<PAGE> 1
As filed with the Securities and Exchange Commission on February 26, 1999
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.
160 KNOWLES DRIVE
LOS GATOS, CA 95032
(Address of principal executive offices)
---------------------------
SHUTTLE TECHNOLOGY GROUP
UNAPPROVED SHARE OPTION SCHEME
(Full title of the plan)
---------------------------
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)
---------------------------
Copy to:
KURT J. BERNEY, 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(1) Per Share(2) Offering Price Registration Fee
- ------------------------------------ ------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock, $0.001 par value
to be issued under the Shuttle
Technology Group Unapproved
Share Option Scheme 85,571 $17.84 $1,526,586.64 $424.39
Total $1,526,586.64 $424.39
===========================================================================================================================
</TABLE>
(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.
<PAGE> 3
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.
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 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)
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 February 26, 1999.
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, as amended,
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 February 26, 1999
/s/ JOHN G. NIEDERMAIER Vice President, Finance, and Chief February 26, 1999
- -------------------------------------- Financial Officer
John G. Niedermaier
/s/ ROBERT SCHNEIDER February 26, 1999
- -------------------------------------- Chairman of the Board
Robert Schneider
/s/ BERND MEIER Chief Operations Officer and Director February 26, 1999
- --------------------------------------
Bernd Meier
/s/ FRIEDRICH BORNIKOEL Director February 26, 1999
- --------------------------------------
Friedrich Bornikoel
/s/ RANDALL LUNN Director February 26, 1998
- -------------------------------------
Randall Lunn
/s/ POH CHUAN NG Director February 26, 1999
- --------------------------------------
Poh Chuan Ng
/s/ ANDY VOUGHT Director February 26, 1999
- --------------------------------------
Andy Vought
/s/ OYSTEIN LARSEN Director February 26, 1999
- --------------------------------------
Oystein Larsen
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
Exhibit
No. Description
------- ------------
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)
<PAGE> 1
Exhibit 4.1
RULES
of the
SHUTTLE TECHNOLOGY GROUP LIMITED
UNAPPROVED EXECUTIVE SHARE OPTION SCHEME
Norton Rose
London
<PAGE> 2
SHUTTLE TECHNOLOGY GROUP LIMITED
UNAPPROVED EXECUTIVE SHARE OPTION SCHEME
1 DEFINITIONS AND INTERPRETATION
In this Scheme, the following words and expressions shall, where the
context so permits, have the following meanings:
"ACQUIRER" has the meaning in Rule 9.6
"ACQUISITION PRICE" means the price at which each Share subject to an
Option may be acquired on the exercise of that
Option, being (subject to Rule 10) such price as
the Directors may in their absolute discretion
determine, but, if Shares are to be subscribed,
not less than the nominal or par value of a Share;
"AUDITORS" means the auditors for the time being of the
Company;
"THE COMPANY" means Shuttle Technology Group Limited registered
in England under no. 2764412 or, if Rule 9.6 has
applied and the context so requires to ensure the
proper operation of this Scheme, the Acquirer;
"CONTROL" means, in relation to a body corporate, the power
of a person to secure:
(a) by means of the holding of shares or the
possession of voting rights in or in relation
to that or any other body corporate; or
(b) by virtue of any powers conferred by the
articles of association or other document
regulating that or any other body corporate.
that the affairs of the body corporate are
conducted in accordance with the wishes of that
person;
"DATE OF GRANT" means, in relation to any Option, the date on
which the Option is, was or is to be granted;
<PAGE> 3
3
"DIRECTORS" means the Board of Directors for the time being of
the Company or a duly authorised committee
thereof;
"ELIGIBLE EMPLOYEE" means any employee of a Participating Company;
"OPTION" means a right to acquire Shares pursuant to this
Scheme, including where Rule 9.6 has applied, an
option over Qualifying Shares;
"OPTIONHOLDER" means an Eligible Employee to whom an Option has
been granted under this Scheme;
"PARTICIPATING COMPANY" means the Company, Shuttle Technology (India)
Private Limited, Shuttle Technology Research
Private Limited and any other company which is for
the time being nominated by the Directors to be a
Participating Company being:
(a) a company of which the Company has control;
or
(b) a company which is under the Control of two
persons, one of them being the Company;
"QUALIFYING SHARE" has the meaning in Rule 9.6;
"THIS SCHEME" means the Shuttle Technology Group Limited
Unapproved Executive Share Option Scheme, as from
time to time amended;
"SHARE" means an ordinary share in the capital of the
Company or, where Rule 9.6 has applied, a
Qualifying Share;
"SUBSISTING OPTION" means an Option which has neither lapsed nor been
exercised.
