-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N+VWNZAPih3hMd1B7w9hnvLaiz6rxFtqSl18baSGFsG9vpqgeBMHyAoA7YeS6D8i pQl643Zh0pLwV7La3NUd9A== 0000891618-97-004014.txt : 19971006 0000891618-97-004014.hdr.sgml : 19971006 ACCESSION NUMBER: 0000891618-97-004014 CONFORMED SUBMISSION TYPE: S-1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19971003 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SCM MICROSYSTEMS INC CENTRAL INDEX KEY: 0001036044 STANDARD INDUSTRIAL CLASSIFICATION: COMPUTER PERIPHERAL EQUIPMENT, NEC [3577] IRS NUMBER: 770444317 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-1/A SEC ACT: SEC FILE NUMBER: 333-29073 FILM NUMBER: 97690577 BUSINESS ADDRESS: STREET 1: 131 ALBRIGHT WAY CITY: LOS GATOS STATE: CA ZIP: 95030 BUSINESS PHONE: 4083704888 MAIL ADDRESS: STREET 1: 131 ALBRIGHT WAY CITY: LOS GATOS STATE: CA ZIP: 95030 S-1/A 1 AMENDMENT NO. 3 TO FORM S-1 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 3, 1997 REGISTRATION NO. 333-29073 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ AMENDMENT NO. 3 TO FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ SCM MICROSYSTEMS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 3577 77-0444317 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
SCM MICROSYSTEMS, INC. 131 ALBRIGHT WAY LOS GATOS, CA 95032 (408) 370-4888 (NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) ------------------------ STEVEN HUMPHREYS PRESIDENT AND CHIEF EXECUTIVE OFFICER SCM MICROSYSTEMS, INC. 131 ALBRIGHT WAY LOS GATOS, CA 95032 (408) 370-4888 (NAME, ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ------------------------ COPIES TO: JEFFREY D. SAPER, ESQ. MICHAEL S. IMMORDINO, ESQ. KENNETH M. SIEGEL, ESQ. KARL A. ROESSNER, ESQ. N. ANTHONY JEFFRIES, ESQ. DAVID M. DETWEILER, ESQ. JAN-MARC VAN DER SCHEE, ESQ. JOHN CAFIERO, ESQ. WILSON SONSINI GOODRICH & ROSATI ROGERS & WELLS PROFESSIONAL CORPORATION CITY TOWER 650 PAGE MILL ROAD 40 BASINGHALL STREET PALO ALTO, CA 94304 LONDON, EC2V 5DE (415) 493-9300 ENGLAND 44-171-628-0101
------------------------ APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. ------------------------ If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] - --------- If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] - --------- If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] - --------- If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ 2 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION The following table sets forth the costs and expenses, other than underwriting discounts and commissions, payable by the Registrant in connection with the sale of Common Stock being registered. All amounts are estimates except the SEC registration fee, the NASD filing fee and the Nasdaq National Market listing fee.
AMOUNT TO BE PAID ---------- SEC registration fee............................................. $ 15,268 NASD filing fee.................................................. 5,539 Nasdaq National Market listing fee............................... 25,000 Printing and engraving expenses.................................. 100,000 Legal fees and expenses.......................................... 350,000 Accounting fees and expenses..................................... 225,000 Directors' and officers' liability insurance..................... 200,000 Blue Sky qualification fees and expenses......................... 3,000 Transfer agent and registrar fees................................ 5,000 Miscellaneous.................................................... 241,193 ---------- Total.................................................. $1,170,000 ==========
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS As permitted by Section 145 of the Delaware General Corporation Law, the Registrant's Amended and Restated Certificate of Incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach or alleged breach of their duty of care. In addition, as permitted by Section 145 of the Delaware General Corporation Law, the Bylaws, as amended, of the Registrant provide that: (i) the Registrant is required to indemnify its directors and officers and persons serving in such capacities in other business enterprises (including, for example, subsidiaries of the Registrant) at the Registrant's request, to the fullest extent permitted by Delaware law, including in those circumstances in which indemnification would otherwise be discretionary; (ii) the Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is not required by law; (iii) the Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding (except that it is not required to advance expenses to a person against whom the Registrant brings a claim for breach of the duty of loyalty, failure to act in good faith, intentional misconduct, knowing violation of law or deriving an improper personal benefit); (iv) the rights conferred in the Bylaws, as amended, are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers and employees; and (v) the Registrant may not retroactively amend the Bylaw provisions in a way that is adverse to such directors, officers and employees. The Registrant's policy is to enter into indemnification agreements with each of its directors and officers that provide the maximum indemnity allowed to directors and officers by Section 145 of the Delaware General Corporation Law and the Bylaws, as amended, as well as certain additional procedural protections. The indemnification provisions in the Bylaws, as amended, and the indemnification agreements entered into between the Registrant and its directors and officers may be sufficiently broad to permit indemnification of the Registrant's directors and officers for liabilities arising under the Securities Act. II-1 3 Reference is made to the following documents filed as exhibits to this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein:
EXHIBIT DOCUMENT NUMBER -------------------------------------------------------------------- ------ Form of U.S. Underwriting Agreement................................. 1.1 Form of International Underwriting Agreement........................ 1.2 Form of Third Amended and Restated Certificate of Incorporation..... 3.1 Form of Fourth Amended and Restated Certificate of Incorporation to be effective upon completion of this offering..................... 3.2 Bylaws, as amended.................................................. 3.3 Form of Indemnification Agreement entered into by the Registrant with each of its directors and executive officers................. 10.1
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES The Registrant has recently issued and sold the following securities: (i) From January 1, 1994 through September 4, 1997 the Registrant issued and sold 3,944,495 shares of Preferred Stock at purchase prices ranging from $3.83 to $8.58 for aggregate consideration of approximately $21,290,570; (ii) From January 1, 1994 through September 4, 1997 the Registrant issued and sold 586,296 shares of Common Stock to employees and consultants at an exercise price of $0.10 for aggregate consideration of approximately $59,000; (iii) From January 1, 1994 through September 4, 1997, the Registrant issued warrants to purchase up to 784,121 shares of Common Stock at exercise prices ranging from $5.72 to $14.00 per share in connection with the issuance of a portion of the Preferred Stock described in (i) above, certain loan arrangements and the settlement with Gemplus; and (iv) Concurrently with these offerings, the Registrant will issue and sell 200,000 shares of Common Stock at $9.00 per share. The issuances referred to in paragraphs (i), (iii) and (iv) were deemed exempt from registration under the Securities Act in reliance upon Section 4(2) thereof. The recipients of securities in each such transaction represented their intentions to acquire the securities for investment only and not with a view to or for sale in connection with any distribution thereof and appropriate legends were affixed to the share certificates issued in such transactions. All recipients had adequate access, through their relationships with the Registrant, to information about the Registrant. The issuances of Common Stock described in paragraph (ii) above were deemed exempt from registration under the Securities Act in reliance upon Rule 701 promulgated under the Securities Act. ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES (a) EXHIBITS
EXHIBIT NO. DESCRIPTION ----------- ---------------------------------------------------------------------------- 1.1* Form of U.S. Underwriting Agreement. 1.2* Form of International Underwriting Agreement. 3.1* Third Amended and Restated Certificate of Incorporation of Registrant. 3.2* Form of Fourth Amended and Restated Certificate of Incorporation to be effective upon completion of this offering. 3.3 Bylaws, as amended, of Registrant. 4.1* Form of Registrant's Common Stock Certificate. 5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, regarding legality of the securities being issued. 9.1* Voting Trust Agreement with Nicholas Efthymiou. 9.2* Voting Trust Agreement with Reiner Pohl. 10.1* Form of Director and Officer Indemnification Agreement. 10.2* 1997 Stock Plan. 10.3* 1997 Employee Stock Purchase Plan.
