the fiscal year
ended October 31, 1993;
(b) SafeCard's Forms 8-K dated December 6, 1993, January 14,
1994, April 18, 1994, July 13, 1994 and July 25, 1994;
(c) SafeCard's quarterly report on Form 10-Q for its fiscal
quarter ended January 31, 1994;
(d) SafeCard's quarterly report on Form 10-Q for its fiscal
quarter ended April 30, 1994;
(e) SafeCard's quarterly report on Form 10-Q for its fiscal
quarter ended July 31, 1994; and
(f) SafeCard's Proxy Statement dated February 4, 1994.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act), prior to the filing of a post-
effective amendment which indicates that all securities 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 hereof from the
respective dates of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document
which also is incorporated or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
With respect to the unaudited consolidated financial information of
SafeCard Services, Incorporated for the fiscal quarters ended January 31,
1994, April 30, 1994 and July 31, 1994, incorporated by reference in this
Prospectus, Price Waterhouse LLP reported that they have applied limited
procedures in accordance with professional standards for a review of such
information. However, their separate reports dated February 25, 1994, June
13, 1994 and August 18, 1994 incorporated by reference herein, state that
they did not audit and they do not express an opinion on that unaudited
consolidated financial information. Price Waterhouse LLP has not carried
out any significant or additional audit tests beyond those which would have
been necessary if their reports had not been included. Accordingly, the
degree of reliance on their reports on such information should be
restricted in light of the limited nature of the review procedures applied.
Price Waterhouse LLP is not subject to the liability provisions of section
11 of the Securities Act of 1933 for their reports on the unaudited
consolidated financial information because those reports are not a "report"
or a "part" of the registration statement prepared or certified by Price
Waterhouse LLP within the meaning of sections 7 and 11 of the Act.
THE COMPANY
SafeCard's principal executive office is located at 3001 E. Pershing
Blvd., Cheyenne, Wyoming 82001 and its telephone number is (307) 771-2700.
COVERED SHAREHOLDERS
The names of the Covered Stockholders and the positions, offices or
other material relationships which they have had with SafeCard since
September 1991 are as follows:
Current Position Former Position
Covered Shareholder(s) with SafeCard with SafeCard
- ---------------------- ---------------- ---------------
Paul G. Kahn Director, Chairman --
and Chief Executive
Officer
Thomas F. Petway, III Director --
Francis J. Marino Vice Chairman --
G. Thomas Frankland Vice Chairman and --
Chief Financial Officer
The 1,707,000 shares of Common Stock covered by this Prospectus are
shares which are subject to certain restrictions and to options granted by
SafeCard to the Covered Stockholders since December 1993.
The following table sets forth: (i) the name of the Covered
Stockholders who may sell Common Stock pursuant to this Prospectus, (ii)
the number of shares of Common Stock owned (or subject to option) by each
Covered Shareholder as of September 16, 1994, (iii) the number of shares of
Common Stock which may be offered and are being registered for the account
of each Covered Shareholder by this Prospectus (all of which will be
acquired by the Covered Stockholders pursuant to the lapse of restrictions
on shares of restricted stock or pursuant to the exercise of options) and
(iv) the amount and (if one percent or more) the percentage of the class
to be owned by each Covered Shareholder if such Covered Shareholder were to
sell all of the shares of Common Stock covered by this Prospectus.
Percent of
Total
Outstanding
Number of Shares
Shares Owned Owned if
(or Subject All Shares
to Option) Owned if All Registered
Hereunder Number of Shares Hereunder
Prior to Shares to Registered Were sold
this be Hereunder (if 1% or
Name Registration Registered Were Sold(1) More)(2)
- ---- ------------ ---------- ------------ ---------
Paul G. Kahn 1,005,100 1,005,000(3) 100 ----
Thomas F. Petway,III 114,400 100,000(3) 14,400 ----
G. Thomas Frankland 301,000 301,000(3) 0 ----
Francis J. Marino 301,000 301,000(3) 0 ----
____________________
(1) Assuming that all shares individually owned and covered by this
Prospectus are sold and that no additional shares are purchased or sold by
any Covered Stockholders.