References to any statutory provision are to that provision as amended or
re-enacted from time to time, and, unless the context otherwise requires,
words in the singular shall include the plural and vice versa, and words
importing the masculine gender shall include the feminine and vice versa.
2 GRANT OF OPTIONS
2.1 The Directors may at any time, if in their absolute discretion they
think fit, grant an Option to an Eligible Employee.
<PAGE> 4
4
2.2 Each Eligible Employee to whom an Option is granted may by notice in
writing within 30 days of the Date of Grant disclaim in whole or in
part his rights under the Option in which event such Option (or part
thereof, as the case may be) shall be treated for all purposes as
never having been granted.
2.3 Subject to the right of a deceased Optionholder's personal
representatives to exercise an Option in accordance with Rule 6.5,
every Option shall be personal to the Eligible Employee to whom it is
granted and shall not be capable of being transferred, assigned or
charged.
3 OPTION CERTIFICATES
3.1 As soon as is practicable after having granted an Option to an
Eligible Employee, the Directors shall issue to him in duplicate an
Option certificate under seal (or in such other manner as shall take
effect as a Deed of the Company) in respect of such Option.
3.2 The Option certificate shall be in such form as the Directors shall
determine from time to time and shall state:
(a) the Date of Grant of the Option;
(b) the number and class of Shares subject to the Option;
(c) the Acquisition Price payable for each Share under the Option;
(d) any date or dates determined by the Directors in accordance with
Rule 4.1(a) upon which the Option is first exercisable in whole
or in part and, where on any date only part is exercisable, the
number of Shares in respect of which such partial exercise may be
made;
(e) the performance targets or conditions, if any, to be satisfied as
a condition of exercise of the Option in accordance with Rule
4.1(b).
3.3 Each Eligible Employee to whom an Option is granted must sign the
duplicate copy of the Option certificate and return it to the Company
by such date as the Company shall specify in writing. If an Eligible
Employee fails to do so, he shall be deemed to have disclaimed the
Option in accordance with Rule 2.2.
4 CONDITIONS OF EXERCISE
4.1 When granting an Option, the Directors may, if in their absolute
discretion they think fit:
(a) determine any date or dates before the tenth anniversaries of its
Date of Grant on which the Option is first exercisable in whole
or in part, and,
<PAGE> 5
5
where on any date only part is exercisable, the number of Shares
in respect of which such partial exercise may be made; and/or
(b) grant the Option subject to such objective performance targets to
be satisfied as a condition of exercise as they may in their
absolute discretion determine.
4.2 If, after the Directors have determined any performance criteria to be
satisfied pursuant to Rule 4.1, events occur which cause the Directors
to consider that any of the existing targets or conditions have become
unfair or impractical, they may, in their discretion amend, relax or
waive such targets or conditions in such manner as they consider
appropriate. The Directors shall notify all relevant Optionholders in
writing of any amendment, relaxation or waiver of existing targets or
conditions made pursuant to this Rule 4.2.
4.3 The Directors shall notify each Optionholder in writing when any
targets or conditions to which the exercise of his Option is subject
(as amended, relaxed of waived pursuant to Rule 4.2) have been
satisfied or have become incapable of being satisfied.
5 SCHEME LIMIT
5.1 The maximum number of Shares which may be placed under option for
subscription under this Scheme shall not exceed 20% of the Company's
issued ordinary share capital from time to time.
