<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 2, 2000
REGISTRATION NO. 333-_____________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
--------------------------
CERTICOM CORP.
(Exact name of Registrant as Specified in its Charter)
YUKON TERRITORY, CANADA 7371 NOT APPLICABLE
(Province or Other (Primary Standard (I.R.S. Employer
Jurisdiction of Incorporation Industrial Classification Identification Number)
or Organization) Code Number)
5520 EXPLORER DRIVE, MISSISSAUGA, ONTARIO L4W 5L1 CANADA (905) 507-4220
(Address and telephone number of Principal Executive Offices)
CERTICOM CORP. 1997 STOCK OPTION PLAN
CERTICOM CORP. STOCK OPTION PLAN
(Full title of the Plans)
--------------------------
RICHARD D. BROUNSTEIN
SENIOR VICE PRESIDENT FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY,
CERTICOM CORP., A DELAWARE CORPORATION AND WHOLLY OWNED SUBSIDIARY OF
THE REGISTRANT
25801 INDUSTRIAL BOULEVARD, HAYWARD, CALIFORNIA 94545
(Name and Address of Agent for Service)
(510) 780-5400
(Telephone number, including area code, of agent for service)
--------------------------
Copies to:
GREGORY T. DAVIDSON
GIBSON, DUNN & CRUTCHER LLP
1530 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 849-5300
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED PROPOSED
TO BE REGISTERED REGISTERED (1) MAXIMUM MAXIMUM
OFFERING PRICE AGGREGATE AMOUNT OF
PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Shares (3) 114,594 shares $9.69 $ 1,110,416 $ 294
- --------------------------------------------------------------------------------------------------------------
Common Shares (4) 2,721,984 shares (4) $ 76,915,279 $20,306
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Total: 2,836,578 shares --- $ 78,025,695 $20,600
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</TABLE>
(1) This Registration Statement shall also cover any additional Common
Shares which become issuable under the Certicom Corp. 1997 Stock Option
Plan and the Certicom Corp. Stock Option Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an
increase in the number of the outstanding Certicom Corp. Common Shares.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the maximum
offering price per share at which such options may be excercised.
(3) The Certicom Corp. Stock Option Plan authorizes the issuance of up to
1,000,000 Common Shares, 114,594 of which were subject to outstanding
options as of the date hereof that are exercisable at an average price
of $9.69 per share. No additional options will be issued under the
Certicom Corp. Stock Option Plan.
(4) The Certicom Corp. 1997 Stock Option Plan authorizes the issuance of up
to 3,000,000 Common Shares, 2,337,376 of which were subject to
outstanding options as of the date hereof that are exercisable at an
average exercise price of $24.11 per share, and 278,016 of which have
been previously issued. The remaining 384,608 Common Shares are subject
to future options issuances. The average of the high and low prices
per Common Share of Certicom Corp. on The Toronto Stock Exchange on
April 28, 2000 was $53.46.
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- --------------------------------------------------------------------------------
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PART I
Item 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
Item 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to
Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of the Registrant heretofore filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated in
this Registration Statement by reference:
(1) the Registrant's Registration Statement on Form F-10
(Registration No. 333-11586) filed on March 2, 2000, and all amendments and
supplements thereto.
(2) The description of our Common Shares, which is contained in our
Registration Statement filed under the Securities Exchange Act of 1934, as
amended, on Form 8-A, filed on March 14, 2000.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), prior to the filing of a post-
effective amendment which indicates that all securities offered hereunder have
been sold or which deregisters all such securities then 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 reports and documents.
Any document, and any statement contained in a document, incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in any other subsequently filed document that
also is incorporated or deemed to be incorporated by reference herein, modifies
or supersedes such document or statement. Any such document or statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement. Subject to the foregoing,
all information appearing in this Registration Statement is qualified in its
entirety by the information appearing in the documents incorporated by
reference.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Business Corporations Act (Yukon) (the "YBCA"), the
Registrant may indemnify a present or former director or officer of the
Registrant or person who acts or acted at the Registrant's request as a director
or officer of another body corporate of which the Registrant is or was a
shareholder or creditor, and his or her heirs and legal representatives:
<PAGE>
(a) against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably
incurred by him or her in respect of any civil, criminal or
administrative action or proceeding to which he or she is made a
party be reason of being or having been a director or officer of
the Registrant;
(b) with court approval, against all costs, charges and expenses
reasonably incurred by him or her in connection with an action
brought by or on behalf of the Registrant or body corporate to
procure a judgment in its favor, to which he or she is made a
party by reason of being or having been a director or officer
of the Registrant or body corporate; and
(c) in respect of all costs, charges and expenses reasonably
incurred by him or her in connection with the defense of any
civil, criminal or administrative action or proceeding to which
he or she is made a party by reason of having been a director
or officer of the Registrant or body corporate, if he or she
was substantially successful on the merits of his or her
defense of the action or proceeding;
PROVIDED, in all cases, such director or officer (i) acted honestly and in good
faith with a view to the best interests of the Registrant, and (ii) in the case
of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, such director or officer had reasonable grounds for believing
that his or her conduct was lawful.
The By-laws of the Registrant provide that the Registrant shall
indemnify every director or officer of the Registrant, every former director or
officer of the Registrant or a person who acts or acted at the Registrant's
request as a director or officer of a body corporate of which the Registrant is
or was a shareholder or creditor, and his or her heirs and legal representatives
to the extent permitted by YBCA.