(2) Based upon 28,920,649 shares of Common Stock outstanding as of
July 31, 1994, plus, in the case of each Covered Shareholder, the number of
shares subject to option such individual has the right to purchase and
assuming that all shares of Common Stock individually owned and covered by
this Prospectus are sold and that no additional shares are purchased or
sold by such Covered Stockholders.
(3) Includes shares of restricted stock and shares subject to options.
PLAN OF DISTRIBUTION
Any shares of Common Stock sold pursuant to this Prospectus will be
sold by the Covered Stockholders for their own account, and they will
receive all proceeds from any such sales. The Company will receive none of
the proceeds from the sale of shares which may be offered hereby but may
receive funds upon the exercise of the options pursuant to which the
Covered Stockholders will acquire the shares covered by this Prospectus,
which funds, if any, will be used for working capital. The Covered
Stockholders have not advised the Company of any specific plans for the
distribution of the shares of Common Stock covered by this Prospectus, but,
if and when shares are sold, it is anticipated that the shares will be sold
from time to time primarily in transactions (which may include block
transactions) on the New York Stock Exchange at the market price then
prevailing, although sales may also be made in negotiated transactions or
otherwise. If shares of Common Stock are sold through brokers, the Covered
Stockholders may pay customary brokerage commissions and charges. The
Covered Stockholders may effect such transactions by selling shares to or
through broker-dealers, and such broker-dealers may receive compensation in
the form of discounts, concessions or commissions from the Covered
Stockholders and/or the purchasers of shares for whom such broker-dealers
may act as agent or to whom they may sell as principal, or both (which
compensation as to a particular broker-dealer might be in excess of
customary commissions). The Covered Stockholders and any broker-dealers
that act in connection with the sale of the shares hereunder might be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, and any commissions received by them and any profit
on the resale of shares as principal might be deemed to be underwriting
discounts and commissions under such Act. Shares of Common Stock covered
by this Prospectus also may be sold pursuant to Rule 144 under the
Securities Act of 1933 rather than pursuant to this Prospectus. The
Covered Stockholders have been advised that they are subject to the
applicable provisions of the Securities Exchange Act of 1934, including
without limitation Rules 10b-5, 10b-6 and 10b-7 thereunder.
The shares of Common Stock to which this Prospectus relates may be
authorized for listing on the New York Stock Exchange.
DESCRIPTION OF COMMON STOCK
General
SafeCard's Certificate of Incorporation authorizes the issuance of
35,000,000 shares of Common Stock, par value $.01 per share. SafeCard
Common Stock is listed and traded on the New York Stock Exchange under the
symbol SSI.
Certain characteristics of the Common Stock are described below.
SafeCard may pay dividends on the Common Stock when, as and if
declared by its Board of Directors out of funds legally available therefor,
subject to certain restrictions. The holders of Common Stock will be
entitled to receive and share equally in such dividends as may be declared
by the Board of Directors.
SafeCard's Board of Directors declared a cash dividend of $.05 per
share payable on September 30, 1994 to stockholders of record on September
21, 1994. The Board of Directors has adopted a policy of declaring cash
dividends of $.05 per share on a quarterly basis. This policy is subject to
change at the discretion of the Board of Directors.
Shares of Common Stock are non-assessable upon payment therefor. In
the event of a liquidation, dissolution or winding up of SafeCard, each
holder of Common Stock would be entitled to receive, after payment of all
debts and liabilities of SafeCard, a pro-rata portion of all assets of
SafeCard available for distribution to holders of Common Stock.
Holders of Common Stock do not have any preemptive rights.
Voting and Election of Directors
Each holder of Common Stock is entitled to one vote for each share
held on all matters voted upon by stockholders. SafeCard's Certificate of
Incorporation does not give stockholders the right to vote for directors
cumulatively. The directors are divided into three classes serving three
year terms, with each class as equal in number as possible and only one
class elected each year.
Certain Change in Control Provisions
The Certificate of Incorporation and By-Laws of SafeCard contain
certain provisions which may have the effect of delaying, deferring or
preventing a change in control of SafeCard in the absence of the approval
of SafeCard's Board of Directors or otherwise. These provisions include
the following: SafeCard's Board of Directors shall be classified into three
classes of approximately equal number having staggered terms of three years
each. Special meetings of stockholders may be called only by the Chairman
of the Board or by upon the written request of a majority of the Board of
Directors. Such requests shall state the purposes of the proposed meeting.
