-----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, BNgJrHoRCgMiEpwu/X8witoPUG6XBP4YMKszZslL8UqSpZXaqKkz2qYiUDnxFZY6 ZPB4K7cWixxZJ5oBTicSwQ== 0000081050-99-000004.txt : 19990217 0000081050-99-000004.hdr.sgml : 19990217 ACCESSION NUMBER: 0000081050-99-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 19990216 EFFECTIVENESS DATE: 19990216 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PUBLICARD INC CENTRAL INDEX KEY: 0000081050 STANDARD INDUSTRIAL CLASSIFICATION: REFRIGERATION & SERVICE INDUSTRY MACHINERY [3580] IRS NUMBER: 230991870 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-72411 FILM NUMBER: 99541252 BUSINESS ADDRESS: STREET 1: ONE POST RD CITY: FAIRFIELD STATE: CT ZIP: 06430 BUSINESS PHONE: 2032543900 MAIL ADDRESS: STREET 1: ONE POST ROAD CITY: FAIRFIELD STATE: CT ZIP: 06430 FORMER COMPANY: FORMER CONFORMED NAME: PUBLICKER INDUSTRIES INC DATE OF NAME CHANGE: 19920703 S-8 1 As filed with the Securities and Exchange Commission on February 16, 1999 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 __________________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________________________ PUBLICARD, INC. (Exact name of registrant as specified in its charter) Pennsylvania 23-0991870 (State or other jurisdiction(I.R.S. Employer of incorporation or organization)Identification No.) One Post Road, Fairfield, Connecticut 06430 (Address of principal executive offices) OPTION AGREEMENTS DATED AS OF NOVEMBER 24, 1998 BETWEEN PUBLICARD, INC. AND THE PERSONS NAMED IN NOTE (2) TO THE FEE TABLE BELOW OPTION AGREEMENTS DATED AS OF NOVEMBER 24, 1998 BETWEEN PUBLICARD, INC. AND THE PERSONS NAMED IN NOTE (3) TO THE FEE TABLE BELOW (Full title of Plans) JAMES J. WEIS President and Chief Executive Officer PubliCARD, Inc. One Post Road Fairfield, Connecticut 06430 (Name and address of agent for service) (203) 254-3900 (Telephone number, including area code, of agent for service) Copies to: JOEL I. GREENBERG, ESQ. Kaye, Scholer, Fierman, Hays & Handler, LLP 425 Park Avenue New York, New York 10022 (212) 836-8000 __________________________________ CALCULATION OF REGISTRATION FEE Proposed maximum Proposed maximum Amount of Title of Amount to be offereing price aggregate offering Registra- securities to registered per unit (1) offering price (1) tion Fee be registered Common Stock, par value $.10 per share 83,270 (2) $2.00 $166,540 $46.30 Common Stock, par value $.10 per share 250,000 (3) $2.00 $500,000 $139.00 Totals 333,270 $666,540 $185.30 (1) Computed in accordance with Rule 457(h)(1) under the Securities Act of 1933, as amended, based on the exercise price of the options granted under the Option Agreements described in notes (2) and (3). (2) Represents the total number of shares of Common Stock which may be issued upon exercise of stock options granted under separate Option Agreements dated as of November 24, 1998 between PubliCARD, Inc. and each of the following persons: (1) William Marc Postlewaite, (2) Kim J. Vogel, (3) Vincent T. Poole, (4) Stephen A. Ewald, (5) Wayne Matthews and (6) Bob Pauley. (3) Represents the total number of shares of Common Stock which may be issued upon exercise of stock options granted under separate Option Agreements dated as of November 24, 1998 between PubliCARD, Inc. and each of the following persons: (1) William Marc Postlewaite, (2) Kim J. Vogel, (3) Vincent T. Poole, (4) Stephen A. Ewald, (5) Cy Allen Hudson, (6) John Pauley, (7) Bret Tobey, (8) Laura Craig, (9) Jay Thomason, (10) Terry Best and (11) Wayne Matthews. 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 by PubliCARD, Inc., a Pennsylvania corporation (the "Company"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein by reference: 1.The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997. 2.Amendment No. 1 to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997, on Form 10-K/A. 3.The Company's Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 1998, June 30, 1998 and September 30, 1998. 4.The Company's Current Reports on Form 8-K, dated August 14, 1998, September 17, 1998, November 6, 1998 and December 7, 1998, as amended by the Company's Current Report on Form 8-K/A dated February 5, 1999. 5.A description of the Company's Common Stock, par value $0.10 per share, which is included in a Registration Statement filed pursuant to the Exchange Act, including any amendments or reports which are filed for the purpose of updating such descriptions. All documents filed by the Company after the date hereof 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 incorporated by reference herein and to be a part hereof from the date of filing such documents. Item 4.Description of Securities. Not applicable. Item 5.Interests of Named Experts and Counsel. Not applicable. Item 6.Indemnification of Directors and Officers. The Pennsylvania Business Corporation Law (the "PBCL") permits a corporation to indemnify its directors and officers against expenses, judgments, fines and amounts paid in settlement incurred by them in connection with any pending, threatened or completed action or proceeding (other than an action by or in the right of the corporation (a "derivative action")), and permits such indemnification against expenses incurred in connection with any pending, threatened or completed derivative action, if the director or officer has acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation; and, with respect to any criminal proceeding in a third-party action, had no reasonable cause to believe his or her conduct was unlawful. The PBCL provides that expenses incurred in defending any action or proceeding may be paid by the corporation in advance of the final disposition upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined that the director or officer is not entitled to be indemnified by the corporation under Pennsylvania law. Under the PBCL, the statutory provisions for indemnification and advancement of expenses are non-exclusive with respect to any other rights, such as contractual rights, to which a person seeking indemnification or advancement of expenses may be entitled under the Company's By-laws or otherwise. Such contractual or other rights may require indemnification against judgments, fines and amounts paid in settlement incurred by the indemnified person both in connection with derivative actions and third-party actions, except where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted willful misconduct or recklessness. The PBCL permits a corporation to purchase and