S-8: Securities to be offered to employees in employee benefit plans
Published on February 26, 1999
As filed with the Securities and Exchange Commission on February 26, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SCM MICROSYSTEMS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 77-0444317
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
SCM MICROSYSTEMS, INC.
160 KNOWLES DRIVE
LOS GATOS, CA 95032
(Address of principal executive offices)
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SHUTTLE TECHNOLOGY GROUP
UNAPPROVED SHARE OPTION SCHEME
(Full title of the plan)
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STEVEN HUMPHREYS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SCM MICROSYSTEMS, INC.
160 KNOWLES DRIVE
LOS GATOS, CA 95032
(408) 370-4888
(Name, address and telephone number of agent for service)
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Copy to:
KURT J. BERNEY, ESQ.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
(1) Represents the number of shares of the Registrant's Common Stock which may
be issued to the Registrant's employees in the form of stock options
pursuant to the Shuttle Technology Group Unapproved Share Option Scheme
(the "Scheme"). Pursuant to Rule 416(a) of the Securities Act of 1933, as
amended (the "Act"), this Registration Statement shall also cover any
additional shares of the Registrant's Common Stock that become issuable
under the aforementioned Scheme by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration that increases the number of Registrant's
outstanding shares of Common Stock.
(2) The Proposed Maximum Offering Price Per Share is calculated pursuant to
Rule 457(h) under the Act, and as such, is based upon the exercise price of
each outstanding option under the Scheme. The exercise price of the shares
subject to outstanding options under the Scheme is $17.84 per share.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 (the "Registration Statement")
is being filed for the purpose of registering 85,571 shares of Common Stock, par
value $.001 per share (the "Common Stock"), of SCM Microsystems, Inc., a
Delaware corporation (the "Registrant"), to be issued pursuant to the
Registrant's Shuttle Technology Group Unapproved Share Option Scheme (the
"Scheme").
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference into this Registration
Statement the following documents heretofore filed by the Registrant with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997, filed with the Commission pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) The Registrant's Registration Statement on Form S-3/A (File
No. 333-71915), as filed with the Commission on February 12,
1998;
(c) The Registrant's Quarterly Reports on Forms 10-Q for the
quarterly periods ended September 30, 1998, June 30, 1998,
and March 31, 1998, filed with the Commission pursuant to
Section 13(a) of the Exchange Act;
(d) The description of the Registrant's Common Stock to be offered
hereby contained in the Registrant's Registration Statement on
Form 8-A, filed with the Commission on October 7, 1997
pursuant to Section 12 of the Exchange Act;
(e) The Registrant's Current Reports on Forms 8-K, filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange
Act on June 3, 1998, June 18, 1998, as amended on August 12,
1998, November 18, 1998, as amended on January 19, 1999, and
February 5, 1999.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Registrant's Certificate of Incorporation, as amended and restated,
limits the liability of directors to the maximum extent permitted by Delaware
law. Delaware law provides that directors of a corporation will not be
personally liable for monetary damages for breach of their fiduciary duties as
directors except for liability arising out of: (i) a breach of their duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (iii) unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General Corporation Law;
or (iv) any transaction from which the director derived an improper personal
benefit.
The Registrant's charter documents provide that the Registrant shall
indemnify its officers, directors and agents to the fullest extent permitted by
law, including those circumstances where indemnification would otherwise be
discretionary. The Registrant believes that indemnification under its charter
documents covers at least negligence and gross negligence on the part of
indemnified parties. The Registrant has entered into indemnification agreements
with each of its directors and officers which may, in some cases, be broader
than the specific indemnification provisions contained in the Delaware General
Corporation Law. The indemnification agreements may require the Registrant,
among other things, to indemnify each director and officer against certain
liabilities that may arise by reason of their status or service as directors or
officers (other than liabilities arising from willful misconduct of a culpable
nature) and to advance such persons' expenses incurred as a result of any
proceeding against him or her as to which such person could be indemnified.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Shuttle Technology Group Unapproved Share Option Scheme
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See Registration Statement Signature Page)
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Item 9. Undertakings
The Registrant hereby undertakes:
(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 this Registration Statement or any material change to such
information in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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.
(4) 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 into 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.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Los Gatos, State of California, on February 26, 1999.
SCM Microsystems, Inc.
By: /s/ Steven Humphreys
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Steven Humphreys
President and Chief Executive Officer
(Principle Executive Officer)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Steven Humphreys and John G. Niedermaier,
jointly and severally, his attorneys-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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EXHIBIT INDEX
Exhibit
No. Description
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4.1 Shuttle Technology Group Unapproved Share Option Scheme
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See Registration Statement Signature Page)