5.2 For the purpose of the limit contained in Rule 5.1 any Shares
comprised in any option which has lapsed shall be disregarded for the
purpose of calculating the number of Shares under option.
6 RIGHTS OF EXERCISE OF OPTIONS
6.1 Save as provided in Rules 6.5, 6.6, 6.7 and 9, an Option may not be
exercised before one year from the Date of Grant. Unless separately
provided for in writing pursuant to Rule 4.1, an Option is exercisable
as follows:
(a) One-third 1/3rd of the number of Shares originally the
subject of the Option on the first anniversary of the Date
of Grant;
(b) One-thirty sixth (1/36) of the number of Shares originally
the subject of the Option each month following the first
anniversary of the Date of Grant.
<PAGE> 6
6
6.2 Save as provided in Rules 6.5, 6.6 (except 6.6(c) or (f)) and 9, an Option
may not be exercised before the date on which any conditions imposed in
accordance with Rule 4.1(b) (as amended, relaxed or waived pursuant to
Rule 4.2) have been satisfied.
6.3 An Option may not in any event be exercised after the tenth anniversary of
the Date of Grant and shall lapse on the tenth anniversary of its grant.
6.4 Save as provided in Rules 6.5, 6.6 and 9, an Option may only be exercised
by an Optionholder while he is an Eligible Employee.
6.5 An Option may be exercised by the personal representatives of a decreased
Optionholder during the period of one year following the date of death.
6.6 An Option may be exercised by an Optionholder within the period of six
months following the date on which be ceases to hold any office or
employment with a Participating Company on account of:-
(a) injury, ill-health or disability (evidenced to the satisfaction of
the Directors); or
(b) redundancy (within the meaning of the Employment Protection
(Consolidation) Act 1978); or
(c) retirement at contractual retirement age including late retirement; or
(d) the transfer of the undertaking or part-undertaking in which the
Optionholder is employed to a person other than a Participating
Company; or
(e) the company by which the Optionholder is employed ceasing to be a
Participating Company; or
(f) any other reason which the Directors consider reasonably justifies
the exercise of the Option.
6.7 If an Optionholder, while continuing to hold an office or employment with
a Participating Company, is to be transferred to work in another country
and the Directors are satisfied that as a result of that transfer either:-
(a) he will suffer a tax disadvantage upon exercising his Option; or
(b) he will become subject to restrictions on his ability to exercise his
Option or to deal in the Shares obtained upon exercise of his Option.
<PAGE> 7
7
the Optionholder may, subject to Rules 4 and 6.8, exercise all or any
of his Options in whole or in part in the period commencing three
months before and ending three months after the date of the transfer
(but so that any exercise before the date of transfer shall be
conditional upon such transfer taking place). Upon the expiry of such
period, all Options to the extent unexercised shall cease to be
exercisable under this Rule 6.7 but shall be exercisable at such
other time or times as may be permitted by these Rules.
6.8 An Option shall lapse on the occurrence of the earliest of the
following:
(a) the tenth anniversary of the Date of Grant; or
(b) the expiry of the period (if any) allowed for the satisfaction
of any condition of exercise specified in accordance with Rule
4.1(c) (as amended, relaxed or waived pursuant to Rule 4.2)
without such condition having been satisfied, or the date on
which it becomes apparent that any such condition has become
incapable of being satisfied; or
(c) the expiry of any of the applicable periods specified in Rules
6.5 and 6.6 and Rules 9.1, 9.2, 9.3 and 9.4, but where an
Optionholder dies while time is running under Rule 6.6, the
Option shall not lapse until the expiry of the period in Rule
6.5; or
(d) the date on which an Optionholder ceases to be an Eligible
Employee of any Participating Company for any reason other than
his death or one of the reasons specified in Rule 6.6; or
(e) the date on which a resolution is passed, or an order is made by
the Court, for the compulsory winding up of the Company; or
(f) the date on which the Optionholder becomes bankrupt or does or
omits to do anything as a result of which he is deprived of the
legal or beneficial ownership of the Option.
