Securities Registration: Employee Benefit Plan (s-8)
April 15 2020 - 5:23PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on April 15,
2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
ZOOM TELEPHONICS, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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04-2621506
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(State
or other jurisdiction ofincorporation or organization)
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(I.R.S.
EmployerIdentification Number)
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225 Franklin Street, 26th Floor
Boston, MA 02110
(617) 423-1072
(Address
of Principal Executive Offices)
Zoom Telephonics, Inc. 2019 Stock Option Plan
Zoom Telephonics, Inc. 2019 Directors Stock Option
Plan
(Full
Title of the Plans)
Joseph Wytanis
President and Chief Executive Officer
225 Franklin Street, 26th Floor
Boston, MA 02110
(617) 423-1072
(Name,
address, including zip code, and telephone number, including area
code, of agent for service)
Copies to:
Stephen D. Brook, Esq.
Robert A. Petitt, Esq.
Burns
& Levinson LLP
125
High Street
Boston,
Massachusetts 02110
(617)
345-3000
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated
filer,” “smaller reporting company,” and
“emerging growth company” in Rule 12b-2 of the Exchange
Act.
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Large
accelerated filer ☐
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Accelerated filer
☐
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Non-accelerated
filer ☒
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Smaller
reporting company ☒
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Emerging growth
company ☐
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If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 7(a)(2)(B) of the Securities Act.
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CALCULATION OF REGISTRATION FEE
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Title of Securitiesto be Registered
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Amount to be Registered(1)
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Proposed Maximum Offering Priceper Share
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Proposed Maximum Aggregate Offering Price
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Amount of RegistrationFee
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Common
Stock, $0.01 par value per share
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3,070,000
shares
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(2)
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$0.97
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(3)
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$2,977,900
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$387
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Common
Stock, $0.01 par value per share
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930,000
shares
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(4)
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$0.85
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(5)
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$790,500
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$103
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Common
Stock, $0.01 par value per share
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910,000
shares
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(6)
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$0.97
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(7)
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$882,700
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$115
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Common
Stock, $0.01 par value per share
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90,000
shares
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(8)
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$1.06
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(9)
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$95,400
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$12
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Total
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5,000,000
shares
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$4,746,500
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$617
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the
“Securities Act”), this Registration Statement shall
also cover any additional shares of common stock which become
issuable under the above-named plans by reason of any stock
dividend, stock split, recapitalization or any other similar
transaction effected without the receipt of consideration which
results in an increase in the number of our outstanding shares of
common stock. Pursuant to Rule 416(c) under the Securities Act,
this Registration Statement shall also cover an indeterminate
amount of interests to be offered or sold pursuant to the employee
benefit plans described herein.
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(2)
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Represents
shares of common stock issuable upon exercise of stock options
available for grant pursuant to the Zoom Telephonics, Inc. 2019
Stock Option Plan.
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act, and based on $0.97, the
average of the reported high and low sales prices for a share of
Common Stock on April 13, 2020 as reported on the OTCQB Venture
Market.
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(4)
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Represents
shares of common stock issuable upon exercise of stock options
granted pursuant to the Zoom Telephonics, Inc. 2019 Stock Option
Plan.
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(5)
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Calculated
pursuant to Rule 457(h) under the Securities Act based on the
weighted average exercise price per share of the options
outstanding under the Zoom Telephonics, Inc. 2019 Stock Option
Plan.
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(6)
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Represents
shares of common stock issuable upon exercise of stock options
available for grant pursuant to the Zoom Telephonics, Inc. 2019
Directors Stock Option Plan.
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(7)
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Estimated
solely for the purpose of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act, and based on $0.97, the
average of the reported high and low sales prices for a share of
Common Stock on April 13, 2020 as reported on the OTCQB Venture
Market.
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(8)
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Represents
shares of common stock issuable upon exercise of stock options
granted pursuant to the Zoom Telephonics, Inc. 2019 Directors Stock
Option Plan.
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(9)
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Calculated
pursuant to Rule 457(h) under the Securities Act based on the
weighted average exercise price per share of the options
outstanding under the Zoom Telephonics, Inc. 2019 Directors Stock
Option Plan.
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Proposed
sales to take place as soon after the effective date of the
Registration Statement as awards are granted, exercised or
distributed under the above-named plans.
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The
documents containing the information specified in this Item 1 will
be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act. In accordance with the rules and
regulations of the Securities and Exchange Commission (the
“SEC”) and the instructions to Form S-8, such documents
are not being filed with the SEC either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
Item 2. Registrant Information and Employee Plan Annual
Information.
The
documents containing the information specified in this Item 2 will
be sent or given to participants as specified by Rule 428(b)(1)
under the Securities Act. In accordance with the rules and
regulations of the SEC and the instructions to Form S-8, such
documents are not being filed with the SEC either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The
registrant hereby incorporates by reference into this Registration
Statement the following documents filed with the SEC:
(a)
Our Annual Report
on Form 10-K for the year ended December 31, 2019 filed with
the SEC on April 15, 2020;
(b)
Our Current Reports
on Form 8-K filed with the SEC on January 21, 2020 and March 9,
2020 (in each case, except for information contained therein which
is furnished rather than filed); and
(c)
The description of
the registrant’s common stock contained in the
registrant’s registration statement on Form 10-12G, filed by
the registrant with the SEC under Section 12(b) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
on July 10, 2009, including any amendments or reports filed for the
purpose of updating such description.
All
documents that the registrant subsequently files pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment to this registration
statement which indicates that all of the shares of common stock
offered have been sold or which deregisters all of such shares 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 the filing of such documents.
Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded to the extent that a statement contained herein or in
any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a
part of this registration statement.