The Company maintains insurance for the benefit of its directors and
officers against liability in their respective capacities as directors and
officers that covers, among other things, U.S. SEC claims, subject to certain
corporate deductibles. The annual premium payable by the Company in respect of
such insurance is approximately $504,000. The directors and officers are not
required to pay any premium in respect of the insurance. The policy contains
standard industry exclusions and no claims have been made thereunder to date.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 Certicom Corp. 1997 Stock Incentive Plan
4.2 Resolutions of the Option Committee of Certicom Corp.
4.3 Certicom Corp. Stock Option Plan
5 Opinion of Anton Campion MacDonald Oyler
23.1 Consent of Anton Campion MacDonald Oyler (included in
Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney. Reference is made to the signature
page hereto
Item 9. UNDERTAKINGS.
A. 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
2
<PAGE>
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, 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 upon the
termination of the Certicom Corp. 1997 Stock Option Plan and the Certicom Corp.
Stock Option Plan.
B. The undersigned Registrant hereby undertakes 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
C. Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
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
of 1933 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 Securities Act of
1933 and will be governed by the final adjudication of such issue.
3
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Hayward, State of California, on April 11, 2000
CERTICOM CORP.
By: /s/ Richard P. Dalmazzi
------------------------------------------
Richard P. Dalmazzi
President and Chief Executive Officer
4
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS
Each person whose signature appears below constitutes and appoints
Richard P. Dalmazzi and Richard D. Brounstein as his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof. This power of attorney may be
signed in several counterparts.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
indicated on the dates indicated.
SIGNATURE TITLE DATE
/s/ RICHARD P. DALMAZZI President, Chief Executive
- ---------------------------- Officer and Director April 11, 2000
Richard P. Dalmazzi Principal Executive Officer)
/s/ RICHARD D. BROUNSTEIN Senior Vice President Finance,
- ---------------------------- Chief Financial Officer and April 11, 2000
Richard D. Brounstein Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ BERNARD W. CROTTY
- ---------------------------- Director April 11, 2000
Bernard W. Crotty
Philip C. Deck
- ---------------------------- Director April 11, 2000
/s/ WILLIAM T. DODDS
- ---------------------------- Director April 6, 2000
William T. Dodds
/s/ ERLING RASMUSSEN
- ---------------------------- Director April 10, 2000
Erling E. Rasmussen
/s/ LOUIS E. RYAN
- ---------------------------- Director April 11, 2000
Louis E. Ryan
/s/ WILLIAM J. STEWART
- ---------------------------- Director April 7, 2000
William J. Stewart
- ---------------------------- Director April 11, 2000
Scott A. Vanstone
5
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the Authorized Representative has signed this Registration Statement on
Form S-8, solely in his capacity as the duly authorized representative of
Certicom Corp. in the United States in the City of Hayward, State of California
on April 11, 2000.
By: /s/ RICHARD D. BROUNSTEIN
--------------------------------------------
Richard D. Brounstein
Senior Vice President Finance,
Chief Financial Officer and Secretary
Certicom Corp., a Delaware corporation
6
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
4.1 Certicom Corp. 1997 Stock Option Plan
4.2 Resolutions of the Option Committee of Certicom Corp.
4.3 Certicom Corp. Stock Option Plan
5 Opinion of Anton Campion MacDonald Oyler
23.1 Consent of Anton Campion MacDonald Oyler (included in
Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on the signature page hereof)
<PAGE>
EX-4.1
CERTICOM CORP.
1997 STOCK OPTION PLAN
1. PURPOSE OF THE PLAN
The purpose of the Plan is to encourage directors, officers and
employees of Certicom Corp. (the "Corporation") or any of its subsidiaries and
other persons:
(a) to promote the interests, growth and development of the Corporation by
providing them with the opportunity through share options to acquire a
proprietary interest in the Corporation;
(b) to recognize the contribution of such directors, officers, employees
and other persons; and
(c) to encourage such directors, officers, employees and other persons to
acquire Common Shares of the Corporation.
2. DEFINITIONS
In this Plan:
(a) "Associate" has the meaning assigned by the Securities Act (Ontario),
as amended from time to time;
(b) "Board of Directors" means the board of directors of the Corporation;
(c) "Committee" means a committee appointed by the Board of Directors and
consisting of not less than three members of the Board of Directors to
administer the Plan. All references in the Plan to the Committee means
the Board of Directors if no Committee has been appointed;
(d) "Common Shares" means the Common Shares of the Corporation or, in the
event of an adjustment contemplated in Section 9 hereof, such other
securities to which an Eligible Person may be entitled upon the
exercise of an Option as a result of such adjustment;
(e) "Date of Grant" means the date an Eligible Person is granted an
Option;
(f) "Director" means a person occupying the position of director on the
Board of Directors;
(g) "Eligible Persons" means any Director or Employee or any other person
or corporation approved by the Committee;
<PAGE>
(h) "Employee" means an employee of the Corporation or its subsidiaries;
(i) "Exchange" means The Toronto Stock Exchange or, if the Common Shares
are not then listed and posted for trading on The Toronto Stock
Exchange, on such stock exchange on which such shares are listed and
posted for trading as may be selected for such purpose by the
Committee;
(j) "Exercise Date" means the date the Corporation receives from the
Eligible Person a completed Stock Option Purchase Form with payment
for the Option Shares being purchased;
(k) "Insider" means:
(i) an insider of the Corporation as defined by the Securities Act
(Ontario) as amended from time to time, other than a person who
falls within such definition solely by virtue of being a director
or senior officer of a subsidiary of the Corporation; and
(ii) an Associate of any person who is an Insider by virtue of clause
(i) of this definition;
(l) "Market Price" per Common Share at any date shall be the closing price
of the Common Shares on the Exchange (or, if the Common Shares are not
then listed and posted for trading on the Exchange, on such stock
exchange on which such shares are listed and posted for trading as may
be selected for such purpose by the Committee) on the trading day
immediately preceding the Date of Grant. In the event that the Common
Shares are not listed and posted for trading on any stock exchange,
the Market Price shall be determined by the Committee in its sole
discretion;
(m) "Option" means the right granted by the Corporation pursuant to the
Plan to purchase Common Shares;
(n) "Option Period" means the period set forth in Section 6 during which
an Eligible Person may purchase Option Shares;
(o) "Option Price" means the price per share at which an Eligible Person
may purchase Option Shares";
(p) "Option Shares" means the Common Shares of the Corporation which an
Eligible Person is entitled to purchase pursuant to an Option;
(q) "Outstanding Issue" means the number of Common Shares that are
outstanding immediately prior to any issuance of Options under the
Plan or any issuance of Option Shares, as the case may be, excluding
Option Shares issued pursuant to the Plan and all other plans or stock
option agreements to which the Corporation may be a party during the
preceding one year period;
(r) "Participants" means Eligible Persons to whom Options are granted
pursuant to the Plan and which remain unexercised; and
2
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(s) "Plan" means this Certicom Corp. 1997 Stock Option Plan.