maintain insurance on behalf of any director or officer of the corporation against any liability asserted against the director or officer and incurred in such capacity, whether or not the corporation would have the power to indemnify the director or officer against such liability. Under the Pennsylvania Associations Code, if a By-law adopted by the stockholders so provides, a director shall not be personally liable, as such, for monetary damages for any action taken or omitted unless the director both (i) breached or failed to perform the duties of his or her office under Pennsylvania law and (ii) the breach or failure constituted self dealing, willful misconduct or recklessness. Article V of the Company's By-laws provides for both the limitation of the monetary liability of the directors of the Company and for the mandatory indemnification of directors and officers. Under Article V of the Company's By-laws, a director will not be held personally liable to the Company, its stockholders or third parties for monetary damages as a consequence of any act or omission unless the director both (i) breached or failed to perform the duties of his or her office under Pennsylvania law and (ii) the breach or failure constituted self dealing, willful misconduct or recklessness. In addition, under Article V of the Company's By-laws a director, officer or, at the Board of Directors' discretion, employee or other person who is or was serving in any capacity at the request of or for the benefit of the Company, will be indemnified and held harmless by the Company for all actions taken by him or her and for all failure to take action to the fullest extent permitted by Pennsylvania law against all expense, liability and loss (including, without limitation, attorneys' fees, judgments, fines, taxes, penalties and amounts paid or to be paid in settlement) actually and reasonably incurred by such director, officer, employee or other person in connection with any threatened, pending or completed action, suit or proceeding (including, without limitation, an action, suit or proceeding by or in the right of the Company), whether civil, criminal, administrative or investigative. No indemnification is permitted where the act or failure to act by the person seeking to be indemnified constitutes willful misconduct or recklessness as determined by a court of competent jurisdiction. The Company currently maintains directors' and officers' liability insurance providing for coverage of up to $15,000,000. The Company's assets and equity, however, may be called upon to provide indemnification to officers and directors to the extent any indemnified amount exceeds the Company's liability insurance limit, or to the extent any matter required to be indemnified by the Company's By-laws falls outside the scope of the policy's coverage. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors and officers pursuant to the foregoing provisions, the Company 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. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit No. Description 4.1 Amended and Restated Articles of Incorporation, amended and restated through November 2, 1998, of the Company. Incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1998. 4.2 By-laws of the Company. Incorporated by reference to the Company's Annual Report on Form 10-K, for the fiscal year ended December 31, 1990. 4.3 Option Agreements, dated as of November 24, 1998, between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. Exhibit includes a representative example of such option agreements together with a Schedule identifying the omitted option agreements and material differences from filed agreement. 4.4 Option Agreements, dated as of November 24, 1998, between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. Exhibit includes a representative example of such option agreements together with a Schedule identifying the omitted option agreements and material differences from filed agreement. 5.1 Opinion of Schnader, Harrison, Segal & Lewis with respect to legality of securities being registered. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Schnader, Harrison, Segal & Lewis, LLP (included in Exhibit 5.1). 24.1 Powers of Attorney (included on the signature page of this Registration Statement). Item 9. 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 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; 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 the initial bona fide offering thereof; and 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 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 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 Fairfield, State of Connecticut on February 16, 1999. PUBLICARD, INC. By: /s/ James J. Weis James J. Weis President and Chief Executive Officer Power of Attorney. Each person whose signature appears below hereby authorizes each of James J. Weis and Antonio L. DeLise, as attorney-in-fact, to sign and file on his behalf, individually and in each capacity stated below, any post-effective amendment to this registration statement or any registration statement relating to this offering. 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: Date /s/ James J. Weis February 16, 1999 James J. Weis Director, President and Chief Executive Officer (principal executive officer) /s/ Antonio L. DeLise February 16, 1999 Antonio L. DeLise Vice President and Chief Financial Officer (principal financial and accounting officer) /s/ Harry I. Freund February 16, 1999 Harry I. Freund Director /s/ Jay S. Goldsmith February 16, 1999 Jay S. Goldsmith Director /s/ Clifford B. Cohn February 16, 1999 Clifford B. Cohn Director /s/ David L. Herman February 16, 1999 David L. Herman Director /s/ L. G. Schafran February 16, 1999 L. G. Schafran Director EXHIBIT INDEX Exhibit No. Document 4.1 Amended and Restated Articles of Incorporation, amended and restated through November 2, 1998, of the Company. Incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1998. 4.2 By-laws of the Company. Incorporated by reference to the Company's Annual Report on Form 10-K, for the fiscal year ended December 31, 1990. 4.3 Option Agreements, dated as of November 24, 1998, between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. Exhibit includes a representative example of such option agreements together with a Schedule identifying the omitted option agreements and material differences from filed agreement. 