II-2 4
EXHIBIT NO. DESCRIPTION ----------- ---------------------------------------------------------------------------- 10.4* 1997 Director Option Plan. 10.5* 1997 Stock Option Plan for French Employees. 10.6* 1997 Employee Stock Purchase Plan for Non-U.S. Employees. 10.7* Partnership Agreement, dated June 8, 1995, between Registrant and Technologie-Beteiligungs-GmbH of Deutsche Ausgleichsbank. 10.8* Continuing Guarantee, dated January 15, 1997, between Registrant and Imperial Bank. 10.9* Line of Credit, dated October 23, 1996, between Registrant and Deutsche Bank. 10.10* Line of Credit, dated December 3, 1996, between Registrant and BHF Bank. 10.11* Line of Credit, dated November 11, 1996, between Registrant and Stadtsparkasse Munchen. 10.12* Lease, dated September 29, 1994, between Registrant and Los Gatos Business Park. 10.13* Sublease Agreement, dated December 17, 1996, between Intermart Systems, Inc. and Registrant. 10.14* Lease, dated September 30, 1994, between Registrant and Olbrich Franz. 10.15* Amended and Restated Stockholders' Agreement, dated April 11, 1997, between Registrant and certain investors. 10.16* Form of Employment Agreement between SCM GmbH and Messrs. Schneider and Meier. 10.17* Employment Agreement, dated May 15, 1995, between Registrant and Jean-Yves Le Roux. 10.18*+ Commitment Instrument, dated August 7, 1996, among France Telecom, Matra Communication, Registrant and Matra MHS. 10.19*+ Teaming Agreement, dated October 6, 1995, between Temic/Matra MHS, Matra Communication and Registrant. 10.20* Form of amendment to the Partnership Agreement, dated June 8, 1995, between Registrant and Technologie-Beteiligungs-GmbH of Deutsche Ausgleichsbank and form of warrant. 10.21*+ Development Agreement, dated March 6, 1997, between Intel Corporation and Registrant. 10.22*+ Technology Development and License Agreement, dated September 27, 1996, between Registrant and Sun Microsystems, Inc. 10.23* Cooperation Contract, dated March 25, 1996, between Registrant and Stocko Metallwarenfabriken Henkels and Sohn GmbH & Co. 10.24*+ Development and Supply Agreement, dated October 9, 1996, between BetaDigital Gesellschaft fur digitale Fernsehdienste mbH and Registrant. 10.25* Framework Contract, dated December 23, 1996, between Siemens Nixdorf Informationssysteme AG and Registrant. 10.26* Intentionally omitted. 10.27*+ B-1 License and Know-How Contract, dated September 4, 1996, between Deutsche Telekom AG and Registrant, as amended. 10.28* Technology Option Agreement, dated January 31, 1997, between Wolfgang Neifer and Registrant. 10.29*+ Patent License Agreement, dated November 15, 1995, between MIPS Dataline America, Inc. and Registrant. 10.30+ Development and Supply Agreement, dated May 15, 1997, between Telenor Conax and Registrant. 10.31*+ Manufacturer's Sales Representative Agreement, dated December 8, 1994, between Registrant and AGM. 10.32*+ License Agreement, dated September 5, 1997, between the Registrant and Gemplus. 10.33* Warrant Issuance and Common Stock Agreement, dated September 5, 1997, between the Registrant and Gemplus. 10.34* Common Stock Purchase Warrant dated September 5, 1997, issued to Gemplus. 10.35* Common Stock Purchase Warrant dated September 5, 1997, issued to Gemplus. 10.36* Waiver and Amendment to Amended and Restated Stockholders' Agreement dated September 5, 1997. 11.1* Statement of computation of earnings per share. 21.1* Subsidiaries of the Registrant. 23.1* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants
II-3 5
EXHIBIT NO. DESCRIPTION ----------- ---------------------------------------------------------------------------- 23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) 24.1* Power of Attorney 27.1* Financial Data Schedule
- --------------- * Filed previously. + Certain information in these exhibits has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request under 17 C.F.R. sec.sec. 200.80(b)(4), 200.83 and 230.46. (b) FINANCIAL STATEMENT SCHEDULES Schedule II -- Valuation and Qualifying Accounts Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto. ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes to provide to the Underwriters at the closing specified in the Underwriting Agreement, certificates in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. 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 California Corporation Law, the Registrant's Certificate of Incorporation, as amended, the Registrant's Bylaws, as amended, the Registrant's indemnification agreements or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 hereunder, 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 Securities Act and will be governed by the final adjudication of such issue. The undersigned Registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act, the information omitted from the form of Prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of Prospectus shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-4 6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant has duly caused this Amendment No. 3 to the Company's Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Gatos, State of California, on this 3rd day of October 1997. SCM MICROSYSTEMS, INC. By: /s/ STEVEN HUMPHREYS ------------------------------------ Steven Humphreys President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 3 to the Company's Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
SIGNATURE TITLE DATE - ----------------------------------------------- -------------------------- ---------------- /s/ STEVEN HUMPHREYS President and Chief October 3, 1997 - ----------------------------------------------- Executive Officer Steven Humphreys (Principal Executive Officer) and Director /s/ JOHN NIEDERMAIER Vice President, Finance October 3, 1997 - ----------------------------------------------- and Chief Financial John Niedermaier Officer (Principal Financial and Accounting Officer) /s/ ROBERT SCHNEIDER* Chairman of the Board October 3, 1997 - ----------------------------------------------- Robert Schneider /s/ BERND MEIER* Chief Operations Officer October 3, 1997 - ----------------------------------------------- and Director Bernd Meier /s/ FRIEDRICH BORNIKOEL* Director October 3, 1997 - ----------------------------------------------- Friedrich Bornikoel /s/ BRUCE GRAHAM* Director October 3, 1997 - ----------------------------------------------- Bruce Graham /s/ RANDALL LUNN* Director October 3, 1997 - ----------------------------------------------- Randall Lunn /s/ POH CHUAN NG* Director October 3, 1997 - ----------------------------------------------- Poh Chuan Ng /s/ ANDREW VOUGHT* Director October 3, 1997 - ----------------------------------------------- Andrew Vought *By: /s/ JOHN NIEDERMAIER - ----------------------------------------------- John Niedermaier Attorney-in-Fact
II-5 7 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION ----------- ----------------------------------------------------------------- 1.1* Form of U.S. Underwriting Agreement 1.2* Form of International Underwriting Agreement 3.1* Third Amended and Restated Certificate of Incorporation of Registrant 3.2* Form of Fourth Amended and Restated Certificate of Incorporation to be effective upon completion of this offering 3.3 Bylaws, as amended, of Registrant 4.1* Form of Registrant's Common Stock Certificate 5.1* Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, regarding legality of the securities being issued 9.1* Voting Trust Agreement with Nicholas Efthymiou 9.2* Voting Trust Agreement with Reiner Pohl 10.1* Form of Director and Officer Indemnification Agreement 10.2* 1997 Stock Plan 10.3* 1997 Employee Stock Purchase Plan 10.4* 1997 Director Option Plan 10.5* 1997 Stock Option Plan for French Employees 10.6* 1997 Employee Stock Purchase Plan for Non-U.S. Employees 10.7* Partnership Agreement, dated June 8, 1995, between Registrant and Technologie-Beteiligungs-GmbH of Deutsche Ausgleichsbank 10.8* Continuing Guarantee, dated January 15, 1997, between Registrant and Imperial Bank 10.9* Line of Credit, dated October 23, 1996, between Registrant and Deutsche Bank 10.10* Line of Credit, dated December 3, 1996, between Registrant and BHF Bank 10.11* Line of Credit, dated November 11, 1996, between Registrant and Stadtsparkasse Munchen 10.12* Lease, dated September 29, 1994, between Registrant and Los Gatos Business Park 10.13* Sublease Agreement, dated December 17, 1996, between Intermart Systems, Inc. and Registrant 10.14* Lease, dated September 30, 1994, between Registrant and Olbrich Franz 10.15* Amended and Restated Stockholders' Agreement, dated April 11, 1997, between Registrant and certain investors 10.16* Form of Employment Agreement between SCM GmbH and Messrs. Schneider and Meier 10.17* Employment Agreement, dated May 15, 1995, between Registrant and Jean-Yves Le Roux 10.18*+ Commitment Instrument, dated August 7, 1996, among France Telecom, Matra Communication, Registrant and Matra MHS 10.19*+ Teaming Agreement, dated October 6, 1995, between Temic/Matra MHS, Matra Communication and Registrant 10.20* Form of Amendment to the Partnership Agreement, dated June 8, 1995, between Registrant and Technologie-Beteiligungs-GmbH of Deutsche Ausgleichsbank and form of Warrant 10.21*+ Development Agreement, dated March 6, 1997, between Intel Corporation and Registrant 10.22*+ Technology Development and License Agreement, dated September 27, 1996, between Registrant and Sun Microsystems, Inc.
