<PAGE> 1
As filed with the Securities and Exchange Commission on October 30, 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 77-0444317
(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.
MICHAEL S. RINGLER, 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 685,950 $35.42 $24,296,349 $6,754.39
===========================================================================================================================
</TABLE>
(1) Estimated in part pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act"), and in part pursuant to Rule 457(c) under
the Securities Act. With respect to 488,333 shares subject to outstanding
options to purchase Common Stock under the Plan, the Proposed Maximum
Offering Price Per Share is equal to the exercise price of $30.00 per share
pursuant to Rule 457(h) under the Securities Act. With respect to 197,617
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) under the Securities Act whereby the per share price is the
average between the bid and asked price reported in the Nasdaq National
Market on October 27, 1998, which average was $48.813. 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) under the
Securities Act.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement on Form S-8 (this "Registration Statement")
is being filed for the purpose of registering an additional 685,950 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 1997 Stock Plan and its sub-plan, the 1997 Stock
Option Plan for French Employees (collectively known as the "Plan"). The Common
Stock represents a 335,950 share annual increase pursuant to Section 3 of the
Plan and a 350,000 share increase approved by the board of directors and
stockholders of the Registrant. The Registrant's Registration Statement on Form
S-8 (Commission File No. 333-45789), previously filed with the Securities and
Exchange Commission (the "Commission") on February 6, 1998, relating to the Plan
is incorporated herein by reference.
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
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 Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1998 and June 30, 1998,
filed with the Commission pursuant to Section 13(a) of the
Exchange Act.
(c) 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.
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.
II-1
<PAGE> 4
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 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 Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See Registration Statement Signature Page)
----------
* Incorporated by reference from the Registrant's Registration
Statement on Form S-1 (Registration Statement No. 333-29073),
declared effective by the Commission on October 7, 1997.
II-2
<PAGE> 5
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.
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 October 30,
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
- -------------------------------------- (Principal Executive Officer) and
Steven Humphreys Director October 30, 1998
/s/ JOHN G. NIEDERMAIER Vice President, Finance, and Chief October 30, 1998
- -------------------------------------- Financial Officer
John G. Niedermaier
/s/ ROBERT SCHNEIDER October 30, 1998
- -------------------------------------- Chairman of the Board
Robert Schneider
/s/ BERND MEIER Chief Operations Officer and Director October 30, 1998
- --------------------------------------
Bernd Meier
/s/ FRIEDRICH BORNIKOEL Director October 30, 1998
- --------------------------------------
Friedrich Bornikoel
Director __________, 1998
- -------------------------------------
Randy Lunn
/s/ POH CHUAN NG Director October 30, 1998
- --------------------------------------
Poh Chuan Ng
/s/ ANDY VOUGHT Director October 23, 1998
- --------------------------------------
Andy Vought
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
Exhibit
No. Description
------- ------------
*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 Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (See Registration Statement Signature Page)
----------
* Incorporated by reference from the Registrant's Registration
Statement on Form S-1 (Registration Statement No. 333-29073),
declared effective by the Commission on October 7, 1997.
<PAGE> 1
EXHIBIT 5.1
October 30, 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 October 30, 1998
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 685,950 shares of
your Common Stock reserved for issuance under your 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 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 October 30, 1998, on Form S-8 relating to the 1997 Stock Plan of SCM
Microsystems, Inc. of our report dated February 13, 1998, relating to the
consolidated balance sheets of SCM Microsystems, Inc. and subsidiaries as of
December 31, 1996 and 1997, and the related consolidated statements of
operations, stockholders' equity (deficit) and cash flows for each of the years
in the three-year period ended December 31, 1997, which report appears in the
Annual Report on Form 10-K of SCM Microsystems, Inc. for the year ended December
31, 1997.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Mountain View, California
October 30, 1998