Business transacted at the special meeting shall be limited to the purposes
stated in the request. Stockholder proposals and nominations for the
election of directors at any meeting of stockholders must be submitted in
writing to the Secretary of SafeCard in accordance with prescribed
procedures and must be received within certain prescribed time periods.
For example, notice of a stockholder proposal to be brought before the
annual meeting must be delivered to, or mailed and received at, SafeCard's
principal executive offices not less than sixty days nor more than ninety
days prior to the scheduled annual meeting. Such notice to the Secretary
shall contain (i) a brief description of the proposal desired to be brought
before the annual meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and address of the stockholders proposing
such business and any other stockholders known by such stockholder to be
supporting such proposal, (iii) the class and number of shares of SafeCard
stock beneficially owned by the stockholder on the date of such stockholder
notice and by any other stockholders known by such stockholder to be
supporting such proposal on the date of such stockholder notice, and (iv)
any financial interest of the stockholder in such proposal.
In addition, SafeCard's By-Laws provide that they may only be amended
or repealed by the affirmative vote of the holders of two-thirds of the
stock issued and outstanding and entitled to vote or by the affirmative
vote of a majority of the Board of Directors.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is American
Stock Transfer & Trust Company of New York.
INDEMNIFICATION
Section 145 of the Delaware General Corporation Law provides that a
corporation shall have the power, and in some cases is required, to
indemnify an officer, director, employee or agent, who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, by reason of the fact that he or she is or was
or has agreed to become a director, officer, employee or agent of SafeCard,
or is or was serving or has agreed to serve at the request of SafeCard as a
director, officer, employee or agent of another corporation, partnership,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, or by reason of any action alleged to
have been taken or omitted in such capacity, against expenses, judgments,
fines and amounts paid in settlements. Paul G. Kahn, Thomas F. Petway,
III, G. Thomas Frankland and Francis J. Marino each have indemnification
agreements with SafeCard pursuant to SafeCard's Certificate of
Incorporation and By-Laws, which require indemnification of SafeCard's
directors and officers to the extent such indemnification is permitted
under the Delaware General Corporation Law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling SafeCard pursuant to the foregoing provisions, SafeCard has
been informed that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3 (Form S-8). Incorporation of Documents by Reference
See "Incorporation of Certain Documents by Reference" included in the
Prospectus.
Item 4 (Form S-8). Description of Securities
See "Description of Common Stock" included in the Prospectus.
Item 5 (Form S-8). Interests of Named Experts and Counsel
Not Applicable.
Item 14 (Form S-3). Other Expenses of Issuance and Distribution
The following are the estimated expenses of issuance and distribution
of the shares registered hereunder on Form S-3.
Registration Fee $ 12,893.44
Legal Fees and Expenses $ 1,965.00
Miscellaneous $ 1,000.00
----------
Total $ 15,858.44
All of the above expenses have been or will be paid by the Registrant.
Any further expenses incurred in connection with the sale of such shares by
the Covered Stockholders will be paid by such Covered Stockholders. It is
impracticable to estimate such expenses.
Item 6 (Form S-8) and
Item 15 (Form S-3). Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law generally provides
the Company broad powers to indemnify its directors, officers, employees
and agents.
Section 145(a) provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in
the right of a corporation) by reason of the fact that such person is or
was a director, officer, employee or agent of the corporation against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action,
suit or proceeding if such person acted in good faith and in a manner that
he or she reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding,
if he or she had no reasonable cause to believe his or her conduct was
unlawful.
Section 145(b) provides that a corporation may indemnify any person
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that
he or she is or was a director, officer, employee or agent of the
corporation against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if such person acted in good faith and in
a manner that he or she reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
expenses which the court deems proper.
Section 145(c) provides that, to the extent that a director, officer,
employee or agent of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of Section 145, or in defense of any claim, issue
or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her
in connection therewith.