8
EXHIBIT NO. DESCRIPTION ----------- ----------------------------------------------------------------- 10.23* Cooperation Contract, dated March 25, 1996, between Registrant and Stocko Metallwarenfabriken Henkels and Sohn GmbH & Co. 10.24*+ Development and Supply Agreement, dated October 9, 1996, between BetaDigital Gesellschaft fur digitale Fernsehdienste mbH and Registrant 10.25* Framework Contract, dated December 23, 1996, between Siemens Nixdorf Informationssysteme AG and Registrant 10.26* Intentionally omitted 10.27*+ B-1 License and Know-How Contract, dated September 4, 1996, between Deutsche Telekom AG and Registrant, as amended 10.28* Technology Option Agreement, dated January 31, 1997, between Wolfgang Neifer and Registrant 10.29*+ Patent License Agreement, dated November 15, 1995, between MIPS Dataline America, Inc. and Registrant 10.30+ Development and Supply Agreement, dated May 15, 1997, between Telenor Conax and Registrant 10.31*+ Manufacturer's Sales Representative Agreement, dated December 8, 1994, between Registrant and AGM 10.32*+ License Agreement, dated September 5, 1997, between the Registrant and Gemplus 10.33* Warrant Issuance and Common Stock Agreement, dated September 5, 1997, between the Registrant and Gemplus 10.34* Common Stock Purchase Warrant dated September 5, 1997, issued to Gemplus 10.35* Common Stock Purchase Warrant dated September 5, 1997, issued to Gemplus 10.36* Waiver and Amendment to Amended and Restated Stockholders' Agreement dated September 5, 1997 11.1* Statement of computation of earnings per share 21.1* Subsidiaries of the Registrant 23.1* Consent of KPMG Peat Marwick LLP, Independent Certified Public Accountants 23.2* Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) 24.1* Power of Attorney 27.1* Financial Data Schedule
- --------------- * Filed previously. + Certain information in these exhibits has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request under 17 C.F.R. sec.sec. 200.80(b)(4), 200.83 and 230.46. EX-3.3 2 BYLAWS, AS AMENDED, OF REGISTRANT 1 EXHIBIT 3.3 CERTIFICATE OF AMENDMENT OF BYLAWS OF SCM MICROSYSTEMS, INC. The undersigned, being Secretary of SCM Microsystems, Inc. (the "Company"), hereby certifies that the Board of Directors of the Company approved the following amendments to the Bylaws of the Company, effective June 10, 1997: 1. That the fourth sentence of Article I, Section 1.7 was amended to read as follows: "Upon the effectiveness of the Company's initial public offering, a stockholder proposal to be presented at an annual meeting shall be received at the Corporation's principal executive offices not less than 30 calendar days nor more than 90 calendar days in advance of the date that the Corporation's (or the Corporation's predecessors) proxy statement was released to stockholders in connection with the previous year's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, or in the event of a special meeting, notice by the stockholder to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made." 2. That the third sentence of Article II, Section 2.11 was amended to read as follows: "Upon the effectiveness of the Company's initial public offering, a stockholder nomination for director to be elected at an annual meeting shall be received at the Corporation's principal executive officers not less than 30 calendar days nor more than 90 calendar days in advance of the date that the Corporation's (or the Corporation's predecessors) proxy statement was released to stockholders in connection with the previous year's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, or in the event of a special meeting, notice by the stockholder to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made." 3. That the first sentence of Article II, Section 2.3 was amended to strike "or without" from the sentence. Dated: June 10, 1997 /s/ John G. Niedermaier ------------------------------------- John G. Niedermaier, Secretary 2 SCM Microsystems, Inc. A DELAWARE CORPORATION BY-LAWS ARTICLE I STOCKHOLDERS Section 1.1 Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen months subsequent to the later of the date of incorporation or the last annual meeting of stockholders. Section 1.2 Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called only (i) by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board of Directors for adoption) or (ii) by the holders of not less than 10% of all shares entitled to cast votes at the meeting, voting together as a single class and shall be held at such place, on such date, and at such time as they shall fix. Business transacted at special meetings shall be confined to the purpose or purposes stated in the notice. Section 1.3 Notice of Meetings. Written notice of the place, date, and time of all meetings of the stockholders shall be given, not less than ten (10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation). When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 1.4 Quorum. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall 3 constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. If a quorum shall fail to attend any meeting, the chairman of the meeting or the holders of a majority of the shares of stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place, date, or time. If a notice of any adjourned special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting. Section 1.5 Conduct of the Stockholders' Meeting. At every meeting of the stockholders, the Chairman, if there is such an officer, or if not, the President of the Corporation, or in his absence the Vice President designated by the President, or in the absence of such designation any Vice President, or in the absence of the President or any Vice President, a chairman chosen by the majority of the voting shares represented in person or by proxy, shall act as Chairman. The Secretary of the Corporation or a person designated by the Chairman shall act as Secretary of the meeting. Unless otherwise approved by the Chairman, attendance at the stockholders' meeting is restricted to stockholders of record, persons authorized in accordance with Section 8 of these Bylaws to act by proxy, and officers of the Corporation. Section 1.6 Conduct of Business. The Chairman shall call the meeting to order, establish the agenda, and conduct the business of the meeting in accordance therewith or, at the Chairman's discretion, it may be conducted otherwise in accordance with the wishes of the stockholders in attendance. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting. The Chairman shall also conduct the meeting in an orderly manner, rule on the precedence of and procedure on, motions and other procedural matters, and exercise discretion with respect to such procedural matters with fairness and good faith toward all those entitled to take part. The Chairman may impose reasonable limits on the amount of time taken up at the meeting on discussion in general or on remarks by any one stockholder. Should any person in attendance become unruly or obstruct the meeting proceedings, the Chairman shall have the power to have such person removed from participation. Notwithstanding anything in the Bylaws to the contrary, no business shall be conducted at a meeting except in accordance with the procedures set forth in this Section 1.6 and Section 1.7, below. The Chairman of a meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting and in accordance with the provisions of this Section 1.6 and Section 1.7, and if he should so determine, he shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted. Section 1.7 Notice of Stockholder Business. At an annual or special meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before a meeting, business must be (a) specified in the notice of -2- 4 meeting (or any supplement thereto) given by or at the direction of the Board of Directors, (b) properly brought before the meeting by or at the direction of the Board of Directors, (c) properly brought before an annual meeting by a stockholder, or (d) properly brought before a special meeting by a stockholder, but if, and only if, the notice of a special meeting provides for business to be brought before the meeting by stockholders. For business to be properly brought before a meeting by a stockholder, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder proposal to be presented at an annual meeting shall be received at the Corporation's principal executive offices not less than 120 calendar days in advance of the date that the Corporation's (or the Corporation's predecessors) proxy statement was released to stockholders in connection with the previous year's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, or in the event of a special meeting, notice by the stockholder to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the meeting was mailed or such public disclosure was made. A stockholder's notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual or special meeting (a) a brief description of the business desired to be brought before the annual or special meeting and the reasons for conducting such business at the special meeting, (b) the name and address, as they appear on the Corporation's books, of the stockholder proposing such business, (c) the class and number of shares of the Corporation which are beneficially owned by the stockholder, and (d) any material interest of the stockholder in such business. Section 1.8 Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. No stockholder may authorize more than one proxy for his shares. Each stockholder shall have one vote for every share of stock entitled to vote which is registered in his or her name on the record date for the meeting, except as otherwise provided herein or required by law. All voting, including on the election of directors but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled to vote or his or her proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the chairman of the meeting. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast. Section 1.9 Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to the -3- 5 examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any such stockholder who is present This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. ARTICLE II BOARD OF DIRECTORS Section 2.1 Number and Term of Office. The number of directors shall initially be nine (9) and, thereafter, shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption). A vacancy resulting from the removal of a director by the stockholders as provided in Article II, Section 2.3 below may be filled at special meeting of the stockholders held for that purpose. All directors shall hold office until the expiration of the term for which elected and until their respective successors are elected, except in the case of the death, resignation or removal of any director. Section 2.2 Vacancies and Newly Created Directorships. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification or other cause (other than removal from office by a vote of the stockholders) may be filled only by a majority vote of the directors then in office, though less than a quorum, and directors so chosen shall hold office for a term expiring at the next annual meeting of stockholders at which the term of office of the class to which they have been elected expires. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Section 2.3 Removal. Subject to the rights of holders of any series of Preferred Stock then outstanding, any directors, or the entire Board of Directors, may be removed from office at any time, with or without cause, but only by the affirmative vote of the holders of at least a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. Vacancies in the Board of Directors resulting from such removal may be filled by a majority of the directors then in office, though less than a quorum, or by the stockholders as provided in Article II, Section 2.1 above. Directors so chosen shall hold office until the new annual meeting of stockholders. -4- 6 Section 2.4 Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established. by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required. Section 2.5 Special Meetings. Special meetings of the Board of Directors may be called by one-third of the directors then in office (rounded up to the nearest whole number) or by the chief executive officer and shall be held at such place, on such date, and at such time as they or he or she shall fix. Notice of the place, date, and time of each such special meeting shall be given each director by whom it is not waived by mailing written notice not fewer than five (5) days before the meeting or by telegraphing or personally delivering the same not fewer than twenty-four (24) hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. Section 2.6 Quorum. At any meeting of the Board of Directors, a majority of the total number of authorized directors shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date, or time, without further notice or waiver thereof . Section 2.7 Participation in Meetings by Conference Telephone. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting. Section 2.8 Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or requited by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors. Section 2.9 Powers. The Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power: (1) To declare dividends from time to time in accordance with law; (2) To purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine; (3) To authorize the creation, mailing and issuance, in such form as it may determine, of written obligations of every kind, negotiable or non-negotiable, secured or unsecured, and to do all things necessary in connection therewith; -5- 7 (4) To remove any officer of the Corporation with or without cause, and from time to time to devolve the powers and duties of any officer upon any other person for the time being; (5) To confer upon any officer of the Corporation the power to appoint, remove and suspend subordinate officers, employees and agents; (6) To adopt from time to time such stock, option, stock purchase, bonus or other compensation plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; (7) To adopt from time to time such insurance, retirement, and other benefit plans for directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; and (8) To adopt from time to time regulations, not inconsistent with these bylaws, for the management of the Corporation's business and affairs. Section 2.10 Compensation of Directors. Directors, as such, may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors. Section 2.11 Nomination of Director Candidates. Subject to the rights of holders of any class or series of Preferred Stock then outstanding, nominations for the election of Directors may be made by the Board of Directors or a proxy committee appointed by the Board of Directors or by any stockholder entitled to vote in the election of Directors generally. However, any stockholder entitled to vote in the election of Directors generally may nominate one or more persons for election as Directors at a meeting only if timely notice of such stockholder's intent to make such nomination or nominations has been given in writing to the Secretary of the Corporation. To be timely, a stockholder nomination for a director to be elected at an annual meeting shall be received at the Corporation's principal executive offices