-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MEF3NRpj0j5gm0C/dCjDUpcSU9vt9TAflTelPr/vml0EgZsHh88zWL+VKqvl+50L hHO9M+GMU35JpQUTQirxtA== /in/edgar/work/20000602/0000950172-00-001057/0000950172-00-001057.txt : 20000919 0000950172-00-001057.hdr.sgml : 20000919 ACCESSION NUMBER: 0000950172-00-001057 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000602 EFFECTIVENESS DATE: 20000602 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OFFICIAL PAYMENTS CORP CENTRAL INDEX KEY: 0001094998 STANDARD INDUSTRIAL CLASSIFICATION: [7374 ] IRS NUMBER: 522190781 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38416 FILM NUMBER: 648442 BUSINESS ADDRESS: STREET 1: THREE LANDMARK SQUARE CITY: STAMFORD STATE: CT ZIP: 06901-2501 BUSINESS PHONE: 2033564200 MAIL ADDRESS: STREET 1: 2333 SAN RAMON VALLEY BOULEVARD STREET 2: SUITE 450 CITY: SAN RAMON STATE: CA ZIP: 94583 FORMER COMPANY: FORMER CONFORMED NAME: US AUDIOTEX CORP DATE OF NAME CHANGE: 19990914 S-8 1 0001.txt S-8 ---------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 -------------- 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 ================================================================================================ 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 ================================================================================================ (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. EX-4 2 0002.txt EXHIBIT 4.4 - 2000 STOCK INCENTIVE PLAN OFFICIAL PAYMENTS CORPORATION 2000 STOCK INCENTIVE PLAN SECTION 1. PURPOSE. The purpose of the Official Payments Corporation 2000 Stock Incentive Plan (the "Plan") is to enable Official Payments Corporation (the "Company") to attract, retain and reward certain persons providing valuable service to the Company to strengthen the existing mutuality of interests between such individuals and the Company's stockholders by offering to such eligible persons an equity interest in the Company through the grant of (i) options ("Options") to purchase shares of the Company's common stock, par value $.01 per share ("Common Stock"), at a specified price per share ("Exercise Price") and (ii) shares of Common Stock with restrictions on transferability and other restrictions ("Restricted Stock" and, together with Options, "Awards"). SECTION 2. TYPES OF AWARDS; ELIGIBILITY. 2.1 The Plan provides for the grant of shares of Restricted Stock and Options that do not qualify as "incentive stock options" under Section 422 of the Code. 2.2 The following persons are eligible to be granted Awards under the Plan, as determined by the Committee (as defined below): (i) employees of the Company other than the Company's directors and/or officers (as contemplated within the meaning of Rule 4310(c)(25)(H)(i) of the Nasdaq Stock Market) and (ii) consultants or other independent advisors to the Company ("Consultants"). For purposes of this Plan, "Participant" shall mean a person who, at a time when eligible under this Section 2.2, has been granted an Award under the Plan. SECTION 3. ADMINISTRATION. 3.1 The Plan shall be administered by the Compensation Committee of the Company's Board of Directors ("Board" or the "Board of Directors") or, alternatively, by another committee composed of two or more Outside Directors of the Board as the Board shall designate to administer the Plan (in either case, the "Committee"). The Board may perform any function of the Committee under the Plan for any purpose, and in any case in which the Board is performing a function of the Committee under the Plan, each reference to the Committee herein shall be deemed to refer to the Board, except where the usage or context otherwise requires. 3.2 The Committee shall have the following authority with respect to Awards granted under this Plan: to grant Awards to persons eligible to receive them under the Plan; to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall deem advisable; to interpret the terms and provisions of the Plan and any Awards granted by it under the Plan; and to otherwise supervise the administration of the Plan. In particular, and without limiting its authority and powers, the Committee shall have full authority and discretion to make the following determinations with respect to the Options granted under this Plan: (a) to select the employees and Consultants to whom Awards will be granted; (b) to determine the type or types of Awards to be granted to each such eligible person; (c) to determine the number of shares of Common Stock to be covered by each Award granted hereunder (subject to the limitations contained in the Plan); (d) to determine the Exercise Price, vesting schedule and all other terms and conditions of any Option granted hereunder; (e) to determine the restrictions on transferability and all other terms and conditions of any shares of Restricted Stock granted hereunder; (f) to determine the "Fair Market Value" of a share of Common Stock on a given date. For purposes of this Plan and all Awards granted hereunder, the term "Fair Market Value" shall mean: (i) the average of the highest and lowest reported