4.4 Option Agreements, dated as of November 24, 1998, between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. Exhibit includes a representative example of such option agreements together with a Schedule identifying the omitted option agreements and material differences from filed agreement. 5.1 Opinion of Schnader, Harrison, Segal & Lewis with respect to legality of securities being registered. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Schnader, Harrison, Segal & Lewis (included in Exhibit 5.1). 24.1 Powers of Attorney (included on the signature page of this Registration Statement). EXHIBIT 4.3 OPTION AGREEMENT AGREEMENT, dated as of November 24, 1998, between PUBLICARD, INC., a Pennsylvania corporation with offices at One Post Road, Fairfield, Connecticut 06430 (the "Corporation"), and William Marc Postlewaite, residing at 262 South Beach Drive, Tarpon Springs, Florida 34689 (the "Optionee"). WHEREAS, the Corporation and the Optionee have entered into this Option Agreement pursuant to a certain Agreement and Plan of Merger (the "Merger Agreement") dated as of October 30, 1998 among the Corporation, Publicker Smart Card Acquisition Co. ("Acquisition Sub"), Tritheim Technologies, Inc. (the "Target") and the security-holders of the Target named therein, pursuant to which Acquisition Sub shall merge with and into Target and Target shall become a wholly-owned subsidiary (the "Subsidiary") of the Corporation (the "Merger"). WHEREAS, the Optionee is an employee of the Target and is the holder of options to purchase shares of common stock in the Target (the "Target Options"). WHEREAS, in connection with the consummation of the Merger, the Corporation desires to grant to the Optionee a nonqualified stock option to acquire shares of the Corporation's Common Stock (as hereinafter defined) in exchange for the Target Options held by the Optionee. WHEREAS, the Optionee desires to accept such option in exchange for its Target Options, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, do hereby agree as follows: 1. The Optionee is hereby granted an option to purchase from the Corporation, subject to and under the terms and conditions set forth in this Agreement, all or any part of 32,405 shares of common stock, par value $.10 per share of the Corporation (the "Common Stock"), at an exercise price equal to $2.00 per share (the "Exercise Price"). This option is not intended to be treated as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. This option shall be exercisable from and after the date of this Agreement until its expiration in accordance with the terms of this Agreement. The Optionee may purchase all or any part of the shares (but not fractions of a share) to which this option relates, at such time or times as he may desire, until this option expires. Unless sooner terminated as provided in this Agreement, this option shall expire at 5:00 P.M. Eastern Time on the fifth anniversary of the date of this Agreement (the "Expiration Time"), and any shares not purchased on or before such date may not thereafter be purchased hereunder. 3. The Optionee shall exercise the option by delivering to the Corporation a written notice of exercise in substantially the form attached hereto as Exhibit A. Common Stock purchased pursuant to this Agreement shall be paid for in full in cash at the time of purchase or in shares of Common Stock surrendered to the Corporation or in a combination of cash and such shares. Shares of Common Stock thus surrendered shall be valued at their fair market value on the date of exercise. Upon receipt of payment and written notice of exercise, the Corporation shall deliver, without stock transfer tax to the Optionee or other person entitled to exercise the option, to the person exercising the option, a certificate or certificates for such shares. It shall be a condition to the performance of the Corporation's obligation to issue or transfer Common Stock upon exercise of this option that the person exercising this option pay, or make provision satisfactory to the Corporation for the payment of, any taxes (other than stock transfer taxes) which the Corporation is obligated to collect with respect to the issue or transfer of Common Stock upon exercise (including any federal, state or local withholding taxes). 4. The Corporation hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of the option such number of shares of its Common Stock as shall be required for issuance and delivery upon the exercise of the option, and that such shares, when issued in accordance with the terms of this Agreement, shall be validly issued, fully paid, and non-assessable. The Corporation covenants and agrees that it will from time to time take all such action as may be necessary to assure that the par value per share of the Common Stock is at all times equal to or less than the then effective Exercise Price of the option. 5. This option is not transferable other than by will or the laws of descent and distribution. Any other transfer of this option (including without limitation any purported assignment, whether voluntary or by operation of law, pledge, hypothecation or other disposition contrary to the provisions hereof, or levy of execution, attachment, trustee process or similar process, whether legal or equitable, of the option) shall be null and void and of no effect. 6. This option shall be exercisable during the life of the Optionee only by the Optionee and the Optionee's guardian or legal representative and after death only by the Optionee's legal representative. Notwithstanding the following provisions of this Section 6, no option shall be exercisable after the Expiration Time. If the Optionee's employment with the Subsidiary terminates for any reason other than (i) Cause (as defined below), (ii) death or (iii) Retirement (as defined below), the option may be exercised until 30 days after the date of such termination. If the Optionee's employment with the Subsidiary is terminated by the Subsidiary for Cause, the option shall terminate immediately upon such termination of employment. For the purposes of this Agreement, the term "Cause" shall mean (1) the willful failure by the Optionee to perform his required duties to the Subsidiary in any material respect, (2) gross negligence in the performance of his required duties to the Subsidiary, (3) the commission of a felony by the Optionee under the laws of the United States or any state thereof or any foreign country or subdivision thereof (whether or not in connection with his employment), (4) the