not less than 120 calendar days in advance of the date that the Corporation's Proxy statement was released to stockholders in connection with the previous year's annual meeting of stockholders, except that if no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than 30 calendar days from the date contemplated at the time of the previous year's proxy statement, or in the event of a nomination for director to be elected at a special meeting, notice by the stockholders to be timely must be received not later than the close of business on the tenth day following the day on which such notice of the date of the special meeting was mailed or such public disclosure was made. Each such notice shall set forth: (a) the name and address of the stockholder who intends to make the nomination and of the person or persons to be nominated; (b) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote for the election of Directors on the date of such notice and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (c) a description of all arrangements or understandings between the stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (d) such other information regarding -6- 8 each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the proxy rules of the Securities and Exchange Commission, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (e) the consent of each nominee to serve as a director of the Corporation if so elected. In the event that a person is validly designated as a nominee in accordance with this Section 2.11 and shall thereafter become unable or unwilling to stand for election to the Board of Directors, the Board of Directors or the stockholder who proposed such nominee, as the case may be, may designate a substitute nominee upon delivery, not fewer than five days prior to the date of the meeting for the election of such nominee, of a written notice to the Secretary setting forth such information regarding such substitute nominee as would have been required to be delivered to the Secretary pursuant to this Section 2.11 had such substitute nominee been initially proposed as a nominee. Such notice shall include a signed consent to serve as a director of the Corporation, if elected, of each such substitute nominee. If the chairman of the meeting for the election of Directors determines that a nomination of any candidate for election as a Director at such meeting was not made in accordance with the applicable provisions of this Section 2.1 1, such nomination shall be void. ARTICLE III COMMITTEES Section 3.1 Committees of the Board of Directors. The Board of Directors, by a vote of a majority of the whole Board, may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Any committee so designated may exercise the power and authority of the Board of Directors to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the Delaware General Corporation Law if the resolution which designates the committee or a supplemental resolution of the Board of Directors shall so provide. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. Section 3.2 Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third of the authorized members shall constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any -7- 9 committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee. ARTICLE IV OFFICERS Section 4.1 Generally. The officers of the Corporation shall consist of a President, a Chief Executive Officer, a Chief Operating Officer, one or more Vice Presidents, a Secretary and a Treasurer. The Corporation may also have, at the discretion of the Board of Directors, a Chairman of the Board and such other officers as may from time to time be appointed by the Board of Directors. Officers shall be elected by the Board of Directors, which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. The Chairman of the Board, if there shall be such an officer, and the President shall each be members of the Board of Directors. Any number of offices may be held by the same person. Section 4.2 Chairman of the Board. The Chairman of the Board, if there shall be such an officer, shall, if present, preside at all meetings of the Board of Directors, and exercise and perform such other powers and duties as may be from time to time assigned to him by the Board of Directors or prescribed by these bylaws. Section 4.3 President. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the President shall have, in coordination with the Chief Executive Officer and the Chief Operating Officer, the responsibility for the general management and control of the business and affairs of the Corporation, and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers (except for the Chief Executive Officer and Chief Operating Officer), employees and agents of the Corporation. Section 4.4 Chief Executive Officer. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the Chief Executive Officer shall have, in coordination with the President and the Chief Operating Officer, the responsibility for the general management and control of the business and affairs of the Corporation, and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers (except for the President and Chief Operating Officer), employees and agents of the Corporation. Section 4.5 Chief Operating Officer. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the Chief Operating Officer shall have, in coordination with the -8- 10 Chief Executive Officer and the President, the responsibility for the general management and control of the business and affairs of the Corporation, and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to him or her by the Board of Directors. He or she shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers (except for the Chief Executive Officer and President), employees and agents of the Corporation. Section 4.6 Vice President. Each Vice President shall have such powers and duties as may be delegated to him or her by the Board of Directors. One Vice President shall be designated by the Board to perform the duties and exercise the powers of the President in the event of the President's absence or disability. Section 4.7 Treasurer. Unless otherwise designated by the Board of Directors, the Chief Financial Officer of the Corporation shall be the Treasurer. The Treasurer shall have the responsibility for maintaining the financial records of the Corporation and shall have custody of all monies and securities of the Corporation. He or she shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe. Section 4.8 Secretary. Secretary shall issue all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders, the Board of Directors, and all committees of the Board of Directors. He or she shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe. Section 4.9 Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. Section 4.10 Removal. Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors. Section 4.11 Action With Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President or any officer of the Corporation authorized by the President shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation. -9- 11 ARTICLE V STOCK Section 5.1 Certificates of Stock. Each stockholder shall be entitled to a certificate signed by, or in the name of the Corporation by, the President or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by him or her. Any of or all the signatures on the certificate may be facsimile. Section 5.2 Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 5.4 of these bylaws, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. Section 5.3 Record Date. The Board of Directors may fix a record date, which shall not be more than sixty (60) nor fewer than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to the time for the other action hereinafter described, as of which there shall be determined the stockholders who are entitled: to notice of or to vote at any meeting of stockholders or any adjournment thereof; to receive payment of any dividend or other distribution or allotment of any rights; or to exercise any rights with respect to any change, conversion or exchange of stock or with respect to any other lawful action. Section 5.4 Lost, Stolen or Destroyed Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity. Section 5.5 Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish. ARTICLE VI NOTICES Section 6.1 Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee or agent shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, or by sending such notice by prepaid telegram, mailgram, telecopy or commercial courier service. Any such notice shall be addressed to such stockholder, director, officer, employee or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice shall be deemed to be given shall be the time such notice is received by such stockholder, director, officer, employee or agent, or by any -10- 12 person accepting such notice on behalf of such person, if hand delivered, or the time such notice is dispatched, if delivered through the mails or be telegram or mailgram. Section 6.2 Waivers. A written waiver of any notice, signed by a stockholder, director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver. ARTICLE VII MISCELLANEOUS Section 7.1 Facsimile Signatures. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee thereof. Section 7.2 Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer. Section 7.3 Reliance Upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care. Section 7.4 Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors. Section 7.5 Time Periods. In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 8.1 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ("proceeding"), by reason of the fact that he or she or a -11- 13 person of whom he or she is the legal representative, is or was a director, officer or employee of the Corporation or is or was serving at the request of the Corporation as a director, officer or employee of another corporation, or of a Partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer or employee or in any other capacity while serving as a director, officer or employee, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by Delaware Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said Law permitted the Corporation to provide prior to such amendment) against all expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, amounts paid or to be paid in settlement and amounts expended in seeking indemnifi cation granted to such person under applicable law, this bylaw or any agreement with the Corpora tion) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director, officer or employee and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in Section 8.2 of this Article VII, the Corporation shall indemnify any such person seeking indemnity in connection with an action, suit or proceeding (or part thereof) initiated by such person only if (a) such indemnification is expressly required to be made by law, (b) the action, suit or pro ceeding (or part thereof) was authorized by the Board of Directors of the Corporation, (c) such indemnification is provided by the Corporation, in its sole discretion, pursuant to the powers vested in the Corporation under the Delaware General Corporation Law, or (d) the action, suit or proceeding (or part thereof) is brought to establish or enforce a right to indemnification under an indemnity agreement or any other statute or law or otherwise as required under Section 145 of the Delaware General Corporation Law. Such right shall be a contract right and shall include the right to be paid by the Corporation expenses incurred in defending any such proceeding in advance of its final disposi tion; provided, however, that, unless the Delaware General Corporation Law then so prohibits, the payment of such expenses incurred by a director or officer of the Corporation in his or her capacity as a director or officer (and not in any other capacity in which service was or is tendered by such person while a director or officer, including, without limitation. service to an employee benefit plan) in advance of the final disposition of such proceeding, shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay an amounts so advanced if it should be determined ultimately that such director or officer is not entitled to be indemnified under this Section or otherwise. Section 8.2 Right of Claimant to Bring Suit. If a claim under Section 1 of this Article VII is not paid in full by the Corporation within ninety (90) days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if such suit is not frivolous or brought in bad faith, the claimant shall be entitled to be paid also the expense of prosecuting such claim. The burden of proving such claim shall be on the claimant. It shall be a defense to any such action (other then an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any, has been tendered to this Corporation) that the claimant has not met the standards of conduct which make it permissible under the Delaware General Corporation Law for the Corporation to indemnify the claimant for the amount claimed. Neither the -12- 14 failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. Section 8.3 Non-Exclusivity of Rights. The rights conferred on any person in Sections 1 and 2 of this Article VII shall not be exclusive of any other right which such persons may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors or otherwise. Section 8.4 Indemnification Contracts. The Board of Directors is authorized to enter into a contract with any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing for indemnification rights equivalent to or, if the Board of Directors so determines, greater than, those provided for in this Article VII. Section 8.5 Insurance. The Corporation shall maintain insurance to the extent reasonably available, at its expense, to protect itself and any such director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. Section 8.6 Effect of Amendment. Any amendment, repeal or modification of any provision of this Article VII by the stockholders or the directors of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such amendment, repeal or modification. ARTICLE IX AMENDMENT Section 9.1 Amendment of Bylaws. The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by the Board of Directors shall require the approval of a majority of the total number of authorized directors (whether or not there exist any vacancies in previously authorized directorships at the time any resolution providing for adoption, amendment or repeal is presented to the Board). The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of Bylaws of the Corporation by the stockholders shall require, in addition to any vote of the holders of any class or series of stock of the Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least -13- 15 sixty-six and two-thirds percent (66-2/3%) of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. -14- 16 BY-LAWS OF SCM MICROSYSTEMS, INC. -15- 17
INDEX SECTION PAGE ARTICLE I STOCKHOLDERS Section 1.1 Annual Meeting.............................................................1 Section 1.2 Special Meetings...........................................................1 Section 1.3 Notice of Meetings.........................................................1 Section 1.4 Quorum.....................................................................1 Section 1.5 Conduct of the Stockholders' Meeting.......................................2 Section 1.6 Conduct of Business........................................................2 Section 1.7 Notice of Stockholder Business.............................................2 Section 1.8 Proxies and Voting.........................................................3 Section 1.9 Stock List.................................................................3 ARTICLE II BOARD OF DIRECTORS Section 2.1 Number and Term of Office..................................................4 Section 2.2 Vacancies and Newly Created Directorships..................................4 Section 2.3 Removal....................................................................4 Section 2.4 Regular Meetings...........................................................5 Section 2.5 Special Meetings...........................................................5 Section 2.6 Quorum.....................................................................5 Section 2.7 Participation in Meetings by Conference Telephone..........................5 Section 2.8 Conduct of Business........................................................5 Section 2.9 Powers.....................................................................5 Section 2.10 Compensation of Directors..................................................6 Section 2.11 Nomination of Director Candidates..........................................6 ARTICLE III COMMITTEES Section 3.1 Committees of the Board of Directors.......................................7 Section 3.2 Conduct of Business........................................................7 ARTICLE IV OFFICERS Section 4.1 Generally..................................................................8 Section 4.2 Chairman of the Board......................................................8 Section 4.3 President..................................................................8 Section 4.4 Chief Executive Officer....................................................8 Section 4.5 Chief Operating Officer....................................................8 Section 4.6 Vice President.............................................................9