3. ADMINISTRATION
(a) The Plan shall be administered by the Committee. The members of the
Committee shall serve at the pleasure of the Board and vacancies
occurring in the Committee shall be filled by the Board.
(b) A majority of the members of the Committee shall constitute a quorum
and all actions of the Committee shall be taken by a majority of the
members present at any meeting. Any action of the Committee may be
taken by an instrument or instruments in writing signed by all the
members of the Committee, and any actions so taken shall be as
effective as if it had been passed by a majority of the votes cast by
the members of the Committee present at a meeting of such members
duly called and held.
(c) The Committee shall have the power, where consistent with the general
purpose and intent of the Plan and subject to the specific provisions
of the Plan:
(i) to establish policies and to adopt rules and regulations for
carrying out the purposes, provisions and administration of the
Plan;
(ii) to interpret and construe the Plan and to determine all
questions arising out of the Plan and any Option granted
pursuant to the Plan, and any such interpretation,
construction or termination made by the Committee shall be
final, binding and conclusive for all purposes;
(iii) to determine to which Eligible Persons Options are to be
granted and to grant Options;
(iv) to determine the number of Common Shares covered by each
Option;
(v) to determine the Option Price;
(vi) to determine the time or times when Options will be granted and
exercisable;
(vii) to determine if the Common Shares that are subject to an Option
will be subject to any restrictions upon the exercise of such
Option; and
(viii) to prescribe the form of the instruments relating to the grant,
exercise and other terms of Option Shares.
3
<PAGE>
4. NUMBER OF OPTION SHARES
The aggregate number of Option Shares which may be issued hereunder
shall not exceed 3,000,000. Option Shares in respect of which Options are not
exercised prior to expiry in accordance with the terms of the Plan shall be
available for subsequent grants of Options under the Plan. The following
restrictions shall also apply to the Plan and to all other plans or stock
option agreements to which the Company may be a party:
(i) no Participant together with such Participant's Associates
shall be issued, within any one year period, a number of
Option Shares which exceeds 5% of the Outstanding Issue;
(ii) the number of Option Shares reserved for issuance pursuant to
Options to any one Participant shall not exceed 5% of the
Outstanding Issue; and
5. PRICE FOR OPTION SHARES
The Committee shall advise each Participant designated to participate in
the Plan of the number of Option Shares such Participant is entitled to
purchase and the Option Price at which the Option Shares may be purchased and
the Option Period. The Option Price at which the Option Shares may be
purchased under the Plan shall be fixed by the Committee based upon the
Market Price of the Common Shares at the Date of the Grant.
6. VESTING
(a) The limitation period or periods and the vesting period or periods
during which Options or a portion thereof vests and may be exercised
by the Participant shall be determined by the Committee and be
consistent with the provisions of the Plan provided, however, the
limitation period or periods for exercise and the vesting period or
periods may not exceed 10 years from the date of the granting of
Options.
(b) If no specific determination is made by the Committee with respect
to any of the following matters, each Option shall, subject to any
other specific provisions of the Plan, contain the following terms
and conditions:
(i) the period during which an Option shall be exercisable shall be
5 years from the date the Option is granted to the Eligible
Person; and
4
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(ii) the Participant may not take up and pay for any of the Common
Shares covered by the Option until the expiry of a 12-month
period following the date of the grant of the Option, and
thereafter, the Participant shall be entitled to take up and
pay for not more than 25% of the Common Shares covered by the
Option immediately following the expiry of such 12-month period
following the date of the grant of the Option, and a further
2.083333% of the Shares covered by the Option following the
expiry of each one-month period following the expiry of such
12-month period from the date of the grant of the Option;
provided, however, the Participant shall have the right, at any
time or from time to time during the remainder of the term of
the Option, to purchase such number of Common Shares subject to
the Option that were purchasable, but not purchased by him,
during any period.
7. PAYMENT
The Participant from time to time at any time during the Option Period,
may elect to purchase all or a portion of the Option Shares available for
purchase during the relevant Option Period by lump sum payment by delivering
to the Corporation at its registered office, a notice in writing which shall
specify the number of Option Shares the Participant desires to purchase and
shall be accompanied by payment in full of the purchase price for such Option
Shares. Payment can be made by cash, certified cheque, bank draft, money
order or the equivalent payable to the order of Certicom Corp.