willful engaging in misconduct by the Optionee which is materially injurious to the Subsidiary, monetarily or otherwise, (5) breach of any confidential information, non-competition or employee inventions provisions contained in any employment contract, if any, entered into by the Optionee and (6) substance abuse, alcoholism, excessive use of alcoholic products and any use of a narcotic or controlled substance (other than as duly prescribed medication). Upon termination of the Optionee's employment due to retirement at age 60 or older or disability (as hereinafter defined) (collectively, "Retirement"), the Optionee may exercise the option until the expiration of three years after the date of such termination of employment (the "Retirement Expiration Time"). Upon the death of the Optionee (i) while in active service with the Subsidiary or, (ii) if the Optionee's employment with the Subsidiary had terminated due to Retirement and the death of the Optionee occurred prior to the Retirement Expiration Time, the person or persons to whom the Optionee's rights under the option are transferred by will or the laws of descent and distribution may exercise the option until the expiration of 12 months after the date of the Optionee's death. For purposes of this Section 6, leaves of absence shall not be deemed terminations or interruptions of employment and the term "disability" shall have the meaning provided in Section 22(e)(3) of the Code. 7. If dividends payable in Common Stock during any fiscal year of the Corporation exceed an aggregate of 5% of the Common Stock issued and outstanding at the beginning of such fiscal year, or if, during any fiscal year of the Corporation, there is one or more splits, subdivisions, or combinations of shares of Common Stock resulting in an increase or decrease by more than 5% of the shares outstanding at the beginning of the year, the number of shares available under this option shall be increased or decreased proportionately, as the case may be, without change in the aggregate exercise price. Common Stock dividends, splits, subdivisions, or combinations during any fiscal year which do not exceed, in the aggregate, 5% of the Common Stock issued and outstanding at the beginning of such year shall be ignored for purposes of this option. All adjustments shall be made as of the day such action necessitating such adjustment becomes effective. In case the Corporation is merged or consolidated with another corporation, or in case the property or stock of the Corporation is acquired by another corporation, or in case of a reorganization or liquidation of the Corporation, the Board of Directors of the Corporation, or the board of directors of any corporation assuming the obligations of the Corporation hereunder, shall either (i) make appropriate provisions for the protection of this option by the substitution on an equitable basis of appropriate stock or other property of the Corporation, or appropriate stock or other property of the merged, consolidated or otherwise reorganized corporation, provided only that such substitution of options or other property shall comply with the requirements of Section 424 of the Code, or (ii) give written notice to Optionees that their options must be exercised within 30 days of the date of such notice (but not later than the Expiration Time) or they will be terminated. 8. Following a Change in Control (as defined below) and upon the occurrence of (a) a change in the Optionee's job title or a significant change in the nature or scope of the authorities, powers, functions, or duties normally attached to the Optionee's position with the Subsidiary within a two-year period after a Change in Control, and the Optionee terminates his employment with the Subsidiary within 90 days after such change in title or duties, or (b) termination of the Optionee's employment by the Subsidiary without Cause within a two-year period after a Change in Control, notwithstanding the provisions of Section 6 of this Agreement, the Optionee may exercise this option, within three years after the date of such termination of employment (but not later than the Expiration Time); provided, however, that upon the death of the Optionee within this three- year period, the person or persons to whom the Optionee's rights are transferred by will or the laws of descent and distribution may exercise the option within 12 months after the date of the Optionee's death (but not later than the Expiration Time). For purposes of this Agreement, "Change in Control" shall be deemed to occur: (i) if any person within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than the Corporation or any of its subsidiaries, has become the beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act, of 25 percent or more of the combined voting power of the Corporation's then outstanding voting securities, provided, however, that for purposes hereof, no Change in Control shall be deemed to have occurred if prior to the acquisition of 25 percent of the combined voting power of the Corporation's then outstanding voting securities, the full Board of Directors of the Corporation shall have adopted, by not less than a two-thirds vote, a resolution specifically approving such acquisition; or (ii) when a majority of the directors of the Corporation elected at any special or annual meeting of stockholders are not individuals nominated by the Corporation's incumbent Board of Directors or when individuals who are members of the Corporation's Board of Directors at any one time shall immediately thereafter cease to constitute a majority of the Corporation's Board of Directors. 9. The grant and exercise of this option, and the Corporation's obligation to sell and deliver shares upon the exercise of this option, shall be subject to the requirement that, if at any time the Board of Directors of the Corporation shall determine, in its discretion, that the listing, registration or qualification of the shares issuable or transferable upon exercise thereof upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the granting of this option, the issue, transfer, or purchase of shares thereunder may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board of Directors of the Corporation. The Corporation shall not be obligated to sell or issue any shares of Common Stock in any manner in contravention of the Securities Act of 1933, as amended, or any state securities law. 10. This Agreement shall not give the Optionee any right with respect to continuance as an employee of the Subsidiary, nor shall it be a limitation in any way on any legal right which the Board of Directors of the Subsidiary, the Subsidiary's stockholders or an officer of the Subsidiary may have to terminate the Optionee as an employee at any time. 11. The Optionee shall have no rights as a stockholder with respect to any shares issuable or transferable upon exercise of the option until the date a stock certificate is issued to the Optionee for such shares, and, except as otherwise expressly provided in this Agreement, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. 