Section 145(d) provides that any indemnification under subsections
145(a) and (b) (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the indemnitee has
met the applicable standard of conduct set forth in subsections (a) and (b)
of Section 145. Such determination shall be made (1) by the board of
directors by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, or (ii) if such a quorum is
not obtainable, or, even if obtainable a quorum of disinterested directors
so directs, by independent legal counsel in a written opinion, or (iii) by
the stockholders.
Section 145(e) provides that expenses (including attorneys' fees)
incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by
the corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount if it shall ultimately be determined that
he or she is not entitled to be indemnified by the corporation as
authorized in Section 145.
Section 145(f) provides that the indemnification and
advancement of expenses provided by, or granted pursuant to, the other
subsections of Section 145 shall not be deemed exclusive of any other
rights to which any director or officer seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
his or her official capacity and as to action in another capacity while
holding office.
Section 145(j) provides that the indemnification and advancement of
expenses provided by, or granted pursuant to, Section 145 shall, unless
otherwise provided when authorized or ratified, continue as to a person who
has ceased to be a director or officer and shall inure to the benefit of
the heirs, executors and administrators of such person.
Article EIGHTH of the Company's Certificate of Incorporation
provides that the Company shall to the full extent permitted by Section 145
of the Delaware General Corporation Law, indemnify all persons whom it may
indemnify pursuant thereto.
Article TWELFTH of the Company's Certificate of Incorporation
consistent with Section 102(b)(7) of the Delaware General Corporation Law,
provides that a director of the Company shall not be personally liable to
the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Company or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) for any improper payment of dividends
or any unlawful stock purchase or redemption as provided under Section 174
of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit. Article TWELFTH
further provides no amendment or repeal of such article or adoption of any
provision of the Certificate of Incorporation inconsistent with Article
TWELFTH shall prejudice the exculpatory effect of Article TWELFTH with
respect to any act or omission occurring prior to the effective date of
such amendment, repeal or inconsistent provision.
Section 10 of Article V of the Company's By-Laws provides that
each person who is or was a director or officer of the Company or any of
its subsidiaries and each person who serves or may have served at the
request of the Company as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise (and the heirs,
executors, administrators and estates of any such persons), shall be
indemnified by the Company in accordance with and to the fullest extent
authorized by, the provisions of Delaware General Corporation Law as it may
from time to time be amended. Each person who is or was an employee or
agent of the Company, and each person who serves or may have served as an
employee or agent of another corporation, partnership, joint venture trust
or other enterprise, may be similarly indemnified at the discretion of the
Board of Directors.
In addition to indemnification provided by statutes, SafeCard's
Certificate of Incorporation and By-Laws, the Company has written indemnity
agreements with its directors and with certain of its officers. In
general, the written indemnity agreements provide broad protection to the
indemnitee, including, among other things, (i) mandatory advancement of
litigation expenses (including attorneys' fees), subject to an undertaking
by the indemnitee to repay such advances if it is later determined that he
or she is not entitled to indemnification; (ii) contribution toward the
amount incurred by the indemnitee under certain circumstances where
complete indemnification may otherwise be unavailable; (iii) continuation
of the maximum directors' and officers' liability insurance available to
the Company; and (iv) payment of expenses incurred by the indemnitee in
actions brought by the indemnitee under certain circumstances. The
indemnity agreements provide additional benefits in the event of a change
in control of the Company. The indemnity agreements also provide that no
action may be brought by or on behalf of the Company against the indemnitee
after the expiration of two years from the date of the accrual of such
action.
Item 7 (Form S-8). Exemption from Registration Claimed
Not applicable.
Item 8 (Form S-8) and Item 16 (Form S-3). Exhibits
This Registration Statement includes the following exhibits:
Exhibit Number
5 Opinion of Mahoney Adams & Criser, P.A., counsel for the
Company, concerning the legality of the securities being
registered.
10(a) Option Agreement between the Company and Paul G. Kahn
(incorporated by reference to Exhibit 1 of the Company's
Current Report on Form 8-K filed on December 6, 1993.)
10(b) Stock Option Agreement between the Company and Francis J. Marino
(incorporated by reference to Exhibit 10(a) of the Company's
quarterly report on Form 10-Q for the period ended January 31,
1994.)