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INDEX SECTION PAGE Section 4.7 Treasurer..................................................................9 Section 4.8 Secretary..................................................................9 Section 4.9 Delegation of Authority....................................................9 Section 4.10 Removal....................................................................9 Section 4.11 Action With Respect to Securities of Other Corporations....................9 ARTICLE V STOCK Section 5.1 Certificates of Stock.....................................................10 Section 5.2 Transfers of Stock........................................................10 Section 5.3 Record Date...............................................................10 Section 5.4 Lost, Stolen or Destroyed Certificates....................................10 Section 5.5 Regulations...............................................................10 ARTICLE VI NOTICES Section 6.1 Notices...................................................................10 Section 6.2 Waivers...................................................................11 ARTICLE VII MISCELLANEOUS Section 7.1 Facsimile Signatures......................................................11 Section 7.2 Corporate Seal............................................................11 Section 7.3 Reliance Upon Books, Reports and Records..................................11 Section 7.4 Fiscal Year...............................................................11 Section 7.5 Time Periods..............................................................11 ARTICLE VIII INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 8.1 Right to Indemnification..................................................11 Section 8.2 Right of Claimant to Bring Suit...........................................12 Section 8.3 Non-Exclusivity of Rights.................................................13 Section 8.4 Indemnification Contracts.................................................13 Section 8.5 Insurance.................................................................13 Section 8.6 Effect of Amendment.......................................................13
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INDEX SECTION PAGE ARTICLE IX AMENDMENT Section 9.1 Amendment of Bylaws.......................................................13
-iii- EX-10.30 3 DEVELOPMENT AND SUPPLY AGREEMENT 1 EXHIBIT 10.30 DEVELOPMENT AND SUPPLY AGREEMENT between SCM Microsystems GmbH Luitpoldstra e 6 D-85276 Pfaffenhofen - - hereinafter "SCM" and TELENOR Conax Fred, Olsensgt 6 N - 0152 OSLO - - hereinafter "TELENOR" 1.0 PROGRAM DESCRIPTION A. SCM will use reasonable endeavours to design, manufacture, test and supply to TELENOR verification devices ("PROTOTYPES") to meet the functional and parametric specification that has been mutually agreed upon in writing by the parties ("SPECIFICATION"). B. Upon mutual written approval of the SPECIFICATION, SCM will implement the design and fabricate and ship PROTOTYPES to TELENOR in accordance with the agreed upon delivery schedule. C. The deliverables, schedule, and charges are set forth in Appendix I hereto: 2.0 PROTOTYPE ACCEPTANCE AND DISCLAIMER OF WARRANTIES AND REMEDIES TELENOR shall perform acceptance testing within thirty (30) days after receipt of PROTOTYPES to determine whether PROTOTYPES conform to the SPECIFICATION. If within the acceptance period, TELENOR demonstrates that the PROTOTYPES fail to meet the SPECIFICATION, SCM shall use reasonable endeavours to correct the defect if technically feasible at SCM's expense and to supply new PROTOTYPES within a reasonable period after written notification of the defect and confirmation by SCM. If SCM is unable to correct the defect, SCM shall refund all moneys paid to SCM by TELENOR hereunder. Notwithstanding any assistance SCM may provide in the definition of the SPECIFICATION; SCM does not warrant adequacy of such specification with respect to TELENOR's intended use and SCM shall not be responsible for circuit performance in the TELENOR application. Page/Seite 1 2 The foregoing states the entire warranty. All other claims for warranty or performance are excluded. This shall not apply to claims arising from the lack of an assured characteristic, or because SCM concealed the defect in bad faith. No assured characteristics shall be deemed to be created by this Agreement. Any assured characteristics may only be created by written confirmation of the parties. 3.0 PAYMENT SCHEDULE AND TERMS AND TERMINATION SCM will invoice Telenor in accordance with the following schedule: PROJECT PHASES Phase 1: Functional Specification and Feasibility Study: [ * ] - Overall hardware design definition - Software architecture [ * ] definition - Detailed production cost estimates Phase 2: Detailed Specifications: U$ [ * ] [ * ] - Processor Silicon specifications - Electrical Design - Mechanic specifications - Software specifications - Emulation environment for software development Phase 3: [ * ] software on evaluation board: U$ [ * ] [ * ] - [ * ] - [ * ] - Software development - Evaluation board Phase 4: Prototype and production release U$ [ * ] [ * ] - Working prototype module - Release for production * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. 3 Payment terms: Net 30 days from the date of SCM's invoice Telenor may terminate after the completion of each phase of the four phases as defined above. At each phase [ * ] will be billed [ * ]. In case the contract is terminated before phase two is completed, SCM has the repurchase rights of 50 % of 34985 shares as outlined in the side letter from Telenor from 30. April 1997 (Rune Rinnan). 4.0 DELAY If SCM does not comply with the schedule set forth in Appendix 1, TELENOR shall be entitled to set SCM a reasonable period after the expire of which without the required performance from SCM, TELENOR shall be entitled to terminate this Agreement by written notification to SCM. In this case all development charges previously paid by Telenor shall be refunded if SCM was responsible for the delay. All other claims are excluded. 