8. CERTIFICATES
(a) Each Option granted hereunder shall be evidenced by a certificate,
substantially in the form of Schedule "A", issued by the Corporation
to each Participant specifying the number of Option Shares, the
Option Price and the Option Period.
(b) Upon exercise of an Option and payment in full of the purchase price
the Corporation shall cause to be delivered to the Participant within
a reasonable period of time a certificate or certificates in the name
of the Participant representing the number of Option Shares the
Participant has purchased.
9. ADJUSTMENT IN COMMON SHARES
(a) The number of Common Shares subject to the Plan, the number of
Common Shares available under Options granted and the Option Price
shall be adjusted automatically from time to time to reflect
adjustments in the number of Common Shares arising as a result of
subdivisions, stock dividends, consolidations or reclassifications
of the Common Shares or other relevant changes in the authorized or
issued capital of the Corporation. No fractional Common Shares may be
purchased or issued hereunder. If a Participant is entitled to
purchase a fraction of a Common Share pursuant to an Option, such
entitlement shall be rounded down to the nearest whole number.
(b) In the case of a proposed merger or amalgamation of the Corporation
with one or more other corporations, the making of a take-over bid
(as defined in the Securities Act (Ontario)) for any of the
outstanding Common Shares, the sale or distribution of all or
substantially all of the Corporation's assets or a proposed corporate
arrangement or reorganization, the Board of Directors may, in its
absolute discretion, determine the
5
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manner in which all unexercised Options granted under the Plan shall
be treated including, notwithstanding Section 16 hereof, changing the
Option Period.
10. TERMINATION
(a) Subject to the provisions of Section 10(d) hereof, in the event that
an Employee's employment with the Corporation or any of its
subsidiaries is terminated during the Option Period or a Director
shall cease to be a Director for any reason other than death or
cause, the Participant may elect to purchase all or a portion of the
remaining Option Shares that have vested at the time such employment
is terminated or of ceasing to be a Director at any time during the
90-day period following the date of termination of employment or
ceasing to be a director (but in no event, after the expiration of
the Option Period). For the purposes of the Plan, the transfer of the
Employee's employment to the Corporation or to any subsidiary of the
Corporation shall not be considered a termination of employment and
the Employee's rights under the Option shall be the same as if such
transfer had not occurred.
(b) Subject to the provisions of Section 10(d) hereof, in the event of
the termination of the relationship of a Participant with the
Corporation or any of its subsidiaries for cause prior to the expiry
of all outstanding Options granted to such Participant, all such
Options shall terminate forthwith without further notice to the
Participant.
(c) Subject to the provisions of Section 10(d) hereof, in the event the
Participant dies during the Option Period, the Participant's legal
representative will be permitted to exercise any previously
unexercised portion of an Option granted under the Plan prior to the
Participant's death and take delivery of all Option Shares previously
purchased but not delivered, at any time during the 180 day period
following the death of the Participant (but in no event after the
expiration of the Option Period).
(d) At any time before or after the relevant period set forth in
Sections 10(a), (b) or (c), the Committee may extend such period as
it applies to any former Participant, to a date which shall not be
later than the expiration of the Option Period.
11. TRANSFER AND ASSIGNMENT
The Participant's rights under Options granted under the Plan are not
assignable or transferable by the Participant or subject to any other
alienation, sale, pledge or encumbrance by such Participant during the
Participant's lifetime and therefore the Options are exercisable during the
Participant's lifetime only by the Participant. The obligations of each
Participant shall be binding on his or her heirs, executors and
administrators.
12. EMPLOYMENT AND BOARD POSITION NON-CONTRACTUAL
The granting of an Option to a Participant under the Plan does not
confer upon the Participant any right to continue in the employment of the
Corporation or any subsidiary of the Corporation or on the Board of
Directors, as the case may be, nor does it interfere in any way with the
right of the Participant or the Corporation to terminate the Participant's
employment at any time or shareholders right to elect directors.
6
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13. RIGHTS AS SHAREHOLDERS
The Participant shall not have any rights as a shareholder with respect
to Option Shares until full payment has been made to the Corporation and a
share certificate or share certificates have been duly issued.
14. NOTICES
All written notices to be given by the Participant to the Corporation
may be delivered personally or by registered mail, postage prepaid, addressed
as follows:
Certicom Corp.
200 Matheson Blvd.
Suite 103
Mississauga, Ontario
L5R 3L7
Attention: Secretary
Any notice given by the Participant pursuant to the terms of the Option
shall not be effective until actually received by the Corporation at the
above address. Any notice to be given to the Participant shall be
sufficiently given if delivered personally or by postage prepaid mail to the
last address of the Participant on the records of the Corporation and shall
be effective seven days after mailing.
15. CORPORATE ACTION
Nothing contained in the Plan or in the Option shall be construed so as
to prevent the Corporation or any subsidiary of the Corporation from taking
corporate action which is deemed by the Corporation or the subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan.
16. AMENDMENTS
The Board of Directors shall have the right, in its sole discretion, to
alter, amend or discontinue the Plan from time to time and at any time. No
such amendment or discontinuation, however, may, without the consent of the
Participant, alter or impair his rights or increase his obligations under the
Plan. Any amendment to the Plan will require the prior approval of the
Exchange and may require the approval of the Corporation's shareholders.
17. TERMINATION OF PLAN
Except as otherwise provided herein, options may be granted only within
the ten-year period from the date the Plan has been adopted by the Board of
Directors of the Corporation.
18. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of each provision
of the Plan shall be according to the laws of the Province of Ontario and the
laws of Canada applicable therein.
7
<PAGE>
19. GOVERNMENT REGULATIONS
The Corporation's obligation to issue and deliver Common Shares under
any Option is subject to:
(a) the satisfaction of all requirements under applicable securities law
in respect thereof and obtaining all regulatory approvals as the
Corporation shall determine to be necessary or advisable in
connection with the authorization, issuance or sale thereof;
(b) the admission of such Common Shares to listing on any stock exchange
on which Common Shares may then be listed; and
(c) the receipt from the Participant of such representations, agreements
and undertakings as to future dealings in such Common Shares as the
Corporation determines to be necessary or advisable in order to
safeguard against the violation of the securities law of any
jurisdiction.
In this connection, the Corporation shall take all reasonable steps to
obtain such approvals and registrations as may be necessary for the issuance
of such Common Shares in compliance with applicable securities law and for
the listing of such Common Shares on any stock exchange on which such Common
Shares are then listed.
20. APPROVALS
(a) The Plan shall be subject to acceptance by the Exchange and
compliance with all conditions imposed by the Exchange. Any Options
granted prior to such acceptance shall be conditional upon such
acceptance being given and any conditions complied with and no such
Options may be exercised unless such acceptance is given and such
conditions are complied with.
(b) The Plan shall also be subject to the approval of the shareholders of
the Corporation. Any Options granted prior to such approval shall be
conditional upon such approval being given and no such Options may be
exercised unless and until such approval is given.
8
<PAGE>
SCHEDULE "A" TO 1997 STOCK OPTION PLAN
CERTIFICATE
Date of Grant: -
Certificate No.: -
This Certificate is issued to - (the "Participant") pursuant to the 1997
Stock Option Plan of Certicom Corp. (the "Plan").
This Certificate evidences an option to purchase - Common Shares of Certicom
Corp. for the Option Price of $- per Optioned Share. The Option evidenced
hereby expires on -. The rights, privileges and obligations of the
Participant under this Option are subject to the provisions of the Plan.
CERTICOM CORP.
By: _____________________________________
Name:
Title:
9
<PAGE>
EX-4.2
RESOLUTION OF THE OPTION COMMITTEE
OF
CERTICOM CORP. (THE "CORPORATION")
The undersigned, being all of the members of the Option Committee of the
Corporation hereby sign the following resolution:
GRANT OF OPTIONS TO U.S. RESIDENT EMPLOYEES
WHEREAS, a large majority of the Corporation's employees are resident in
Canada, and the Corporation's 1997 Stock Option Plan (the "Plan") has
therefore been prepared primarily with a view to satisfying applicable
Canadian regulatory requirements;
WHEREAS, the Corporation or subsidiaries of the Corporation may have
U.S. resident employees from time to time;
WHEREAS, the Option Committee, pursuant to its authority under the
Corporation's 1997 Stock Option Plan, is desirous of establishing terms that
will apply to all grants of options under the Plan to U.S. resident employees
of the Corporation or subsidiaries of the Corporation ("U.S. Residents") so
as to establish the status of such options for U.S. regulatory purposes; and
WHEREAS, terms not otherwise defined herein shall have the meanings
ascribed thereto in the Plan.
NOW THEREFORE, BE IT RESOLVED that:
1. All Options granted under the Plan to U.S. Residents are intended
to qualify as incentive stock options ("Incentive Stock Options") under
Section 422 of the Internal Revenue Code (the "Code"), provided that to the
extent that the fair market value of shares with respect to which the
Incentive Stock Options (within the meaning of Section 422 of the Code, but
without regard to Section 422(d) of the Code) are exercisable by a grantee
for the first time during any calendar year exceeds U.S. $100,000, such
Options shall be treated as not qualifying under Section 422 of the Code and
shall be taxed as non-qualified options.
2. In the event that a U.S. Resident holds securities possessing more
than ten percent of the total combined voting power of all classes of shares
of the Corporation, any Options granted to such U.S. Resident under the Plan
shall expire not more than five years after the date of the grant and shall
have an Option Price of not less than 110% of the Market Price.
3. All grants of Options under the Plan are subject to the terms of
the Plan, and therefore the application of the following provisions of the
Plan to grants of Options under the Plan to U.S. Residents is hereby
confirmed:
(a) Section 4 of the Plan sets a fixed limit on the number of
Option Shares that may be issued pursuant to the exercise of Options granted
under the Plan;
<PAGE>
(b) Section 5 of the Plan provides that the Option Price in
respect of any Options granted under the Plan shall be the Market Price;
(c) Section 6(a) of the Plan provides that Options may not have a
term in excess of ten years; and
(d) Section 11 of the Plan provides that Options granted under the
Plan are not assignable or transferable.
4. A U.S. Resident Option holder may exercise Options on a net basis,
such that, without payment of any funds of any kind, the U.S. Resident Option
holder receives a number of Option Shares equal to the number of Option
Shares in respect of which the Option is being exercised times the quotient
of (x) the average of the Market Values on the twenty consecutive business
days prior to the date of exercise minus the Option Price, and (y) the
average of the Market Values on the twenty consecutive business days prior to
the date of exercise.
5. The officers of the Corporation be, and each of them acting alone
hereby is, authorized and empowered on behalf of the Corporation and in its
name to take or cause to be taken all actions and to execute and deliver all
such instruments that the officers of the Corporation, or any of them,
approve as necessary or desirable in connection with the foregoing
resolution, such approval to be conclusively evidenced by the taking of any
such action or the execution and delivery of any such instrument by an
officer of the Corporation.