12. All notices hereunder shall be in writing, and if to the Corporation, shall be delivered personally to the Secretary of the Corporation or mailed to the address provided in the preamble of this Agreement, addressed to the attention of the Secretary, and if to the Optionee, shall be delivered personally or mailed to the Optionee at the address provided in the preamble of this Agreement. Such addresses may be changed at any time by notice from one party to the other. 13. All decisions or interpretations made by the Board of Directors of the Corporation with regard to any question arising hereunder shall be binding and conclusive on the Corporation and the Optionee. 14. This Agreement shall bind and inure to the benefit of the parties hereto and the successors and assigns of the Corporation and, to the extent provided in Sections 6 and 8, the executors, administrators, legatees and heirs of the Optionee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PUBLICARD, INC. By: /s/ James J. Weis Name: James J. Weis Title: President /s/ William Marc Postlewaite William Marc Postlewaite Exhibit A EXERCISE NOTICE The undersigned, pursuant to an Option Agreement dated November ___, 1998 between the undersigned and PubliCARD, Inc. (the "Corporation"), hereby irrevocably elects to exercise purchase rights represented by said option agreement for, and to purchase thereunder, _______ shares of the Common Stock (the "Shares") of the Corporation covered by said Option Agreement and herewith makes payment in full therefor pursuant to Section 3 of such Option Agreement. The undersigned (i) hereby agrees, represents and warrants that he or she will not dispose of the shares unless a registration statement under the Securities Act of 1933, as amended, covering the shares is in effect or, in the opinion of counsel to the Corporation, an exemption from such registration is available, and (ii) hereby acknowledges that the number of shares hereafter subject to the Option Agreement referred to above is hereafter reduced by the number of shares which he or she has hereby elected to purchase. Very truly yours, _______________________________________ Social Security Number:________________ Address:_______________________________ ________________________________________ Dated: ____________________________ Schedule to Exhibit 4.3 Attached to this Schedule is the Option Agreement dated as of November 24, 1998 between PubliCARD, Inc. and William Marc Postlewaite, which is a representative example of the Option Agreements dated as of November 24, 1998 between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. (the "Option Agreements"). The Option Agreements, which (other than the one attached to this Schedule) are set forth below, are substantially identical to the agreement attached to this Schedule except for the name of the optionee, his or her address and the number of shares of PubliCARD, Inc. Common Stock underlying the options reflected thereby as set forth below (other than addresses): Agreement Name of Optionee PubliCARD, Inc. Shares issuable upon exercise of the options Option Agreement dated Kim J. Vogel 22,308 as of November 24, 1998 Option Agreement dated Vincent T. Poole 15,931 as of November 24, 1998 Option Agreement dated Stephen A. Ewald 7,930 as of November 24, 1998 Option Agreement dated Wayne Matthews 2,348 as of November 24, 1998 Option Agreement dated Bob Pauley 2,348 as of November 24, 1998 EXHIBIT 4.4 OPTION AGREEMENT AGREEMENT, dated as of November 24, 1998, between PUBLICARD, INC., a Pennsylvania corporation with offices at One Post Road, Fairfield, Connecticut 06430 (the "Corporation"), and William Marc Postlewaite, residing at 262 South Beach Drive, Tarpon Springs, Florida 34689 (the "Optionee"). WHEREAS, the Corporation and the Optionee have entered into this Option Agreement pursuant to a certain Agreement and Plan of Merger (the "Merger Agreement") dated as of October 30, 1998 among the Corporation, Publicker Smart Card Acquisition Co. ("Acquisition Sub"), Tritheim Technologies, Inc. (the "Target") and the security-holders of the Target named therein, pursuant to which Acquisition Sub shall merge with and into Target and Target shall become a wholly-owned subsidiary (the "Subsidiary") of the Corporation (the "Merger"). WHEREAS, the Optionee is an employee of the Target and pursuant to the Merger Agreement, the Corporation desires to grant to the Optionee a nonqualified stock option to acquire shares of the Corporation's Common Stock (as hereinafter defined) to encourage the Optionee to remain an employee of the Subsidiary. WHEREAS, the Optionee desires to accept such option, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, do hereby agree as follows: 1. The Optionee is hereby granted an option to purchase from the Corporation, subject to and under the terms and conditions set forth in this Agreement, all or any part of 21,579 shares of common stock, par value $.10 per share of the Corporation (the "Common Stock"), at an exercise price equal to $2.00 per share (the "Exercise Price"). This option is not intended to be treated as an incentive stock option under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. This option shall become exercisable upon the third anniversary of the date of this Agreement (the "Exercisable Date"). Thereafter, the Optionee may purchase all or any part of the shares (but not fractions of a share) to which this option relates, at such time or times as he may desire, until this option expires. Unless sooner terminated as provided in this Agreement, this option shall expire at 5:00 P.M. Eastern Time on the eighth anniversary of the date of this Agreement (the "Expiration Time"), and any shares not purchased on or before such date may not thereafter be purchased hereunder. 