7. EXERCISE OF OPTIONS
7.1 Save as otherwise provided in this Scheme, an Option shall be
exercisable in whole or in part by notice in writing (in the form
prescribed by the Company) given by the Optionholder (or his personal
representatives, as the case may be) to the Company. The notice of
exercise of the Option shall be accompanied by the relevant Option
certificate and a remittance for the aggregate of the Acquisition
Prices payable.
7.2 Within 30 days of receipt of a notice of exercise, the Option
certificate and the appropriate remittance, the Directors shall allot
or procure the transfer of the
<PAGE> 8
8
Shares in respect of which the Option has been validly exercised and
shall issue a definitive certificate in respect of the Shares allotted
or transferred unless:-
(a) the Directors consider that such allotment or transfer would not
be lawful in the relevant jurisdiction; or
(b) if a Participating Company is obliged to account for tax or
national insurance contributions, or any similar duty or amount
(in any jurisdiction) for which the Optionholder in question is
liable by virtue of the exercise of the Option, either that or
any other Participating Company is able to withhold the
appropriate amount of tax or national insurance contribution or
any similar duty or amount from that Optionholder's remuneration
or has received payment from him of a corresponding amount.
7.3 Shares allotted under this Scheme shall rank pari passu in all
respects with the Shares of the same class for the time being in issue
save as regards any rights attaching to such Shares by reference to a
record date prior to the date of allotment and in the case of a
transfer of existing Shares the transferee shall not acquire any
rights attaching to such Shares by reference to a record date prior to
the date of such transfer.
8 CASH EQUIVALENT
8.1 Where an Option granted under the Scheme has been exercised by any
person in respect of any number of Shares and those Shares have not
yet been allotted or transferred to him in accordance with Rule 7.2
above, the Directors may determine that, in substitution for his right
to acquire such number of those Shares as the Directors may decide,
but in full and final satisfaction of such right, he shall be paid by
way of additional emoluments a sum equal to the cash equivalent of
that number of Shares.
8.2 For the purposes of this Rule 8, the cash equivalent of any Shares is
the amount by which the market value of those Shares at the date of
exercise of the Option exceeds the applicable Acquisition Price.
8.3 As soon as reasonably practicable after the Directors have determined
pursuant to Rule 8.1 that a person shall be paid the cash equivalent
in respect of his right to acquire any number of Shares:-
(a) the Company shall pay to him, or procure the payment to him of,
the relevant amount in cash; and
(b) if such person has already paid the Company the Acquisition Price
for those Shares, the Company shall return to him all amounts so
paid.
<PAGE> 9
9
8.4 Where any cash equivalent is payable in accordance with this Rule 8,
there shall be deducted from it such amounts on account of tax,
national insurance or similar liabilities as may be required by law
or as the Directors may reasonably consider to be necessary or
desirable.
9 TAKEOVERS LIQUIDATIONS AND FLOTATIONS
9.1 Subject to Rule 9.6, if any person obtains Control of the Company
whether as a result of:
(a) making a general offer to acquire the whole of the issued
ordinary share capital of the Company which is made on a
condition such that if it is satisfied the person making the
offer will have Control of the Company; or
(b) making a general offer to acquire all the shares in the Company
which are of the same class as the Shares; or
(c) acquiring substantially the whole of the issued ordinary share
capital of the Company.
any Subsisting Option may be exercised immediately prior to and
conditionally upon such change of Control, or within one month of the
time when the person making the offer has obtained Control of the
Company and any condition subject to which the offer is made has been
satisfied. For the purposes of this Rule 9.1 a person shall be deemed
to have obtained Control of the Company if he and others acting in
concert with him have together obtained Control of it.
9.2 If, under section 425 of the Companies Act 1985, the Court sanctions a
compromise or arrangement proposed for the purposes of or in
connection with a scheme for the reconstruction of the Company or its
amalgamation with any other company or companies, then any Subsisting
Option may be exercised immediately prior to and conditionally upon
the Court sanctioning such compromise or arrangement, or within one
month of the Court sanctioning such compromise or arrangement and
shall thereafter lapse.
