<PAGE> 1
As filed with the Securities and Exchange Commission on February 6, 1998
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
SCM MICROSYSTEMS, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 77-044-4317
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
SCM MICROSYSTEMS, INC.
131 ALBRIGHT WAY
LOS GATOS, CA 95032
(Address of principal executive offices)
---------------------------
1997 STOCK PLAN
(Full title of the plan)
---------------------------
STEVEN HUMPHREYS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SCM MICROSYSTEMS, INC.
131 ALBRIGHT WAY
LOS GATOS, CA 95032
(408) 370-4888
(Name, address and telephone number of agent for service)
---------------------------
Copy to:
KENNETH M. SIEGEL, ESQ.
N. ANTHONY JEFFRIES, ESQ.
JAN-MARC VAN DER SCHEE, ESQ.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
---------------------------
================================================================================
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share(1) Offering Price(1) Registration Fee
- ----------------------------------- ------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
to be issued under 1997 Stock Plan 1,000,000 $ 14.01 $ 14,011,082.50 $ 4,133.27
=================================== =================== ==================== ==================== ===================
</TABLE>
(1) Estimated in part pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Act"), and in part pursuant to Rule 457(c) under the Act.
With respect to 809,500 shares subject to outstanding options to purchase
Common Stock under the Plan, the Proposed Maximum Offering Price Per Share
is equal to the weighted average exercise price of $9.16 per share pursuant
to Rule 457(h). With respect to 190,500 shares of Common Stock available for
future grant under the Plan, the estimated Proposed Maximum Offering Price
Per Share was estimated pursuant to Rule 457(c) whereby the per share price
is the average between the high and low price reported in the Nasdaq
National Market on January 30, 1998, which average was $34.625. The Proposed
Maximum Offering Price Per Share represents a weighted average of the
foregoing estimates calculated in accordance with Rules 457(c) and 457(h).
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This registration statement relates to 1,000,000 shares of Common Stock
par value $.001 per share (the "Common Stock") of SCM Microsystems, Inc., a
Delaware corporation (the "Registrant"), being registered for use under
Registrant's 1997 Stock Plan and its sub-plan, the 1997 Stock Option Plan for
French Employees (collectively known as the "Plan").
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference in this registration
statement the following documents heretofore filed with the Securities and
Exchange Commission (the "Commission"):
(a) The Registrant's final prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933 relating to the
Registration Statement on Form S-1, as amended (SEC File No.
333-29073), which was declared effective on October 7, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q dated November
12, 1997 pursuant to Section 13 or 15 of the Securities
Exchange Act of 1934 for the quarterly period ended September
30, 1997.
(c) The description of the Company's Common Stock to be offered
hereby which is contained in its Registration Statement on
Form 8-A filed October 7, 1997 pursuant to Section 12 of the
Securities Exchange Act of 1934.
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 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 in 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.
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
II-1
<PAGE> 4
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 Company's charter documents provide that the Company shall
indemnify its officers, directors and agents to the fullest extent permitted by
law, including those circumstances where indemnification would otherwise be
discretionary. The Company believes that indemnification under its charter
documents covers at least negligence and gross negligence on the part of
indemnified parties. The Company 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 Company, 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 1997 Stock Plan and Form of Agreement
*4.2 1997 Stock Option Plan for French Employees
5.1 Opinion of Counsel as to Legality of Securities Being
Registered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see registration statement signature page)
- ----------
*Included by Reference. See Form S-1, declared effective by the SEC on
October 7, 1997 (Registration Statement No. 333-29073)
Item 9. Undertakings The undersigned 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 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 of 1933, 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.
II-2
<PAGE> 5
(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 of 1933, 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 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.
(5) That, insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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.
II-3
<PAGE> 6
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 6, 1998.
SCM Microsystems, Inc.
By: /s/ Steven Humphreys
-------------------------------------
Steven Humphreys
President and Chief Executive Officer
(Principle Executive Officer)
II-4
<PAGE> 7
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, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------------------------------------- ----------------------------------------------------- ----------------
<S> <C> <C>
/s/ STEVEN HUMPHREYS President and Chief Executive Officer February 6, 1998
- -------------------------------------- (Principal Executive Officer) and
Steven Humphreys Director
/s/ JOHN G. NIEDERMAIER Vice President, Finance, and Chief February 6, 1998
- -------------------------------------- Financial Officer
John G. Niedermaier
/s/ ROBERT SCHNEIDER Chairman of the Board February 6, 1998
- --------------------------------------
Robert Schneider
/s/ BERND MEIER Chief Operations Officer and Director February 6, 1998
- --------------------------------------
Bernd Meier
/s/ FRIEDRICH BORNIKOEL Director February 6, 1998
- --------------------------------------
Friedrich Bornikoel
/s/ BRUCE GRAHAM Director February 6, 1998
- --------------------------------------
Bruce Graham
/s/ RANDY LUNN Director February 6, 1998
- --------------------------------------
Randy Lunn
/s/ POH CHUAN NG Director February 6, 1998
- --------------------------------------
Poh Chuan Ng
/s/ ANDY VOUGHT Director February 6, 1998
- --------------------------------------
Andy Vought
</TABLE>
<PAGE> 8
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
5.1 Opinion of Counsel as to Legality of Securities
Being Registered
23.1 Consent of Independent Accountants
</TABLE>
<PAGE> 1
EXHIBIT 5.1
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
TELEPHONE 415-493-9300 FACSIMILE 415-493-6811
WWW.WSGR.COM
February 6, 1998
SCM Microsystems, Inc.
131 Albright Way
Los Gatos, CA 95032
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about February 6, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,000,000 shares of your Common Stock
reserved for issuance under the 1997 Stock Plan (the "Plan"). As your legal
counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and issuance
of such Common Stock under the Plan.
It is our opinion that, when issued and sold in the manner referred to in
the Plan and pursuant to the agreements which accompany the Plan, the Common
Stock issued and sold thereby will be legally and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in any
abbreviated registration statement filed pursuant to Item E under the general
instructions to Form S-8 under the Securities Act of 1933 with respect to the
Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
SCM Microsystems, Inc.:
We consent to incorporation by reference in the Registration Statement dated
February 6, 1998, on Form S-8 relating to the 1997 Stock Plan of SCM
Microsystems, Inc. of our report dated March 31, 1997, except as to Note 10,
which is as of September 5, 1997, relating to the consolidated balance sheets of
SCM Microsystems, Inc. and subsidiaries as of December 31, 1995 and 1996, and
the related consolidated statements of operations, stockholder's equity
(deficit) and cash flows for each of the years in the three-year period ended
December 31, 1996, which report appears in the Registration Statement (No.
333-29073) on Form S-1 of SCM Microsystems, Inc.
/s/ KPMG Peat Marwick LLP
Palo Alto, California
February 6, 1998