3. The Optionee shall exercise the option by delivering to the Corporation a written notice of exercise in substantially the form attached hereto as Exhibit A. Common Stock purchased pursuant to this Agreement shall be paid for in full in cash at the time of purchase or in shares of Common Stock surrendered to the Corporation or in a combination of cash and such shares. Shares of Common Stock thus surrendered shall be valued at their fair market value on the date of exercise. Upon receipt of payment and written notice of exercise, the Corporation shall deliver, without stock transfer tax to the Optionee or other person entitled to exercise the option, to the person exercising the option, a certificate or certificates for such shares. It shall be a condition to the performance of the Corporation's obligation to issue or transfer Common Stock upon exercise of this option that the person exercising this option pay, or make provision satisfactory to the Corporation for the payment of, any taxes (other than stock transfer taxes) which the Corporation is obligated to collect with respect to the issue or transfer of Common Stock upon exercise (including any federal, state or local withholding taxes). 4. The Corporation hereby agrees that at all times there shall be reserved for issuance and delivery upon exercise of the option such number of shares of its Common Stock as shall be required for issuance and delivery upon the exercise of the option, and that such shares, when issued in accordance with the terms of this Agreement, shall be validly issued, fully paid, and non-assessable. The Corporation covenants and agrees that it will from time to time take all such action as may be necessary to assure that the par value per share of the Common Stock is at all times equal to or less than the then effective Exercise Price of the option. 5. This option is not transferable other than by will or the laws of descent and distribution. Any other transfer of this option (including without limitation any purported assignment, whether voluntary or by operation of law, pledge, hypothecation or other disposition contrary to the provisions hereof, or levy of execution, attachment, trustee process or similar process, whether legal or equitable, of the option) shall be null and void and of no effect. 6. This option shall be exercisable during the life of the Optionee only by the Optionee and the Optionee's guardian or legal representative and after death only by the Optionee's legal representative. Notwithstanding the following provisions of this Section 6, no option shall be exercisable after the Expiration Time. If the Optionee's employment with the Subsidiary terminates for any reason other than (i) Cause (as defined below), (ii) death or (iii) Retirement (as defined below), the option may be exercised (to the extent it was exercisable immediately preceding such termination) until 30 days after the date of such termination. If the option was not exercisable immediately preceding such termination of employment, the option shall terminate upon such termination of employment. If the Optionee's employment with the Subsidiary is terminated by the Subsidiary for Cause, the option shall terminate immediately upon such termination of employment, regardless of whether the option was exercisable immediately preceding such termination of employment. For the purposes of this Agreement, the term "Cause" shall mean (1) the willful failure by the Optionee to perform his required duties to the Subsidiary in any material respect, (2) gross negligence in the performance of his required duties to the Subsidiary, (3) the commission of a felony by the Optionee under the laws of the United States or any state thereof or any foreign country or subdivision thereof (whether or not in connection with his employment), (4) the willful engaging in misconduct by the Optionee which is materially injurious to the Subsidiary, monetarily or otherwise, (5) breach of any confidential information, non-competition or employee inventions provisions contained in any employment contract, if any, entered into by the Optionee and (6) substance abuse, alcoholism, excessive use of alcoholic products and any use of a narcotic or controlled substance (other than as duly prescribed medication). Upon termination of the Optionee's employment due to retirement at age 60 or older or disability (as hereinafter defined) (collectively, "Retirement"), the Optionee may exercise the option (to the extent it was exercisable immediately preceding such termination) until the expiration of three years after the date of such termination of employment (the "Retirement Expiration Time") . If the option was not exercisable immediately preceding such termination of employment, the option shall terminate upon such termination of employment. Upon the death of the Optionee (i) while in active service with the Subsidiary or, (ii) if the Optionee's employment with the Subsidiary had terminated due to Retirement and the death of the Optionee occurred prior to the Retirement Expiration Time, the person or persons to whom the Optionee's rights under the option are transferred by will or the laws of descent and distribution may exercise the option until the expiration of 12 months after the date of the Optionee's death, but only to the extent the option was exercisable immediately preceding the Optionee's death. If the option was not exercisable immediately preceding the Optionee's death, the option shall terminate upon the Optionee's death. For purposes of this Section 6, leaves of absence shall not be deemed terminations or interruptions of employment and the term "disability" shall have the meaning provided in Section 22(e)(3) of the Code. 7. If dividends payable in Common Stock during any fiscal year of the Corporation exceed an aggregate of 5% of the Common Stock issued and outstanding at the beginning of such fiscal year, or if, during any fiscal year of the Corporation, there is one or more splits, subdivisions, or combinations of shares of Common Stock resulting in an increase or decrease by more than 5% of the shares outstanding at the beginning of the year, the number of shares available under this option shall be increased or decreased proportionately, as the case may be, without change in the aggregate exercise price. Common Stock dividends, splits, subdivisions, or combinations during any fiscal year which do not exceed, in the aggregate, 5% of the Common Stock issued and outstanding at the beginning of such year shall be ignored for purposes of this option. All adjustments shall be made as of the