9.3 If any person becomes bound or entitled to acquire shares in the
Company under sections 428 to 430 of the Companies Act 1985 any
Subsisting Option may be exercised at any time when that person
remains so bound or entitled and shall thereafter lapse.
9.4 (a) If the Company passes a resolution for voluntary winding up, any
Subsisting Option may be exercised within one month of the
passing of the resolution and shall thereafter lapse;
<PAGE> 10
10
(b) Alternatively, if the Directors in their absolute discretion so
determine, in the event that the Company gives notice to its
shareholders of a meeting at which a resolution for the voluntary
winding up of the Company ("Winding Up Resolution") is to be
proposed the Company may also give notice to such Optionholders
as the Directors shall select and any Optionholders in receipt of
such notice may exercise their Subsisting Options prior to the
passing of the Winding Up Resolution, but conditionally on it
being passed, to the intent that they will be entitled to share
in the assets of the Company with the other shareholders on the
same basis as if they had been the registered holders of the
relevant Shares immediately prior to the passing of the Winding
Up Resolution.
9.5 If the Shares are admitted to the Official List of The International
Stock Exchange of the United Kingdom and the Republic of Ireland
Limited or if permission is granted for the Shares to be dealt in on
the Alternative Investment Market or on any other market supervised by
any regulatory authority, such admission or permission shall be
treated as if it resulted in a person obtaining Control of the
Company, and Rule 6.1 shall apply accordingly.
9.6 This Rule applies where a person or persons obtain Control of the
Company and substantially the whole of the consideration given by such
person in order to obtain such Control consists of shares or stock in
another company (the "Acquirer"), which shares or stock are dealt in
on a market supervised by a regulatory authority ("Qualifying Shares")
("the Transaction"). If within one month following the date on which
the Acquirer obtains such Control, the Acquirer makes an offer ("the
Rollover Offer") to each of the Optionholders on terms that if they
release their Options, they will be granted options ("New Options")
over a number of Qualifying Shares of the Acquirer equal to the number
of such Qualifying Shares which the Optionholder would have obtained
in the Transaction if he or she had exercised the Option in full and
been a shareholder in the Company in respect of the number of shares
the subject of the Option at the time the Acquirer obtained Control,
the following shall apply:
(a) subject to (f) below, Rule 9.1 shall not apply in relation to
the Transaction
(b) each Optionholder shall have the right to accept the Rollover
Offer within one month after it is made
(c) if any Optionholder does not so accept, his Option shall lapse on
the expiry of one month after the Rollover Offer is made
(d) the New Option shall be on the terms of this Scheme
<PAGE> 11
11
(e) the Acquisition Price per Qualifying Share shall be the
aggregate Acquisition Price under the original Option
divided by the number of Qualifying Shares the subject of
the New Option
(f) the New Option shall be exercisable as set out in Rule 6.1.
(g) reissued Option Certificates shall be issued in respect of
New Options
10 VARIATION OF SHARE CAPITAL
10.1 In the event of any capitalisation, consolidation, sub-division or
reduction of the share capital of the Company and in respect of any
discount element in any rights issue or any other variation in the
share capital of the Company:
(a) the number of Shares comprised in an Option;
(b) their Acquisition Price;
(c) where an Option has been exercised but no Shares have been
allotted or transferred in satisfaction of such exercise, the
number of Shares to be so allotted or transferred and their
Acquisition Price;
may be varied in such manner as the Directors shall determine and
(save in the event of a capitalisation) the Auditors shall confirm in
writing to be in their opinion fair and reasonable, provided that no
variation shall be made which would result in the Acquisition Price
for an allotted Share or Qualifying Share being less than its nominal
or par value.
10.2 The Directors may take such steps as they consider necessary to notify
Optionholders of any adjustment made under Rule 10.1 and to call in,
cancel, endorse, issue or re-issue any Option certificate consequent
upon such adjustment.