sales prices on the date in question (or if there is no reported sale on such date, on the last preceding date on which any reported sale occurred) as reported in the principal consolidated reporting system with respect to securities listed or admitted to trading on the principal United States securities exchange on which the shares of Common Stock are listed or admitted to trading; or (ii) if the Common Stock is not listed or admitted to trading on any such exchange, the average of the bid and offered prices quoted with respect to a share of Common Stock on such date on the National Association of Securities Dealers Automated Quotations System, or, if no such quotation is provided, on another similar system, selected by the Committee, then in use; or (iii) if neither Section 3.2(f)(i) or (ii) is applicable, the Fair Market Value of a share of Common Stock shall be determined by the Committee in such manner as it shall deem appropriate; (g) to prescribe the form of each written agreement, contract, notice or other instrument or document evidencing an Award (an "Award Agreement"), which need not be identical for each Award recipient; and (h) to amend the terms of any Award, prospectively or retroactively; provided, however, that no amendment shall impair the rights of the Participant without his or her written consent. 3.3 All determinations made by the Committee pursuant to the provisions of the Plan shall be final and binding on all persons, including the Company and all Participants. SECTION 4. STOCK SUBJECT TO PLAN. 4.1 The total number of shares of Common Stock which may be issued under the Plan shall be 1,250,000 (subject to adjustment as provided below). Such shares may consist of authorized but unissued shares or treasury shares. 4.2 Shares of Common Stock subject to any Award, including, without limitation, an Option or Restricted Stock Award, shall not be deemed delivered if such Awards are forfeited, expire or otherwise terminate without delivery of shares to the Participant and the shares subject to such Award shall again be available for grant pursuant to an Award under the Plan. Shares of Common Stock equal in number to the shares withheld in payment of the Exercise Price, and shares of Common Stock which are withheld in order to satisfy federal, state or local tax liabilities, shall not count against the above limit, and shall again be available for grant pursuant to an Award under this Plan. 4.3 In the event of any merger, reorganization, consolidation, sale of substantially all the Company's assets, recapitalization, stock dividend, stock split, spin-off, split-up, split-off, distribution of assets or other change in the Company's corporate structure affecting the shares of Common Stock, a substitution or adjustment, as may be determined to be appropriate by the Committee in its sole discretion, shall be made in the aggregate number of shares of Common Stock reserved for issuance under the Plan, the number of shares as to which Awards may be granted to any individual in any calendar year and the number and type of shares subject to outstanding Awards; provided, however, that no such adjustment shall increase the aggregate value of any outstanding Award. SECTION 5. OPTIONS. 5.1 The Options granted under the Plan may only be Non-Qualified Stock Options. 5.2 All Options granted under this Plan and the terms and conditions of such Options shall be evidenced by an Award Agreement between the Participant and the Company. 5.3 Each Option shall be subject to all the applicable provisions of the Plan, including the following terms and conditions, and to such other terms and conditions not inconsistent therewith as the Committee shall determine. (a) Exercise Price. The Exercise Price of each Option granted hereunder will be determined by the Committee at the time of grant and such Exercise Price will be specified in the Award Agreement. The Exercise Price of an Option may be less than the Fair Market Value of a share of Common Stock subject to the Option on the date of grant. (b) Vesting and Exercisability of Options. An Option shall become vested and exercisable in accordance with the terms and conditions as set forth in the applicable Award Agreement. The Award Agreement may provide that an Option is immediately exercisable, but the shares covered by the Option will be subject to a vesting schedule. In this case, if a Participant exercises his/her Option, the shares covered by the Option will be held in escrow until the Participant has satisfied certain conditions, such as continued employment for a specified period, and the vesting schedule lapses. (c) Option Term. The period during which a Option granted hereunder may be exercised shall commence on the date specified by the Committee in the Award Agreement and shall expire on the date specified in the Award Agreement; provided, however, that the term of the Option shall expire on the earliest to occur of: (i) the close of business on the last day of the three-month period commencing on the date of the Participant's termination of employment or service, other