10(c) Stock Option Agreement between the Company and Thomas F. Petway,
III (incorporated by reference to Exhibit 10(c) of the Company's
quarterly on Form 10-Q for the period ended April 30, 1994.)
10(d) Stock Option Agreement between the Company and G. Thomas
Frankland (incorporated by reference to Exhibit 10(a) to the
Company's quarterly report on Form 10-Q for the period ended
April 30, 1994.)
15 Letter Regarding unaudited financial information.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of Mahoney Adams & Criser, P.A., counsel for the Company
(included in Exhibit (5)).
15 Letter regarding unaudited financial information.
23(a) Consent of Price Waterhouse LLP, Independent Accountants.
23(b) Consent of Mahoney Adams & Criser, P.A., counsel for the Company
(included in Exhibit (5)).
25 Powers of Attorney.
Item 9 (Form S-8) and Item 17 (Form S-3). Undertakings
(1) The undersigned registrant hereby undertakes:
(a) To file during any period in which offers or sales of the
securities registered hereunder 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 of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this 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
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), that are incorporated by
reference in this Registration Statement.
(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 therein, 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 this Registration Statement 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.
(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
Commission such indemnification is against public policy as expressed in
the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Ponte Vedra Beach, State of
Florida, on the 21st day of September, 1994.
SAFECARD SERVICES INCORPORATED
By: *
----------------------------
Paul G. Kahn
Chairman and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on
the date indicated.
Signature Title Date
*
- ------------------------ Director September 21, 1994
William T. Bacon, Jr.
*
- ------------------------ Director September 21, 1994
Marshall L. Burman
*
- ------------------------ Director September 21, 1994
Robert L. Dilenschneider
*
- ------------------------ Director, Chairman and September 21, 1994
Paul G. Kahn Chief Executive Officer
*
- ------------------------ Director September 21, 1994
Eugene Miller
*
- ------------------------ Director September 21, 1994
Thomas F. Petway, III
*
- ------------------------ Chief Financial Officer September 21, 1994
G. Thomas Frankland (also principal accounting
officer)
FRANCIS J. MARINO
- ----------------------- September 21, 1994
Francis J. Marino
*Attorney in Fact
* By signing his name hereto, Francis J. Marino does sign this document
on behalf of each of the persons indicated by an asterisk above, pursuant
to Powers of Attorney duly executed by such persons and filed with the
Securities and Exchange Commission herewith.
Pursuant to the requirements of the Securities Act, the trustees (or
other persons who administer the employee benefit plans) have duly caused
this Registration Statement to be signed on their behalf by the
undersigned, thereunto duly authorized, in the City of Ponte Vedra Beach,
State of Florida on the 21st day of September, 1994.
SAFECARD SERVICES, INCORPORATED
1994 Long Term Stock-Based Incentive Plan
By: *
--------------------------------------
Marshall L. Burman
Chairman of the Compensation Committee
<PAGE>
INDEX TO EXHIBITS
Pagination by
Exhibit Exhibit Sequential
Number Description Numbering System
5 Opinion of Mahoney Adams & Criser, P.A., 21-22
counsel for the Company, concerning the
legality of the securities being registered.
10(a) Option Agreement between the Company and Paul G. ---
Kahn (incorporated by reference to Exhibit 1 of
the Company's Current Report on Form 8-K filed
on December 6, 1993.)
10(b) Stock Option Agreement between the Company and ---
Francis J. Marino (incorporated by reference to
Exhibit 10(a) of the Company's quarterly report
on Form 10-Q for the period ended January 31, 1994.)
10(c) Stock Option Agreement between the Company and Thomas F. ---
Petway, III (incorporated by reference to Exhibit
10(c) of the Company's quarterly on Form 10-Q for
the period ended April 30, 1994.)
10(d) Stock Option Agreement between the Company and ---
G. Thomas Frankland (incorporated by reference to
Exhibit 10(a) to the Company's quarterly report on
Form 10-Q for the period ended April 30, 1994.)
15 Letter regarding unaudited financial information 24
23(a) Consent of Price Waterhouse LLP, Independent Accountants 26
23(b) Consent of Mahoney Adams & Criser, P.A., counsel for ---
the Company (included in Exhibit 5).