11 ADMINISTRATION
11.1 The Directors shall have power from time to time to make and vary such
regulations (not being inconsistent with this Scheme) for the
implementation and administration of this Scheme as they think fit.
<PAGE> 12
12
11.2 The decision of the Directors shall be final and binding in all
matters relating to this Scheme (other than in the case of matters
to be determined or confirmed by the Auditors in accordance with
this Scheme).
11.3 The costs of establishing and administering this Scheme shall be
borne by the Company.
11.4 The Company shall not be obliged to provide Eligible Employees or
Optionholders with copies of any notices circulars or other
documents sent to shareholders of the Company.
12 AMENDMENTS
12.1 The Rules may be amended in any respect by resolution of the
Directors provided that where any alteration would abrogate or
adversely affect the subsisting rights of Optionholders it will not
be effective unless such alteration is made with the consent in
writing of such number of Optionholders as hold Options over not
less than seventy five per cent (75%) of the Shares or Qualifying
Shares which would be issued or transferred if all Subsisting
Options were exercised.
12.2 Written notice of any amendment shall be given to all Optionholders.
13 GENERAL
13.1 This Scheme shall commence upon the date of its adoption by the
Directors and shall (unless previously terminated by a resolution of
the Directors or a resolution of the Company in General Meeting)
terminate upon the expiry of the period of ten years from such date.
Upon termination (however occurring) no further Options may be
granted but such termination shall be without prejudice to any
accrued rights in existence at the date hereof.
13.2 The Company will at all times keep available sufficient authorised
and unissued Shares, or shall ensure that sufficient Shares will be
available, to satisfy the exercise to the full extent still possible
of all Subsisting Options, taking account of any other obligations
of the Company to issue Shares.
13.3 In the event that the Directors decide to grant options over issued
Shares then the Company and/or any Participating Company may give or
procure such financial assistance (whether by way of loan, gift,
guarantee to a third party lender or otherwise) as the Directors
shall think fit to the trustee or trustees for the time being of any
employee share ownership trust established by the Company to
facilitate the acquisition by such trustee or trustees of the
relevant number of Shares, PROVIDED that any such financial
assistance shall only be given to the extent permitted by section
153 of the Companies Act of 1985.
<PAGE> 13
13.4 Notwithstanding any other provision of this Scheme:
(a) this Scheme shall not form part of any contract of employment
between any Participating Company and any employee of any such
company and the rights and obligations of any individual under the
terms of his office or employment with any Participating Company
shall not be affected by his participation in this Scheme or any
right which he may have to participate in it and this Scheme shall
afford such an individual no right to compensation or damages in
consequence of the termination of such office or employment for any
reason whatsoever:
(b) this Scheme shall not confer on any person any legal or equitable
rights (other than those constituting the Options themselves)
against any Participating Company directly or indirectly, or give
rise to any cause of action at law or in equity against any
Participating Company; and
(c) no Optionholder shall be entitled to any compensation or damages
for any loss or potential loss which he may suffer by reason of
being unable to exercise an Option in consequence of the loss or
termination of his office or employment with any Participating
Company for any reason whatsoever.
13.5 Save as otherwise provided in this Scheme any notice or communication to
be given by the Company to any Eligible Employee or Optionholder may be
personally delivered or sent by ordinary post to his last known address
and where a notice or communication is sent by post it shall be deemed
to have been received 48 hours after the same was put into the post
properly addressed and stamped. Share certificates and other
communications sent by post will be sent at the risk of the Eligible
Employee or Optionholder concerned and the Company shall have no
liability whatsoever to any such person in respect of any notification,
document, share certificate or other communication so given, sent or
made.
13.6 Any notice to be given to the Company shall be delivered or sent to the
Company at its registered office and shall be effective upon receipt.
13.7 This Scheme and all Options granted under it shall be governed by and
construed in accordance with English law.