than on account of death, Disability, or a Termination for Cause (as defined below); (ii) the close of business on the last day of the one-year period commencing on the date of the option holder's termination of employment or service due to death or Disability; (iii) the date and time when the Participant's employment or service ceases due to a Termination for Cause; and (iv) the day immediately preceding the tenth anniversary of the date the Option was granted. (d) Defined Terms. Unless otherwise provided by the Committee in the Award Agreement, the following terms shall have the following meanings for purposes of the Plan: (i) "Disability" shall mean a condition of total incapacity, mental or physical, for further performance of duty with the Company, which the Committee shall have determined, on the basis of competent medical evidence, is likely to be permanent. (ii) "Termination for Cause" shall mean with respect to an employee or Consultant, as the case may be, that the employee's employment with, or Consultant's service to, the Company has been terminated as a result of the determination by the Board of Directors that such employee or Consultant has committed an act of embezzlement, fraud, dishonesty, or breach of fiduciary duty to the Company, or has deliberately disregarded the rules of the Company which resulted in loss, damage, or injury to the Company, or because the employee or Consultant has made an unauthorized disclosure of any of the secrets or confidential information of the Company, has induced any client or customer of the Company to breach any contract with the Company, has induced any principal for whom the Company acts as agent to terminate the agency relationship, or has engaged in any conduct that constitutes unfair competition with the Company. Notwithstanding the foregoing, if an employee or Consultant is a party to an employment agreement or a consulting agreement governing the terms of his employment or consultancy and such agreement contains a definition of "termination for cause" or a definition of an equivalent term, then for purposes hereof, the term "termination for cause" shall have the meaning ascribed to it in such agreement. (e) Effect of a Termination for Cause. No Option granted hereunder, whether or not previously exercisable, shall be exercised after the date and time on which the option holder's employment or service with the Company is terminated in a Termination for Cause. (f) Method of Exercise. Options may be exercised in whole or in part at any time during the Option Term by giving written notice of exercise to the Company specifying the number of shares to be purchased, accompanied by payment of the Exercise Price. Unless otherwise provided by the Committee in the Award Agreement, payment of the Exercise Price may be made in the following manner: (i) in United States dollars by certified check, money order or bank draft made payable to the order of Official Payments Corporation; (ii) delivery of shares of Common Stock that have been owned by the optionee for at least six months; (iii) a cashless exercise (which may be either (A) a broker-assisted cash exercise effected in accordance with rules adopted by the Committee or (B) a direction to the Company to withhold shares of Common Stock, otherwise deliverable to the option holder with respect to the Option, having a Fair Market Value on the date of exercise equal to the Option's Exercise Price); or (iv) in any combination of the foregoing. (g) No Stockholder Rights. A Participant shall not have rights to dividends or any of the other rights of a stockholder with respect to shares subject to an Option until the Participant has given written notice of exercise and has paid the Exercise Price for such shares. SECTION 6. TAX WITHHOLDING. 6.1 Each employee who has been granted an Option or Restricted Stock Award under this Plan shall be required to make arrangements satisfactory to the Committee regarding payment of any federal, state, local or other taxes of any kind required by law to be withheld in connection with such Award. The obligations of the Company under the Plan shall be conditioned on such payment or arrangements, and the Company shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the employee. 6.2 To the extent permitted by the Committee, and subject to such terms and conditions as the Committee may provide, an employee may elect to have the withholding tax obligation, or any additional tax obligation with respect to any Awards hereunder, satisfied by (i) having the Company withhold shares of Common Stock otherwise deliverable to such person with respect to the Award or (ii) delivering to the Company shares of previously acquired Common Stock that has been owned by the employee for at least six months. 6.3 Each Consultant shall be solely responsible for the payment of all tax obligations resulting from any Award granted to such Consultant under this Plan. SECTION 7. RESTRICTED STOCK. 