Dated as of June 9, 1997.
/s/ Bernard W. Crotty
---------------------
Bernard W. Crotty
/s/ Philip C. Deck
---------------------
Philip C. Deck
/s/ Louis E. Ryan
---------------------
Louis E. Ryan
2
<PAGE>
EX-4.3
CERTICOM CORP.
STOCK OPTION PLAN
ARTICLE ONE - PURPOSE OF PLAN
1.1 The purpose of the Plan is to assist directors, officers and
employees of the Corporation and its Subsidiaries and other persons to
participate in the growth and development of the Corporation and its
Subsidiaries by providing such persons with the opportunity, through share
options, to acquire an increased proprietary interest in the Corporation.
ARTICLE TWO - DEFINED TERMS
2.1 DEFINITIONS
Where used herein, the following terms shall have the following
meanings, respectively:
(a) "BOARD" means the board of directors of the Corporation or, if
established and duly authorized to act, the Executive Committee of the
board of directors of the Corporation;
(b) "BUSINESS DAY" means any day, other than a Saturday or a Sunday, on
which The Toronto Stock Exchange is open for trading;
(c) "COMMITTEE" shall have the meaning attributed thereto in Article Three
hereof;
(d) "CORPORATION" means Certicom Corp., and includes any successor
corporation thereto;
(e) "ELIGIBLE PERSON" means any director or employee of the Corporation or
any Subsidiary or any other person or corporation approved by the
Committee;
(f) "MARKET PRICE" at any date in respect of Shares shall be the closing
price of such Shares on such stock exchange in Canada on which such
Shares are listed and posted for trading as may be selected for such
purpose on the last Business Day preceding the date on which the
Option is approved by the Committee. In the event that such Shares did
not trade on such Business Day, the Market Price shall be the average
of the bid and ask prices in respect of such Shares at the close of
trading on such date. In the event that such Shares are not listed and
posted for trading on any stock exchange, the Market Price in respect
thereof shall be determined by the Committee in its sole discretion;
(g) "OPTION" means an option to purchase Shares granted under the Plan;
(h) "OPTION PRICE" means the price per share at which Shares may be
purchase under the Option, as the same may be adjusted from time to
time in accordance with Article Eight hereof;
(i) "OPTIONEE" means a person to whom an Option has been granted;
(j) "PLAN" means the Certicom Corp. Stock Option Plan, as embodied herein,
as the same may be amended or varied from time to time;
<PAGE>
(k) "SHARES" means the common shares of the Corporation, or, in the event
of an adjustment contemplated by Article Eight hereof, such other
shares or securities to which an Optionee may be entitled upon the
exercise of an Option as a result of such adjustment; and
(l) "SUBSIDIARY" means any corporation that is a subsidiary of the
Corporation (as such term is defined in the Business Corporations Act
(Ontario), as such provision is from time to time amended, varied or
reenacted).
ARTICLE THREE - ADMINISTRATION OF THE PLAN
3.1 The Plan shall be administered by a committee (the "Committee")
appointed by the Board and consisting of not less than three members of the
Board. The members of the Committee shall serve at the pleasure of the Board
and vacancies occurring in the Committee shall be filled by the Board.
3.2 The Committee shall select one of its members as its Chairman and
shall hold its meetings at such time and place as it shall deem advisable. A
majority of the members of the Committee shall constitute a quorum and all
actions of the Committee shall be taken by a majority of the members present
at any meeting. Any action of the Committee may be taken by an instrument or
instruments in writing signed by all the members of the Committee, and any
actions so taken shall be as effective as if it had been passed by a majority
of the votes cast by the members of the Committee present at a meeting of
such members duly called and held.
3.3 The Committee shall have the power, where consistent with the
general purpose and intent of the Plan and subject to the specific provisions
of the Plan:
(a) to establish policies and to adopt rules and regulations for carrying
out the purposes, provisions and administration of the Plan;
(b) to interpret and construe the Plan and to determine all questions
arising out of the Plan and any Option granted pursuant to the Plan,
and any such interpretation, construction or termination made by the
Committee shall be final, binding and conclusive for all purposes;
(c) to determine to which Eligible Persons Options are granted and to
grant Options;
(d) to determine the number of Shares covered by each Option;
(e) to determine the Option Price;
(f) to determine the time or times when Options will be granted and
exercisable;
(g) to determine if the Shares that are subject to an Option will be
subject to any restrictions upon the exercise of such Option; and
(h) to prescribe the form of the instruments relating to the grant,
exercise and other terms of Options.
ARTICLE FOUR - SHARES SUBJECT TO PLAN
4.1 Options may be granted in respect of authorized and unissued
Shares, provided that the aggregate number of Shares of all classes reserved
for issuance under this Plan, subject to adjustment or
2
<PAGE>
increase of such number pursuant to the provisions of Article Eight hereof,
shall not exceed 1,000,000 Shares at the date of the grant of the Option, or
such greater number of Shares as may be determined by the Board and approved
by any other relevant regulatory authority. Shares in respect of which
Options are not exercised shall be available for subsequent Options under the
Plan. No fractional shares may be purchased or issued under the Plan.
ARTICLE FIVE - ELIGIBILITY, GRANT AND TERMS OF OPTIONS
5.1 Options may be granted to directors, officers or employees of the
Corporation or of any Subsidiary of the Corporation and any other person or
corporation approved by the Committee.