<PAGE> 14
Shuttle Technology Group Limited Unapproved Executive Share Option Scheme
("the Scheme")
The Company is considering granting you an Option under the terms of the Scheme
and using the enclosed Option Deed. The Company may be obliged to account for
tax or employee's national insurance under PAYE system in respect of the
exercise of any option granted to you under the Scheme, or in certain other
events. As a condition of your being considered for the grant of an Option
under the Scheme, you are required to sign and return the enclosed letter,
enabling the Company to be reimbursed for the amount of this PAYE on exercise.
The Company will send you an Option Certificate shortly after granting your
Option.
<PAGE> 15
SHUTTLE TECHNOLOGY GROUP LIMITED
This Deed is made on 1998 by Shuttle Technology Group Limited
registered in England and Wales (No. 2764412) whose office is situated at
Shuttle House, 8 Ashville Way, Wokingham, Berkshire RG42 2PL (the "Company").
WHEREAS:
A The Company has established the Shuttle Technology Group Limited Unapproved
Executive Share Option Scheme (the "Scheme") for the benefit of its
directors and employees and directors and the employees of its subsidiaries
and associates; and
B The Company now wishes to grant an option to of (the
"Employee") whom the Company believes to satisfy the conditions to be an
"Eligible Employee" for the purposes of the Scheme.
NOW THIS DEED WITNESSETH AS FOLLOWS:
1 The Company hereby grants an option (the "Option") by way of this Deed to
the Employee, on and subject to the terms of the Scheme.
2 The Option is to acquire for cash the number of Shares stated in Column (1)
of the schedule to this Deed at the price per Share stated in Column (2) of
the schedule, the total exercise price being stated in Column (3) of the
schedule.
3 No consideration is payable by the Employee for the grant of the Option.
4 (a) This clause 4(a) applies where:
(i) the Company or any other person ("the Indemnified Party") is
advised that it is required to account for, or on account of,
income tax under sections 203-203L. Income and Corporation Taxes
Act 1988 (as amended from time to time) and any regulations made
thereunder or employees' national insurance contributions under
paragraph 3 of Schedule 1 to the Social Security Contributions
and Benefits Act 1992 (as amended from time to time) and any
regulations made thereunder and/or by reason of any Inland
Revenue or Department of Social Security practice then
applicable; and
(ii) the obligation to account for such tax or taxes arises as a
consequence of the grant of the Option, exercise (in whole or in
part) of the Option or the transfer or issue of Shares to the
Employee following exercise of the Option.
1
<PAGE> 16
(b) Where clause 4(a) applies, the Employee shall forthwith on
demand being made, pay to the Indemnified Party an amount equal
to such tax or taxes or contribution to the extent that the
Indemnified Party cannot obtain reimbursement of such tax, taxes
or contribution by deducting such amount in accordance with
regulation 7 of the Income Tax (Employments) (Notional Payments)
Regulations 1994 ("the Shortfall"). Until full payment of the
Shortfall has been made in accordance with this clause 4(b) the
Company shall, notwithstanding Rule 7.2, be entitled not to
allot Shares or to withhold delivery of the stock certificate or
other document of title in respect of the Shares acquired
following exercise of the Option, and in addition if payment has
not been made after allotment within 30 days of exercise:
(i) the Company shall be entitled to deduct and either retain
for itself or pay to the Indemnified Party amounts in
respect of the Shortfall from any installments of salary or
other amounts at any time thereafter owing from the Company
to the Employee; and/or
(ii) the Company shall be entitled to dispose (on behalf of the
Employee) of all or some of the Shares (which would
otherwise be transferred to the Employee in satisfaction
of the exercise of the Option) and, where it is the
Indemnified Party, retain the proceeds of disposal or, if
it is not the Indemnified Party, pay such amount to the
Company;
PROVIDED THAT:
the amount so deducted or the proceeds of disposal shall not, after
deduction of the costs and expenses of disposal (which the Company is
hereby authorized to pay on the Employee's behalf), exceed the
Shortfall; and
in disposing of such Shares, the Company shall not be liable for any
loss whatsoever arising from anything done or omitted in conformity
with any advice given or purporting to have been given by any
investment adviser or manager appointed or employed by the Company in
connection with the disposal of such Shares.