7.1 Restricted Stock shall be subject to such restrictions on transferability and other restrictions, if any, as the Committee may impose, which restrictions may lapse separately or in combination at such dates, under such circumstances, in such installments, or otherwise, as the Committee may determine. All Awards of Restricted Stock granted under this Plan and the terms and conditions of such Award shall be evidenced by an Award Agreement between the Participant and the Company. Except to the extent restricted under the terms of the Plan and any Award Agreement relating to Restricted Stock, a Participant granted Restricted Stock shall have all of the rights of a stockholder including, without limitation, the right to vote Restricted Stock or the right to receive dividends thereon. 7.2 Except as otherwise determined by the Committee, upon termination of employment or service during the applicable restriction period, Restricted Stock that is at that time subject to restrictions shall be forfeited and reacquired by the Company; provided, however, that all such restrictions shall immediately lapse upon the Participant's death or Disability; and provided, further, however, that the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Restricted Stock shall be waived in whole or in part in the event of termination resulting from other specified causes. 7.3 Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine. If certificates representing Restricted Stock are registered in the name of the Participant, such certificates may bear an appropriate legend referring to the terms, conditions and restrictions applicable to such Restricted Stock. The Company may retain physical possession of the Restricted Stock certificate until the restrictions thereon shall have lapsed, in which case the Participant shall be required to have delivered a stock power to the Company, endorsed in blank, relating to the Restricted Stock. 7.4 Dividends paid on Restricted Stock, if any, shall be either paid at the dividend payment date in cash or shares of unrestricted Common Stock having a Fair Market Value equal to the amount of such dividends, or the payment of such dividends shall be deferred and/or the amount or value thereto automatically reinvested in additional Restricted Stock, other Awards, or other investment vehicles, as the Committee shall determine or permit. Common Stock distributed in connection with property distributed as a dividend shall be subject to restrictions and a risk of forfeiture to the same extent as the Restricted Stock with respect to which such Common Stock or other property has been distributed, unless otherwise determined by the Committee. SECTION 8. AMENDMENTS AND TERMINATION. The Board of Directors may discontinue the Plan at any time and may amend it from time to time without stockholder approval, except as required to satisfy applicable law or the rules and regulations of any relevant governmental authority, the Nasdaq Stock Market or any stock exchange on which the shares of the Common Stock are then currently traded or listed. No amendment or discontinuation of the Plan shall adversely affect any Award previously granted without the Participant's written consent. SECTION 9. CHANGE OF CONTROL. 9.1 Unless otherwise specified by the Committee in the Award Agreement, in the event of a Change of Control (as defined below) all or a portion of outstanding Options granted under the Plan shall become fully exercisable and all restrictions relating to all or a portion of a Restricted Stock Award shall immediately lapse pursuant to the terms of this Section 9.1. With respect to an Award which was granted within 6 months of a Change of Control, upon such Change of Control: (i) Options granted under the Plan (to the extent not already fully exercisable) shall become fully vested and exercisable in an amount equal to that number of Options which would have otherwise become fully exercisable (but for the occurrence of the Change of Control) on or before the one-year anniversary of the grant date of the Award; and (ii) all restrictions relating to a Restricted Stock Award shall immediately lapse with respect to that number of shares of Restricted Stock where the restrictions otherwise would have lapsed (but for the occurrence of the Change of Control) on or before the one-year anniversary of the grant date of the Award. With respect to an Award which was granted more than 6 months of a Change of Control, upon such Change of Control: (i) Options granted under the Plan (to the extent not already fully vested and exercisable) shall become fully exercisable in an amount equal to that number of Options which would have otherwise become fully exercisable (but for the occurrence of the Change of Control) on or before the end of the month which is 6 months after the Change of Control; and (ii) all restrictions relating to a Restricted Stock Award shall immediately lapse with respect to that number of shares of Restricted Stock where the restrictions otherwise would have lapsed (but for the occurrence of the Change of Control) on or before the end of the month which is 6 months after the Change of Control. 