5.2 Options may be granted by the Corporation pursuant to
recommendations of the Committee provided and to the extent that such
recommendations are approved by the Board.
5.3 Subject as herein and as otherwise specifically provided for in
this Article Five, the number of Shares subject to each Option, the Option
Price, the expiration date of each Option, the extent to which each Option is
exercisable from time to time during the term of the Option and other terms
and conditions relating to each such Option shall be determined by the
Committee; provided, however, that if no specific determination is made by
the Committee with respect to any of the following matters, each Option
shall, subject to any other specific provisions of the Plan, contain the
following terms and conditions:
(a) the period during which an Option shall be exercisable shall be 5
years from the date the Option is granted to the Optionee; and
(b) the Optionee may take up and pay for not more than 33 1/3% of the
Shares covered by the Option during each 12-month period following the
first anniversary from the date of the grant of the Option; provided,
however, that if the number of Shares taken up under the Option during
any such 12-month period is less than 33 1/3% of the Shares covered by
the Option, the Optionee shall have the right, at any time or from
time to time during the remainder of the term of the Option, to
purchase such number of Shares subject to the Option that were
purchasable, but not purchased by him, during such 12 month period;
provided that in the event any person acquires 90% of the issued and
outstanding Shares, all Options shall become immediately exercisable
in full and the holders thereof may take up and pay for all such
Shares.
5.4 The Option Price on Shares that are subject of any Option shall in
no circumstances be lower than the Market Price of the Shares at the date of
the grant of the Option, less the maximum discount permitted under the
by-laws and policies of any stock exchange on which the shares are then
listed and posted for trading and in the event the shares are not then listed
and posted for trading on any stock exchange such maximum discount shall be
determined by the Board.
5.5 In no event may the term of an Option exceed 10 years from the date
of the grant of Option.
5.6 An Option is personal to the Optionee and is non-assignable.
ARTICLE SIX - TERMINATION OF EMPLOYMENT; DEATH
6.1 Subject to Section 6.2 hereof and to any express resolution passed
by the Committee with respect to an Option, an Option, and all rights to
purchase Shares pursuant thereto, shall expire and terminate immediately upon
the Optionee ceasing to be a director or employee of the Corporation or of
3
<PAGE>
any Subsidiary of the Corporation or ceasing to have such other relationship
(the "Relationship") with the Corporation specified by the Committee at the
time the Committee approved such person or corporation as an Eligible Person.
6.2 If, before the expiry of an Option in accordance with the terms
thereof, the employment of the Optionee by the Corporation or by any
Subsidiary of the Corporation shall terminate for any reason whatsoever other
than termination by the Corporation for cause, but including termination by
reason of the death of the Optionee, or if the Relationship of the Optionee
is terminated for any reason such Option may, subject to the terms thereof
and any other terms of the Plan, be exercised, if the Optionee is deceased,
by the legal personal representative(s) of the estate of the Optionee during
the first three months following the death of the Optionee, or if he is
alive, by the Optionee, at any time within 30 days of the date of termination
of the employment or Relationship of the Optionee (but in either case prior
to the expiry of the Option in accordance with the terms thereof), but only
to the extent that the Optionee was entitled to exercise such Option at the
date of the termination of his employment.
6.3 Options shall not be affected by any change of employment of the
Optionee or by the Optionee ceasing to be a director where the Optionee
continues to be employed by, or continues to be a director of, the
Corporation or any Subsidiary of the Corporation or by any change in the
Relationship.
ARTICLE SEVEN - EXERCISE OF OPTIONS
7.1 Subject to the provisions of the Plan, an Option may be exercised
from time to time by delivery to the Corporation at its registered office of
a written notice of exercise addressed to the Secretary of the Corporation
specifying the number of Shares to be purchased and the Option Price
applicable to such Shares. Certificates for such Shares shall be issued and
delivered to the Optionee within a reasonable time following the receipt of
such notice and payment.
7.2 Notwithstanding any of the provisions contained in the Plan or in
any Option, the Corporation's obligation to issue Shares to an Optionee
pursuant to the exercise of an Option shall be subject to:
(a) completion of such registration or other qualification of such Shares
or obtaining approval of such governmental authority as the
Corporation shall determine to be necessary or advisable in connection
with the authorization, issuance or sale thereof;
(b) the admission of such Shares to listing on any stock exchange on which
the Shares may then be listed; and
(c) the receipt from the Optionee of such representations, agreements and
undertakings, including as to future dealings is such Shares, as the
Corporation or its counsel determines to be necessary or advisable in
order to safeguard against the violation of the securities laws of any
jurisdiction.
In this connection the Corporation shall, to the extent necessary, take all
reasonable steps to obtain such approvals, registrations and qualifications
as may be necessary for the issuance of such Shares in compliance with
applicable securities laws and for the listing of such Shares on any stock
exchange on which the Shares are then listed.
ARTICLE EIGHT - CERTAIN ADJUSTMENTS
8.1 Appropriate adjustments in the number of Shares subject to the
Plan, and as regards Options granted or to be granted, in the number of
Shares optioned and in the Option Price, shall be made
4
<PAGE>
by the Board to give effect to adjustments in the number of Shares of the
Corporation resulting from subdivisions, consolidations or reclassifications
of the Shares of the Corporation, the payment of stock dividend by the
Corporation (other than dividends in the ordinary course) or other relevant
changes in the capital stock of the Corporation.
ARTICLE NINE - AMENDMENT OR DISCONTINUANCE OF PLAN
9.1 The Board may amend or discontinue the Plan at any time; provided,
however, that no such amendment may, without the consent of the Optionee,
alter or impair any Option previously granted to an Optionee under the Plan.
