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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OFFICIAL PAYMENTS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Delaware
(State or Other Jurisdiction of Incorporation or Organization)
52-2190781
(I.R.S. Employer Identification No.)
Three Landmark Square, Stamford, Connecticut 06901-2501
(Address of Principal Executive Offices) (Zip Code)
OFFICIAL PAYMENTS CORPORATION 2000 STOCK INCENTIVE PLAN
(Full Title of the Plan)
MITCHELL H. GORDON, ESQ.
Vice President, General Counsel
Official Payments Corporation
Three Landmark Square
Stamford, Connecticut 06901-2501
(Name and Address of Agent For Service)
(203) 356-4200
Telephone Number, Including Area Code, of Agent For Service
Copies to:
ERIC J. FRIEDMAN, ESQ.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
CALCULATION OF REGISTRATION FEE
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Title Of Amount To Be Proposed Proposed
Securities To Be Registered Maximum Offering Maximum Aggregate Amount Of
Registered Price Per Share(1) Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------
Common Stock, 1,250,000 $4.0781 $5,097,657 $1,346
$.01 par value
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(1) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"). Such computation is based on
the restricted shares and shares of the Company's common stock that may
be acquired upon exercise of options granted in the future pursuant to
the Company's 2000 Stock Incentive Plan (the "Plan"), deemed to be
offered at $4.0781 per share, the average of the daily high and low
sales prices of the Company's common stock on the Nasdaq Stock Market
at the close of trading on May 31, 2000. This Registration Statement
also covers an undetermined number of shares of the Company's common
stock that, by reason of certain events specified in the Plan, may
become issuable upon exercise of options through the application of
certain anti-dilution provisions.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by the registrant, Official Payments
Corporation, a Delaware corporation (the "Company"), pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference herein:
(1) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999;
(2) The Company's Quarterly Report on Form 10-Q for the
fiscal quarter ended March 31 2000; and
(3) The description of the common stock, par value $.01 per
share, of the Company set forth in the Registration Statement on Form 8-A,
dated November 18, 1999 (including any amendment or report filed for the
purpose of updating such description).
All 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 hereof from the date of 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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Subsection (a) of Section 145 of the General Corporation Law
of Delaware (the "DGCL") empowers a corporation to 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
the corporation) by reason of the fact that such person is or was a
director, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of
the corporation and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 of the DGCL empowers a
corporation to 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 such person acted in any of the capacities
referenced in the preceding paragraph, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with
the defense or settlement of such action or suit if he acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification may 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 of the State of Delaware 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 shall deem proper.
Section 145 of the DGCL further provides that to the extent
a present or former director or officer of a corporation has been
successful in the defense of any action, suit or proceeding referred to in
subsections (a) and (b) or in the defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection therewith; that
indemnification or advancement of expenses provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified
party may be entitled; and empowers the corporation to purchase and
maintain insurance on behalf of a director, officer, employee or agent of
the corporation against any liability asserted against him or incurred by
him in any such capacity or arising out of his status as such whether or
not the corporation would have the power to indemnify him against such
liabilities under Section 145.
The Company's Certificate of Incorporation provides that no
director shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director (including,
without limitation, for serving on a committee of the Company's board of
directors), 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) arising under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived an improper personal
benefit.
The Company's bylaws provide that the Company must indemnify
any director, officer or employee against any liability incurred in
connection with any proceeding in which that person may be involved as a
party or otherwise, by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was serving at the
Company's request as a director, officer, employee, agent, fiduciary or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan, or other entity or enterprise, except to the extent that such
indemnification against a particular liability is expressly prohibited by
applicable law or where a judgment or other final adjudication adverse to
the indemnified person establishes, or where the Company determines, that
his acts (i) were in breach of such person's duty of loyalty to the Company
or its stockholders; (ii) were not in good faith or involved intentional
misconduct or a knowing violation of law; or (iii) resulted in receipt by
such person of an improper personal benefit. Such indemnification may
include advances of expenses prior to the final disposition of such
proceeding.
The Company maintains policies insuring its officers and
directors against certain civil liabilities, including liabilities under
the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index.
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
(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;
(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)(1)(i) and (a)(1)(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 with or furnished
to the Commission by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing
of the registrant's annual report pursuant to Section 13(a) or 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 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.
(h) 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 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.
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 Stamford, State of Connecticut,
on this 2nd day of June, 2000.
OFFICIAL PAYMENTS CORPORATION
(Registrant)
By: /s/ Thomas R. Evans
---------------------------------
Thomas R. Evans
Chairman of the Board and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this
registration statement has been signed as of June 2, 2000 by the following
persons in the capacities indicated.
Name Title
---- -----
/s/ Thomas R. Evans Chairman of the Board and Chief
- ------------------------------------ Executive Officer
Thomas R. Evans
/s/ Michael P. Presto Chief Operating Officer
- ------------------------------------ (Acting Principal Financial Officer)
Michael P. Presto
/s/ Kenneth Stern President and Director
- ------------------------------------
Kenneth Stern
/s/ Hyunjin F. Lerner Controller
- ------------------------------------
Hyunjin F. Lerner
/s/ Andrew Cohan Director
- ------------------------------------
Andrew Cohan
Director
- ------------------------------------
Christos Cotsakos
Director
- ------------------------------------
George L. Graziadio, Jr.
/s/ Vernon Loucks Jr. Director
- ------------------------------------
Vernon Loucks Jr.
/s/ Lee E. Mikles Director
- ------------------------------------
Lee E. Mikles
/s/ Bruce Nelson Director
- ------------------------------------
Bruce Nelson
Director
- ------------------------------------
Brian W. Nocco
EXHIBIT INDEX
Exhibit
Number Exhibit Description
- ------- -------------------
4.1 Certificate of Incorporation of the Company,
incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (No.
333-87325).
4.1.1 Certificate of Amendment to the Certificate of
Incorporation of the Company, incorporated by
reference to Exhibit 3.1.1 to the Company's
Registration Statement on Form S-1 (No. 333-87325)
4.2 Bylaws of the Company, incorporated by reference to
Exhibit 3.2 to the Company's Registration Statement
on Form S-1 (333-87325)
4.3 Common Stock Specimen, incorporated by reference to
Exhibit 4.3 to the Company's Registration Statement
on Form S-1 (No. 333-87325)
4.4 2000 Stock Incentive Plan
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel to the Company, as to the legality of the
securities being registered.
23.1 Consent of KPMG LLP relating to the audited financial
statements of the Company.