(c) It is hereby recorded that the Employee has consented in accordance
with section 13(1)(a) Employment Rights Act 1996 to the deduction
from his salary or any other amounts due to him from the Company in
the month (for PAYE purposes) which includes the date of grant or
exercise of the Option or satisfaction of the performance conditions
or transfer of shares (as the case may be) or any one or more of the
following months (for PAYE purposes) of amounts in respect of
employee's national insurance contributions or income tax under
sections 203-203L Income and Corporation Taxes Act 1988 for which the
Indemnified Party is liable to account as referred to in clause 4 and
for
2
<PAGE> 17
which the indemnified Party will seek reimbursement from the Company.
Signed as a Deed and Delivered
by Shuttle Technology Group Limited
in the presence of:
- -----------------------------------
Director
- -----------------------------------
Director/Secretary
3
<PAGE> 18
The Schedule
Particulars of the Option
<TABLE>
<CAPTION>
(1) (2) (3) (4)
Date of Grant No. of Shares Acquisition Price Total Acquisition
comprised in the per Share Price
Option
<S> <C> <C> <C>
</TABLE>
It is hereby certified that the grant of this option does not constitute a
transaction forming part of a larger transaction or series of transactions in
respect of which the amount or value, or aggregate amount or value of the
consideration exceeds L60,000.
4
<PAGE> 19
NOTICE OF EXERCISE
I hereby exercise the Option evidenced by this certificate in respect of _____
Shares the subject thereof. I enclose my cheque payable to the Company for
L_____, being the Acquisition Price payable in respect of such number of Shares.
Signed _______________
Dated _______________
THE OPTION MAY NOT BE SOLD, TRANSFERRED, CHARGED, MORTGAGED, ENCUMBERED AND NO
THIRD PARTY MAY BE GRANTED ANY INTEREST OVER IT.
5
<PAGE> 20
To: The Company Secretary
Shuttle Technology Group Limited
SHUTTLE TECHNOLOGY GROUP LIMITED UNAPPROVED EXECUTIVE SHARE OPTION SCHEME
("THE SCHEME")
I have read your letter of 1998 and understand that my participation
in the Scheme is conditional on my signing this letter.
By signing this letter, I agree:
(a) to make payments referred to in clause 4 of the draft Option Deed enclosed
with your letter;
(b) to permit the Company not to allot stock, or to withhold delivery of any
stock certificate in respect of stock acquired following the exercise of
an Option;
(c) to permit the Company or others to deduct from any amount of salary or
other amount as contemplated by clause 4(b)(i) of the draft Option Deed;
(d) to appoint the Company as my agent to dispose of some or all of the stock
as contemplated by clause 4(b)(ii) of the draft Option Deed on the terms
stated therein;
(e) to give the consent set out in clause 4(c) of the draft Option Deed.
- ------------------------
<PAGE> 1
EXHIBIT 5.1
February 26, 1999
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 26, 1999
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 85,571 shares of
your Common Stock reserved for issuance under your Shuttle Technology Group
Unapproved Share Option Scheme (the "Scheme"). 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 Scheme and pursuant to the agreements which accompany the Scheme, 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 the incorporation herein by reference in the Registration
Statement on Form S-8 dated February 26, 1999, of SCM Microsystems, Inc.
("SCM"), relating to the Shuttle Technology Group Unapproved Share Option
Scheme, of our reports dated February 13, 1998, relating to the consolidated
balance sheets of SCM 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,
and related schedule, which reports are incorporated by reference in the
December 31, 1997, annual report on Form 10-K of SCM. We also consent to the
incorporation herein by reference of our report dated January 11, 1999, relating
to the supplemental consolidated balance sheets of SCM as of December 31, 1996
and 1997, and the related supplemental 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 is included in the
Registration Statement on Form S-3/A filed by the Company on February 12, 1999.
The supplemental consolidated financial statements referred to above give
retroactive effect to SCM's pooling of interests with Shuttle Technology Group
Limited.
KPMG LLP
Mountain View, California
February 24, 1999