9.2 A "Change of Control" shall be deemed to have occurred if the event set forth in any one of the following paragraphs shall have occurred: (a) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or its affiliates) representing 35% or more of the combined voting power of the Company's then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause (i) of paragraph (c) below; or (b) the following individuals cease for any reason to constitute a majority of the number of directors then serving: individuals who, on the date hereof, constitute the Board and any new director (other than a director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of directors of the Company) whose appointment or election by the Board or nomination for election by the Company's shareholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the date hereof or whose appointment, election or nomination for election was previously so approved or recommended; or (c) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other entity, other than (i) a merger or consolidation immediately following which the directors of the Company immediately prior to such merger or consolidation continue to constitute at least a majority of the board of directors of the Company, the surviving entity or any parent thereof, (ii) a merger or consolidation which would result in the voting securities of the Company immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof) at least 65% of the combined voting power of the voting securities of the Company or such surviving entity or any parent thereof immediately after such merger or consolidation, or (iii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person any securities acquired directly from the Company or its affiliates) representing 35% or more of the combined voting power of the Company's then outstanding securities; (d) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement (or series of related agreements) for the sale or disposition by the Company of all or substantially all of the Company's assets, disregarding any sale or disposition to an entity, at least a majority of the directors of which were directors of the Company immediately prior to such sale or disposition or at least 65% of the combined voting power of which is owned by Persons in substantially the same proportions as their ownership of the Company immediately prior to such sale; or (e) the Board determines in its sole and absolute discretion that there has been a Change in Control of the Company. 9.3 For purposes of the Plan: (a) "Affiliate" of a Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned Person. (b) "Beneficial Owner" shall have the meaning set forth in Rule 13d-3 under the Exchange Act; provided, however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own, any security if the agreement, arrangement or understanding to vote such security arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made pursuant to and in accordance with, the applicable rules and regulations of the Exchange Act. (c) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (d) "Person" shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company or any subsidiaries of the Company (if any), (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its Affiliates, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company SECTION 10. GENERAL PROVISIONS. 10.1 Each Option under the Plan shall be subject to the requirement that, if at any time the Committee shall determine that (i) the listing, registration or qualification of the Common Stock subject or related thereto upon any securities exchange or under any state or federal law, or (ii) the consent or approval of any government regulatory body or (iii) an agreement by the recipient of an Award with respect to the disposition of Common Stock is necessary or desirable (in connection with any requirement or interpretation of any federal or state securities law, rule or regulation) as a condition of, or in connection with, the granting of such Award or the issuance, purchase or delivery of Common Stock thereunder, such Award shall not be granted or exercised, in whole or in part, unless such listing, registration, qualification, consent, approval or agreement shall have been effected or obtained free of any conditions not acceptable to the Committee. 10.2 Nothing set forth in this Plan shall prevent the Board from adopting other or additional compensation arrangements. Neither the adoption of the Plan nor any Award hereunder shall confer upon any employee of the Company any right to continued employment, and no Award shall confer upon any Consultant any right to continued service as a consultant or other independent advisor to the Company, as the case may be. 10.3 Determinations by the Committee under the Plan relating to the form, amount, and terms and conditions of Awards need not be uniform, and may be made selectively among persons who receive or are eligible to receive Awards under the Plan, whether or not such persons are similarly situated. 