5.0 OTHER DAMAGE CLAIMS Other damage claims of TELENOR against SCM (in particular because of breach of advisory obligations or secondary contractual duties, breach of contract, tortuous acts and culpa in contrahendo) are excluded. This does not apply if damages are caused by an intentional act or the gross negligence of an agent or employee of SCM. SCM shall not be liable, however, where such damages are due to an intentional act or gross negligence of an agent or employee of SCM who is not an executive or legal representative of SCM, unless such damages are caused by infringement of a major contractual obligation. The claims specified above are subject to a limitation period of 6 (six) months except for claims for tortuous acts. 6.0 PROPERTY RIGHTS A. TELENOR agrees that incorporation by SCM of one or more SCM Standard Modules in any integrated circuit design under this Agreement shall not derogate in any way from SCM's rights in such Module(s) nor, subject to the * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Page/Seite 3 4 following provisions of this Section, shall it limit the freedom of SCM to use such Module(s) for the benefit of itself or of other parties. Any new modules developed by SCM pursuant to this Agreement shall be deemed to be SCM Standard Modules unless otherwise agreed in writing by the parties. Title and all rights in any [ * ] and associated design rights in [ * ], including the right to register such [ * ] under all applicable statutes, and in the [ * ] arising out of performance under this Agreement shall be owned exclusively by SCM. B. SCM will assign a unique part number to device manufactured by SCM for TELENOR hereunder and will not accept any purchase order from any other customer for the supply of such device ordered by the unique part number unless previously agreed in writing with TELENOR. In case of such deliveries to other customers, SCM agrees to pay TELENOR [ * ] as compensation for TELENOR's R&D contribution to a maximum [ * ] 7.0 INVENTIONS Each party represents that it has agreements with its employees (which term shall include agents, consultants and subcontractors) such that ownership of intellectual property rights in and to any invention made by its employees vests in the employer. With respect to any invention made in the course of performance of this agreement the following rules shall apply: A. The intellectual property rights in and to any invention made solely by one or more employees of either party shall be the sole property of that party and no license thereunder shall be granted to the other party except by separate written agreement. In case of a registered invention, each party informs the other party about their invention. B. The intellectual property rights in and to any invention made jointly by one or more employees of SCM with one or more employees of TELENOR shall be jointly owned by SCM and TELENOR with each party having unrestricted right to licensee third parties thereunder without accounting to the other. The parties agree that the configuration of the device developed pursuant to this Agreement shall not be deemed to be an invention by either party. * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Page/Seite 4 5 8.0 PRODUCTION A. TELENOR's purchases of production devices will be initiated by written purchase orders and SCM's agreement to sell will be by written order acknowledgement. Unless and until the parties execute a separate written production agreement, the only terms and conditions of sale for production devices shall be those set forth in SCM's Standard Terms and Conditions of Sale in effect at the time of order acknowledgement. B. TELENOR will be permitted to cancel any undelivered production devices subject to the following agreed upon cancellation charges: [ * ] C. Notwithstanding the fact that wafer fabrication and assembly may be initiated at any given site, SCM reserves the right to support wafer fabrication and assembly from any of SCM's internally qualified wafer fabrication and assembly sites. 9.0 GENERAL A. TELENOR agrees that it will not knowingly (1) export or reexport, directly or indirectly, any technical data or devices (subject to the Export Administration Regulations of the US and other applicable jurisdictions) received from SCM under this Agreement, (2) disclose such technical data for use in, or (3) export or reexport, directly or indirectly, any direct product of such technical data to any destination to which such export or reexport is restricted or prohibited by US or non-US law, without obtaining prior authorization from US Department of Commerce and other competent government authorities to the extent required by those laws. SCM will comply with those regulations and will apply to obtain the necessary licenses for shipping the products to Telenor. B. The existence, validity, and construction of this Agreement and performance hereunder shall be governed by the laws of Germany and the Munich courts to whose jurisdiction the parties hereby submit, shall have exclusive jurisdiction to hear all disputes. * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Page/Seite 5 6 C. Consent by either party to, or waiver of, a breach by the other party, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. D. If any provision, or part of any provision of this Agreement, or the Appendices hereto, is invalidated by operation of law or otherwise, the provision or part will to that extent be deemed omitted and the remainder of this Agreement, or applicable Appendix will remain in full force and effect. Should the case arise, the parties agree that such invalidated provision or part thereof shall be replaced by a similar but legally valid provision which is as close as possible in commercial effect to the invalidated provision or part thereof. E. No information transmitted by either party to the other shall be considered proprietary unless labelled accordingly and subject to a separate written confidentiality agreement defining the rights and obligations of the parties with respect thereto. F. Neither party shall publicly announce or disclose the existence of this Agreement or its terms and conditions, or advertise or release any publicity regarding this Agreement, without the prior written consent of the other party. G. THIS AGREEMENT AND ITS APPENDIX ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND ANY APPENDIX. NO ADDITION TO OR MODIFICATION OF THIS AGREEMENT SHALL BE BINDING UPON EITHER PARTY UNLESS REDUCED IN WRITING AND DULY EXECUTED BY THE PARTIES TO THIS AGREEMENT. H. The provisions of Section 6 to 9 shall survive the termination or cancellation of this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. SCM MICROSYSTEMS GMBH TELENOR By: /s/ BERND MEIER By: /s/ OYSTEIN CARSEN ----------------------- ----------------------- Name: Bernd Meier Name: Oystein Carsen --------------------- --------------------- Title: COO Title: Managing Director --------------------- -------------------- Date: 05/15/97 Date: 05/15/97 --------------------- --------------------- Page/Seite 6 7 APPENDIX 1 1.0 PRELIMINARY PRODUCT DESCRIPTION See annex [ * ] MODULE TELENOR PROJECT" After the first phase (see 5.0) the product description might be readjusted upon agreement of both parties. 2.0 STANDARD DEVELOPMENT PACKAGE See annex [ * ] MODULE TELENOR PROJECT" After the first phase (see 5.0), the "standard development package" might be readjusted upon agreement of both parties. 3.0 DEVELOPMENT CHARGES See paragraph 3 in contract. 4.0 PAYMENT SCHEDULE See paragraph 3 of contract. 5.0 PRELIMINARY DEVELOPMENT SCHEDULE STAGE RESP. ESTIMATED COMPLETION DATE Day/Month/Year [ * ] Further details as outlined in the project plan attached to the [ * ] module Telenor project plan. After first phase the completion dates can be readjusted upon agreement of both parties. 7.0 PRODUCTION DEVICE PRICING for device integrated into DVB-CAM (similar to current CAM) As production device pricing cannot be defined now the parties agree to work together to achieve a price target of US [ * ] to US [ * ]. There can be no guarantee that these prices can be achieved. Following PROTOTYPE approval by TELENOR, SCM's estimated lead-time for production devices is approx. [ * ] after receipt of TELENOR's order. * CERTAIN CONFIDENTIAL INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. Page/Seite 7 8 [Facsimile dated April 30, 1997] [Telenor Venture Logo] Dear Steven Humphreys, With regards to the fax from Hasse Iwarsson to you send 04/28/97 and your response of 04/29/97, we hereby confirm that we enter into the technology agreement as described. The technology agreement will be divided in 4 phases of each USD [*], and Telenor Venture will be able to terminate the technology agreement within the day before entering into each next phase. The full warrant coverage of 194.930 shares at a predetermined price of US$8,58 will be honored. Concerning the [*] shares to be issued to Telenor Venture we accept that [*] of the shares is repurchaseable after the first phase is initiated and paid, and that [*] shares is repurchaseable after second phase is initiated and paid. In the name of good order, please confirm your acceptance by fax. On behalf of Telenor Venture AS /s/ Rune Rinnan CEO *Certain confidential information on this page has been omitted and filed separately with the Securities and Exchange Commission. -----END PRIVACY-ENHANCED MESSAGE-----