25 Powers of Attorney. 28-34
EXHIBIT 5
September 21, 1994
Board of Directors
SafeCard Services, Incorporated
3001 East Pershing Boulevard
Cheyenne, WY 82001
Gentlemen:
At your request, we have reviewed the Registration Statement
of SafeCard Services, Incorporated, a Delaware corporation (the
"Company"), dated September 22, 1994 on Forms S-8 and S-3 under
the Securities Act of 1933 (the "Registration Statement"). The
Registration Statement covers an aggregate of 2,400,000 shares of
the Company's common stock par value $0.01 per share (the "Common
Stock"), either (1) issuable upon exercise of options which have
been or may be granted to certain employees and directors of the
Company (the "Options"), (2) issuable upon exercise of certain
stock appreciation rights not yet granted (the "SARs"), or (3)
which may be acquired upon the lapse of certain restrictions (the
"Restrictions").
We have examined the originals, or certified, confirmed or
reproduction copies, of all such records, agreements, instruments
and documents as we have deemed relevant or necessary as the basis
for the opinion hereinafter expressed. In all such examinations,
we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies
submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to such opinion, we have relied upon
statements or certificates of public officials, officers or
representatives of the Company and others.
Based on the foregoing, and subject to the limitations set
forth herein, we are of the opinion that the 2,400,000 shares of
Common Stock issuable upon lapse of the Restrictions, exercise of
the SARs, or exercise of the Options, when issued pursuant to the
terms of the Options and SARs and upon lapse of the Restrictions,
and assuming such shares have been or will be issued for not less
than the par value thereof, will be validly issued, fully paid and
nonassessable.
We are members of The Florida Bar and do not hold ourselves
out as being conversant with the laws of any jurisdiction other
than the United States of America and the State of Florida, and, to
the extent required by the foregoing opinion, the General Law of
the State of Delaware.
We hereby consent to the filing of this letter as an exhibit
to the Registration Statement and all amendments thereto.
Sincerely,
MAHONEY ADAMS & CRISER, P.A.
EXHIBIT 15
September 20, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
We are aware that SafeCard Services, Incorporated has
included our reports dated February 25, 1994, June 13,
1994 and August 18, 1994 (issued pursuant to the
provisions of Statement on Auditing Standards No. 71) in
the Prospectus constituting part of its Registration
Statement on Form S-8 and S-3 to be filed on or about
September 21, 1994. We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
EXHIBIT 23(a)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration
Statement on Form S-8 and S-3 of our report dated December
10, 1993, which appears on page 41 of the 1993 Annual
Report to Shareholders of SafeCard Services, Incorporated,
which is incorporated by reference in SafeCard Services,
Incorporated's Annual Report on Form 10-K for the year
ended October 31, 1993. We also consent to the
incorporation by reference of our report on the Financial
Statement Schedules, which appears on page 19 of such
Annual Report on Form 10-K.
PRICE WATERHOUSE LLP
Denver, Colorado
September 20, 1994
EXHIBIT 25
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
WILLIAM T. BACON, JR.
-----------------------------
William T. Bacon, Jr.
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
MARSHALL L. BURMAN
-----------------------------
Marshall L. Burman
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
ROBERT L. DILENSCHNEIDER
-----------------------------
Robert L. Dilenschneider
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
PAUL G. KAHN
-----------------------------
Paul G. Kahn
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
EUGENE MILLER
-----------------------------
Eugene Miller
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
THOMAS F. PETWAY, III
-----------------------------
Thomas F. Petway, III
(SEAL)
SPECIAL POWER OF ATTORNEY
-------------------------
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director or
Officer of SafeCard Services, Incorporated (the "Company") hereby
constitutes and appoints, Paul G. Kahn, G. Thomas Frankland and Francis J.
Marino and each or any of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in
his name, place and stead, to sign that certain Form S-3 and S-8
Registration Statement and any and all amendments (including post-effective
amendments) thereto relating to the registration of the Company's 1994 Long
Term Stock-Based Incentive Plan and shares of the Company's Common Stock to
be issued thereunder 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 full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, 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 their substitutes may
lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 9 day of
September, 1994.
G. THOMAS FRANKLAND
-----------------------------
G. Thomas Frankland
(SEAL)