ARTICLE TEN - MISCELLANEOUS PROVISIONS
10.1 The holder of an Option shall not have any rights as a shareholder
of the Corporation with respect to any of the Shares covered by such Option
until such holder shall have exercised such Option in accordance with the
terms of the Plan (including tendering payment in full of the Option Price of
the Shares in respect of which the Option is being exercised) and the
Corporation shall issue such Shares to the Optionee in accordance with the
terms of the Plan in those circumstances.
10.2 Nothing in the Plan or any Option shall confer upon any Optionee
any right to continue in the employ or in any Relationship with the
Corporation or any Subsidiary of the Corporation or affect in any way the
right of the Corporation or any such Subsidiary to terminate his employment
or Relationship at any time; nor shall anything in the Plan or any Option be
deemed or construed to constitute an agreement, or an expression of intent,
on the part of the Corporation or any such Subsidiary to extend the
employment or Relationship of any Optionee beyond the time that he would
normally be retired pursuant to the provisions of any present or future
retirement plan of the Corporation or any Subsidiary or any present or future
retirement policy of the Corporation or any Subsidiary, or beyond the time at
which he would otherwise be retired pursuant to the provisions of any
contract of employment with the Corporation or any Subsidiary or otherwise
beyond the time agreed.
10.3 References herein to any gender include all genders.
ARTICLE ELEVEN - SHAREHOLDER APPROVAL
11.1 The Plan shall be subject to the approval of the shareholders of
the Corporation. Any Options granted prior to such approval shall be
conditional upon such approval being given and no such Options may be
exercised unless and until such approval and acceptance is given.
5
<PAGE>
EX-5
[LETTERHEAD OF ANTON CAMPION MACDONALD OYLER APPEARS HERE]
May 2, 2000
Certicom Corp.
5520 Explorer Drive
Mississauga, Ontario
L4W 5L1
Canada
Dear Sirs/Mesdames:
Re: Registration Statement on Form S-8
We have acted as Yukon Territory counsel for Certicom Corp., a
corporation organized under the laws of the Yukon Territory, Canada (the
"Company"), in connection with the registration of 2,836,578 shares of Common
Stock of the Company (the "Common Stock") issuable under the Certicom Corp.
1997 Stock Option Plan and the Certicom Corp. Stock Option Plan
(collectively, the "Plans"). In connection therewith, we have examined, among
other things, the Registration Statement on Form S-8 (the "Registration
Statement") proposed to be filed by the Company with the Securities and
Exchange Commission on or about May 2, 2000. We have also examined the
proceedings and other actions taken by the Company in connection with the
authorization of the Common Shares issuable under the Plans and such other
matters as we deemed necessary for purposes of rendering this opinion.
Based upon the foregoing, and in reliance thereon, we are of the
opinion, as of the date hereof, that the shares of Common Stock issuable
under the Plans, when issued, delivered and paid for in accordance with the
Plans and in the manner described in the Registration Statement, will be
validly issued, fully paid and nonassessable.
In rendering this opinion we express no opinion as to the laws of any
jurisdiction other than the laws of the Yukon Territory.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the General Rules and Regulations
of the Securities and Exchange Commission.
Yours truly,
ANTON CAMPION MACDONALD OYLER
/s/ Kenneth A. Oyler
<PAGE>
EX-23.2
CONSENT OF DELOITTE & TOUCHE LLP
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Certicom Corp. (the "Company") on Form S-8 of the following reports appearing in
the Prospectus on Form F-10:
- Our report dated June 7, 1999 (except for Note 14 which is as of March
1, 2000) on the consolidated financial statements of the Company
(expressed in U.S. dollars and presented in accordance with United
States generally accepted accounting principles ("US GAAP"))
- Our report dated September 24, 1999 on the financial statements of
Consensus Development Corporation
- Our report dated February 10, 2000 on the financial statements of
Trustpoint
We also consent to the incorporation by reference in this Registration Statement
of the Company on Form S-8 of the following reports included and incorporated by
reference in the Prospectus on Form F-10:
- Our report dated June 7, 1999 on the consolidated financial statements
of the Company for the year ended April 30, 1999 (expressed in
Canadian dollars and presented in accordance with Canadian generally
accepted accounting principles ("Canadian GAAP"))
- Our report dated June 7, 1999 (except for Note 15 which is as of March
1, 2000) on the consolidated financial statements of the Company for
the year ended April 30, 1999 (expressed in US dollars and presented
in accordance with Canadian GAAP)
We also consent to the incorporation by reference in this Registration Statement
of the Company on Form S-8 of our report dated June 7, 1999, included and
incorporated by reference in the Company's renewal Annual Information Form dated
June 7, 1999.
We also consent to the use in this Registration Statement of the Company on Form
S-8 of the following reports appearing in the Prospectus on Form F-10:
- Our compilation report dated March 1, 2000 on the pro forma condensed
consolidated statement of operations of the Company for the year ended
April 30, 1999 and nine months ended January 31, 2000 (expressed in US
dollars prepared in accordance with Canadian GAAP)
- Our compilation report dated March 1, 2000 on the pro forma condensed
consolidated statement of operations of the Company for the year ended
April 30, 1999 and nine months ended January 31, 2000 (expressed in US
dollars and prepared in accordance with US GAAP)
We also consent to the reference to us under the heading "Selected Financial
Data" in the Preliminary Prospectus on Form F-10.
/s/ Deloitte & Touche LLP
Chartered Accountants
Toronto, Ontario
May 2, 2000