day such action necessitating such adjustment becomes effective. In case the Corporation is merged or consolidated with another corporation, or in case the property or stock of the Corporation is acquired by another corporation, or in case of a reorganization or liquidation of the Corporation, the Board of Directors of the Corporation, or the board of directors of any corporation assuming the obligations of the Corporation hereunder, shall either (i) make appropriate provisions for the protection of this option by the substitution on an equitable basis of appropriate stock or other property of the Corporation, or appropriate stock or other property of the merged, consolidated or otherwise reorganized corporation, provided only that such substitution of options or other property shall comply with the requirements of Section 424 of the Code, or (ii) give written notice to the Optionee that his options, which will become immediately exercisable (if not already immediately exercisable), must be exercised within 30 days of the date of such notice (but not later than the Expiration Time) or they will be terminated. 8. Following a Change in Control (as defined below) this option shall automatically become exercisable in full (if not already exercisable in full) upon the occurrence of either of the following events: (a) change in the Optionee's job title or a significant change in the nature or scope of the authorities, powers, functions, or duties normally attached to the Optionee's position with the Subsidiary within a two-year period after a Change in Control, and the Optionee terminates his employment with the Subsidiary within 90 days after such change in title or duties; or (b) termination of the Optionee's employment by the Subsidiary without Cause within a two-year period after a Change in Control. In either of such events, notwithstanding the provisions of Section 6 of this Agreement, the Optionee may exercise the option, within three years after the date of such termination of employment (but not later than the Expiration Time); provided, however, that upon the death of the Optionee within this three-year period, the person or persons to whom the Optionee's rights are transferred by will or the laws of descent and distribution may exercise the option within 12 months after the date of the Optionee's death (but not later than the Expiration Time). For purposes of this Agreement, "Change in Control" shall be deemed to occur: (i) if any person within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than the Corporation or any of its subsidiaries, has become the beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act, of 25 percent or more of the combined voting power of the Corporation's then outstanding voting securities, provided, however, that for purposes hereof, no Change in Control shall be deemed to have occurred if prior to the acquisition of 25 percent of the combined voting power of the Corporation's then outstanding voting securities, the full Board of Directors of the Corporation shall have adopted, by not less than a two-thirds vote, a resolution specifically approving such acquisition; or (ii) when a majority of the directors of the Corporation elected at any special or annual meeting of stockholders are not individuals nominated by the Corporation's incumbent Board of Directors or when individuals who are members of the Corporation's Board of Directors at any one time shall immediately thereafter cease to constitute a majority of the Corporation's Board of Directors. 9. The grant and exercise of this option, and the Corporation's obligation to sell and deliver shares upon the exercise of this option, shall be subject to the requirement that, if at any time the Board of Directors of the Corporation shall determine, in its discretion, that the listing, registration or qualification of the shares issuable or transferable upon exercise thereof upon any securities exchange or under any state or Federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition of, or in connection with, the granting of this option, the issue, transfer, or purchase of shares thereunder may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board of Directors of the Corporation. The Corporation shall not be obligated to sell or issue any shares of Common Stock in any manner in contravention of the Securities Act of 1933, as amended, or any state securities law. 10. This Agreement shall not give the Optionee any right with respect to continuance as an employee of the Subsidiary, nor shall it be a limitation in any way on any legal right which the Board of Directors of the Subsidiary, the Subsidiary's stockholders or an officer of the Subsidiary may have to terminate the Optionee as an employee at any time. 11. The Optionee shall have no rights as a stockholder with respect to any shares issuable or transferable upon exercise of the option until the date a stock certificate is issued to the Optionee for such shares, and, except as otherwise expressly provided in this Agreement, no adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued. 12. All notices hereunder shall be in writing, and if to the Corporation, shall be delivered personally to the Secretary of the Corporation or mailed to the address provided in the preamble of this Agreement, addressed to the attention of the Secretary, and if to the Optionee, shall be delivered personally or mailed to the Optionee at the address provided in the preamble of this Agreement. Such addresses may be changed at any time by notice from one party to the other. 13. All decisions or interpretations made by the Board of Directors of the Corporation with regard to any question arising hereunder shall be binding and conclusive on the Corporation and the Optionee. 14. This Agreement shall bind and inure to the benefit of the parties hereto and the successors and assigns of the Corporation and, to the extent provided in Sections 6 and 8, the executors, administrators, legatees and heirs of the Optionee. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. PUBLICARD, INC. By: /s/ James J. Weis Name: James J. Weis Title: President /s/ William Marc Postlewaite William Marc Postlewaite Exhibit A EXERCISE NOTICE The undersigned, pursuant to an Option Agreement dated November ___, 1998 between the undersigned and PubliCARD, Inc. (the "Corporation"), hereby irrevocably elects to exercise purchase rights represented by said option agreement for, and to purchase thereunder, _______ shares of the Common Stock (the "Shares") of the Corporation covered by said Option Agreement and herewith makes payment in full therefor pursuant to Section 3 of such Option Agreement. The undersigned (i) hereby agrees, represents and warrants that he or she will not dispose of the shares unless a registration statement under the Securities Act of 1933, as amended, covering the shares is in effect or, in the opinion of counsel to the Corporation, an exemption from such registration is available, and (ii) hereby acknowledges that the number of shares hereafter subject to the Option Agreement referred to above is hereafter reduced by the number of shares which he or she has hereby elected to purchase. Very truly yours, __________________________________________ Social Security Number:____________________ Address:___________________________________ ___________________________________________ Dated: _______________________ Schedule to Exhibit 4.4 Attached to this Schedule is the Option Agreement dated as of November 24, 1998 between PubliCARD, Inc. and William Marc Postlewaite, which is a representative example of the Option Agreements dated as of November 24, 1998 between PubliCARD, Inc. and certain employees of Tritheim Technologies, Inc., a subsidiary of PubliCARD, Inc. (the "Option Agreements"). The Option Agreements, which (other than the one attached to this Schedule) are set forth below, are substantially identical to the agreement attached to this Schedule except for the name of the optionee, his or her address and the number of shares of PubliCARD, Inc. Common Stock underlying the options reflected thereby as set forth below (other than addresses): PubliCARD, Inc. Shares Agreement Name of Optionee issuable upon exercise of the options Option Agreement dated as of November 24, 1998 Kim J. Vogel 11,171 Option Agreement dated as of November 24, 1998 Vincent T. Poole 71,338 Option Agreement dated as of November 24, 1998 Stephen A. Ewald 66,218 Option Agreement dated as of November 24, 1998 Cy Allen Hudson 15,427 Option Agreement dated as of November 24, 1998 John Pauley 13,391 Option Agreement dated as of November 24, 1998 Bret Tobey 8,896 Option Agreement dated as of November 24, 1998 Laura Craig 8,789 Option Agreement dated as of November 24, 1998 Jay Thomason 8,789 Option Agreement dated as of November 24, 1998 Terry Best 13,290 Option Agreement dated as of November 24, 1998 Wayne Matthews 11,112 EXHIBIT 5.1 February 16, 1999 PubliCARD, Inc. One Post Road Fairfield, CT 06430 Re: PubliCARD, Inc. Ladies and Gentlemen: We have acted as special counsel to PubliCARD, Inc., a Pennsylvania corporation (the "Company"), in connection with the Company's registration statement on Form S-8 (the "Registration Statement") to be filed pursuant to the Securities Act of 1933, as amended (the "Securities Act"). The Registration Statement relates to an aggregate of 333,270 shares of the Company's common stock, par value $.10 per share (the "Common Stock"), (i) 83,270 of which may be issued upon the exercise of stock options granted pursuant to substantially identical Option Agreements dated as of November 24, 1998 between the Company and each of the persons listed on Schedule A attached hereto, and (ii) 250,000 of which may be issued upon the exercise of stock options granted pursuant to substantially identical Option Agreements dated as of November 24, 1998 between the Company and each of the persons listed on Schedule B attached hereto (collectively, the "Option Agreements"). The Option Agreements have been entered into pursuant to the terms of the Agreement and Plan of Merger (the "Merger Agreement") dated as of October 30, 1998, among the Company, Publicker Smart Card Acquisition Co., Tritheim Technologies, Inc. ("Tritheim") and certain stockholders and holders of options to purchase stock of Tritheim. In connection with the above, we have reviewed the Company's articles of incorporation, its by-laws, resolutions adopted by its Board of Directors, the Registration Statement and its related Prospectus, the Merger Agreement, the Option Agreements and such other documents and proceedings as we have deemed appropriate. On the basis of such review, and having regard to legal considerations that we deem relevant, we are of the opinion that the shares of Common Stock to be offered pursuant to the Registration Statement have been duly authorized and, when issued in accordance with the terms set forth in the Option Agreements and in the Registration Statement, will be duly and validly issued, fully paid and nonassessable. Our opinion set forth above is based as to matters of law solely on applicable provisions of the laws of the Commonwealth of Pennsylvania, and we express no opinions as to any other laws, statutes, ordinances, rules or regulations. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this opinion, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Securities and Exchange Commission. Very truly yours, /s/ SCHNADER HARRISON SEGAL & LEWIS LLP SCHEDULE A Options to Purchase PubliCARD, Inc. Shares Issued in Exchange for Options to Purchase Tritheim Shares Holder of Option PubliCARD, Inc. Shares Exercise Price Per Share issuable upon exercise of the options William Marc Postlewaite 32,405 $2.00 Kim J. Vogel 22,308 $2.00 Vincent T. Poole 15,931 $2.00 Stephen A. Ewald 7,930 $2.00 Wayne Matthews 2,348 $2.00 Bob Pauley 2,348 $2.00 Total PubliCARD, Inc. Shares 83,270 SCHEDULE B Options to Purchase PubliCARD, Inc. Shares Employee Name Number of PubliCARD, Exercise Price Per Share Inc. Shares issuable upon exercise of the options William Marc Postlewaite 21,579 $2.00 Kim J. Vogel 11,171 $2.00 Vincent T. Poole 71,338 $2.00 Stephen A. Ewald 66,218 $2.00 Cy Allen Hudson 15,427 $2.00 John Pauley 13,391 $2.00 Bret Tobey 8,896 $2.00 Laura Craig 8,789 $2.00 Jay Thomason 8,789 $2.00 Terry Best 13,290 $2.00 Wayne Matthews 11,112 $2.00 Total PubliCARD, Inc. Shares 250,000 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of PubliCARD, Inc. on Form S- 8 of our report dated January 30, 1998, included in PubliCARD, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997, and the incorporation by reference in this registration statement of our report dated November 6, 1998, on Tritheim Technologies, Inc. as of and for the year ended December 31, 1997, included in PubliCARD, Inc.'s current report on Form 8-K/A filed on February 5, 1999. /s/ ARTHUR ANDERSEN LLP Stamford, Connecticut February 12, 1999 -----END PRIVACY-ENHANCED MESSAGE-----