10.4 No member of the Board or the Committee, nor any officer or employee of the Company acting on behalf of the Board or the Committee, shall be personally liable for any action, determination or interpretation taken or made with respect to the Plan, and all members of the Board or the Committee and all officers or employees of the Company acting on their behalf shall, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, determination or interpretation. 10.5 If any provision of this Plan shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provisions hereof, and this Plan shall be construed and enforced as if such provisions had not been included. 10.6 This Plan shall be binding upon the heirs, executors, administrators, successors and assigns of the parties, including each Participant, present and future. 10.7 The headings and captions herein are provided for reference and convenience only, shall not be considered part of the Plan, and shall not be employed in the construction of the Plan. 10.8 No fractional shares of Common Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated. 10.9 Unless otherwise provided by the Committee in an Award Agreement, (i) Awards shall not be transferable by the Participant other than by will or by the laws of descent and distribution, and (ii) with respect to Options, during the Participant's lifetime, all Options shall be exercisable only by the Participant or by his or her guardian or legal representative. The Committee may permit a Participant to designate a beneficiary in accordance with terms and conditions as the Committee may determine. SECTION 11. EFFECTIVE DATE OF PLAN. 11.1 The provisions of the Plan became effective on June 2, 2000, the date that the Plan was approved and adopted by the Board of Directors. 11.2 No Award may be granted under this Plan after June 2, 2010. This Plan shall continue in effect until terminated by the Board of Directors. SECTION 12. GOVERNING LAW. The Plan shall be construed, administered and enforced according to the laws of the State of New York without giving effect to the conflict of laws principles thereof, except to the extent that such laws are preempted by federal law. EX-5 3 0003.txt EXHIBIT 5.1 - OPINION SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP June 2, 2000 Official Payments Corporation Three Landmark Square Stamford, CT 06901-2501 Re: Official Payments Corporation Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as special counsel to Official Payments Corporation, a Delaware corporation ("Official Payments"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by Official Payments with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Act of 1933, as amended (the "Securities Act"), on the date hereof. The Registration Statement relates to the proposed issuance by Official Payments of up to 1,250,000 shares of Official Payments common stock, par value $.01 per share (the "Common Stock"), pursuant to the Official Payments Corporation 2000 Stock Incentive Plan (the "Plan"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In connection with rendering this opinion, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of the following documents: (i) the Registration Statement; (ii) the Certificate of Incorporation of Official Payments, as amended to the date hereof; (iii) the Bylaws of Official Payments, as amended to the date hereof; (iv) resolutions of the Board of Directors of Official Payments in connection with its approval of the Plan; (vi) a specimen certificate of Common Stock; and (vii) such other certificates, instruments and documents as we considered necessary or appropriate for the purposes of this opinion. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such copies. As to any facts material to the opinion expressed herein which we have not independently established or verified, we have relied upon statements and representations of officers and other representatives of Official Payments and others. Members of our firm are admitted to the Bar of the State of New York, and we do not express any opinion as to the law of any other jurisdiction except for the General Corporation Law of the State of Delaware. Based upon and subject to the foregoing, we are of the opinion that the shares of Common Stock, when issued and paid for in accordance with the terms and conditions of the Plan, will be duly authorized, validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, however, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations of the Commission thereunder. Very truly yours, /s/ Skadden, Arps, Slate, Meagher & Flom LLP EX-23 4 0004.txt EXHIBIT 23.1 - CONSENT The Board of Directors Official Payments Corporation We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 26, 2000, relating to the balance sheets of Official Payments Corporation as of December 31, 1999 and 1998, and the related statements of operations, stockholders' equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 1999, and the related financial statement schedule, which report appears in the December 31, 1999 Annual Report on Form 10-K of Official Payments Corporation. /s/ KPMG LLP New York, New York June 2, 2000 -----END PRIVACY-ENHANCED MESSAGE-----