Under
no circumstances will any information filed under current items
2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference
unless such Form 8-K expressly provides to the
contrary.
Item 4. Description of Securities.
Not
applicable.
Item 5. Interests of Named Experts and Counsel.
Not
applicable.
Item 6. Indemnification of Directors and Officers.
The
registrant’s amended and restated certificate of
incorporation (the “Certificate of Incorporation”) and
bylaws (the “Bylaws”) authorize it to indemnify
directors, officers, employees and agents of the registrant against
expenses (including attorneys’ fees), liabilities and other
matters incurred in connection with any action, suit or proceeding,
to the fullest extent permitted by Section 145 of Delaware General
Corporation Law. In addition, the registrant’s Certificate of
Incorporation provides that its directors shall not be personally
liable to the registrant or its stockholders for monetary damages
for any breach of fiduciary duty by such director as a director.
Notwithstanding the foregoing, a director shall be liable to the
extent provided by applicable law (i) for breach of the
director’s duty of loyalty to the registrant or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the Delaware General Corporation Law or
(iv) for any transaction from which the director derived an
improper personal benefit.
The
registrant may also advance all reasonable expenses which were
incurred by or on behalf of a present director or officer in
connection with any proceeding to the fullest extent permitted by
applicable law.
The
Bylaws also permit the registrant to enter into indemnity
agreements with individual directors, officers, employees, and
other agents. Any such agreements, together with the Bylaws and
Certificate of Incorporation, may require the registrant, among
other things, to indemnify directors or officers against certain
liabilities that may arise by reason of their status or service as
directors (other than liabilities resulting from willful misconduct
of a culpable nature), to advance expenses to them as they are
incurred, and to obtain and maintain directors' and officers'
insurance if available on reasonable terms.
The
registrant maintains director and officer liability insurance
policies providing for the insurance on behalf of any person who is
or was a director or officer of the registrant or a subsidiary for
any claim made during the policy period against the person in any
such capacity or arising out of the person’s status as
such.
Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors and officers and controlling persons
of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of
the SEC such indemnification is against public policy as expressed
in the Securities Act and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
Not
applicable.
Item 8. Exhibits.
EXHIBIT INDEX
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ExhibitNo.
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Description
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Form of
Amended and Restated Certificate of Incorporation of Zoom
Telephonics, Inc. (incorporated by reference to Exhibit 3.1 to the
Registration Statement on Form 10 filed by the registrant on
September 4, 2009).
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation
of Zoom Telephonics, Inc. (incorporated by reference to Exhibit 3.1
to the Current Report on Form 8-K filed by the registrant on
November 18, 2015).
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Certificate
of Amendment to Amended and Restated Certificate of Incorporation
of Zoom Telephonics, Inc. (incorporated by reference to Exhibit 3.1
to the Current Report on Form 8-K filed by the registrant on July
30, 2019).
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Bylaws
of Zoom Telephonics, Inc. (incorporated by reference to Exhibit 3.2
to the Registration Statement on Form 10 filed by the registrant on
September 4, 2009).
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Opinion of Burns & Levinson LLP.
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Consent of Marcum LLP, Independent Registered Public Accounting
Firm.
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23.2*
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Consent of Burns & Levinson LLP (included in Exhibit
5.1).
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24.1*
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Power of Attorney (included on signature page).
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2019 Stock Option Plan (incorporated by reference to Appendix D to
the Definitive Proxy Statement filed by the registrant on May 28,
2019).
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2019 Directors Stock Option Plan (incorporated by reference to
Appendix C to the Definitive Proxy Statement filed by the
registrant on May 28, 2019).
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* Filed
herewith.
Item 9. Undertakings.
(a) The
registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i) To
include any prospectus required by Section 10(a)(3) of the
Securities Act.
(ii) To
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the
effective registration statement.
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
Provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) herein do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act (15 U.S.C. 78m or 78o(d)) that are incorporated by
reference in the registration statement.
(2)
That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(b) The
undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(h)
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the 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, 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.
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the city of Boston,
Massachusetts, on the 15th day of April, 2020.
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ZOOM TELEPHONICS, INC.
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By:
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/s/
Joseph Wytanis
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Joseph
Wytanis
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President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
KNOW
ALL BY THESE PRESENT, that each individual whose signature appears
below hereby constitutes and appoints Joseph Wytanis as such
person’s true and lawful attorney-in-fact and agent with full
power of substitution and re-substitution, for such person in such
person’s name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission granting
unto each 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 such person might or could do in person,
hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the
requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following person in the capacities
and on the date indicated.
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Name
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Title
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Date
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/s/
Joseph L. Wytanis
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President
and Chief Executive Officer
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April
15, 2020
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Joseph
Wytanis
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(Principal
Executive Officer)
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/s/
Jacquelyn L. Barry Hamilton
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Chief
Financial Officer
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April
15, 2020
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Jacquelyn
Barry Hamilton
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(Principal
Financial and Accounting Officer)
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/s/
Jeremy Hitchcock
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Chairman
of the Board
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April
15, 2020
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Jeremy
Hitchcock
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/s/
Joseph Donovan
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Director
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April
15, 2020
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Joseph
Donovan
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/s/
Philip Frank
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Director
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April
15, 2020
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Philip
Frank
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/s/
Peter Kramer
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Director
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April
15, 2020
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Peter
Kramer
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/s/
Frank B. Manning
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Director
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April
15, 2020
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Frank
B. Manning
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/s/
Jonathan Seelig
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Director
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April
15, 2020
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Jonathan
Seelig
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/s/
Peter Sykes
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Director
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April
15, 2020
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Peter
Sykes
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