As filed with the Securities and Exchange Commission on March 15, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ZHONE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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22-3509099
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(State or other jurisdiction
of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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7195 Oakport Street
Oakland, California 94621
(Address of principal executive offices
including zip code)
Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan
(Full title of the plan)
Morteza Ejabat
Chief Executive Officer
Zhone Technologies, Inc.
7195 Oakport Street
Oakland, California 94621
(510) 777-7000
(Name, address, and telephone number, including area
code, of agent for service)
Copies to:
Craig M. Garner, Esq.
Latham & Watkins LLP
12636 High Bluff Drive, Suite 400
San Diego, California 92130
(858) 523-5400
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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Smaller reporting company
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x
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered (1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering
price
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Amount of
registration
fee
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Common stock, $0.001 par value, to be issued pursuant to the Zhone Technologies, Inc.
Amended and Restated 2001 Stock Incentive Plan, as amended (2)
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627,340 shares
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$ (3)
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$715,168
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$82
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(1)
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In addition, pursuant to Rule 416 under the Securities Act of 1933 (the Securities Act), this registration statement shall also cover any additional shares
of common stock which become issuable under the above named plan by reason of any stock split, stock dividend, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number
of outstanding shares of our common stock.
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(2)
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Represents 627,340 additional shares of our common stock that became available for issuance on January 1, 2012 under the Zhone Technologies, Inc. Amended and
Restated 2001 Stock Incentive Plan, as amended (the 2001 Plan), pursuant to the evergreen provision of the 2001 Plan, which provides that the number of shares available for issuance under the 2001 Plan will be increased automatically on
January 1 of any year in which the number of shares available for issuance under the 2001 Plan is less than five percent (5%) of the total number of outstanding shares on such date. In any such case, the increase is equal to an amount such
that the aggregate number of shares available for issuance under the 2001 Plan equals the lesser of (a) five percent (5%) of the total number of outstanding shares on such date, (b) 1,000,000 shares or (c) such other number of
shares as determined by our board of directors.
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(3)
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The proposed maximum offering price per share has been estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of
calculating the registration fee. The computation is based upon the average of the high and low prices of the common stock as reported on the Nasdaq Stock Market on March 8, 2012, because the price at which the awards to be granted in the
future may be exercised is not currently determinable.
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Proposed sales to take place as soon after the
effective date of the registration statement
as awards granted under the above-named plan are granted, exercised and/or
distributed.
EXPLANATORY NOTE
This Registration Statement on Form S-8 registers the offer and sale of an additional 627,340 shares of common stock of Zhone
Technologies, Inc. for issuance under the 2001 Plan. In accordance with Instruction E to Form S-8, the contents of the prior Registration Statements, File Nos. 333-123369, 333-132336, 333-141153, 333-149598, 333-155321, 333-158009, 333-165510 and
333-172876 are hereby incorporated by reference.
Item 3.
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Incorporation of Documents by Reference.
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The Securities and Exchange Commission (the SEC) allows us to incorporate by reference the information we file with them, which means that we can disclose important information to
you by referring you to those documents. The information incorporated by reference is considered to be part of this registration statement, and later information filed with the SEC will update and supersede this information. We hereby incorporate by
reference into this registration statement the following documents previously filed with the SEC:
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(a)
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Our Annual Report on Form 10-K filed with the SEC on March 15, 2012;
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(b)
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Our Current Report on Form 8-K filed with the SEC on February 6, 2012; and
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(c)
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The description of our common stock set forth in our registration statement on Form 8-A filed with the SEC on May 11, 2001, including any subsequently filed
amendments and reports updating such description (File No. 000-32743).
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All documents that we subsequently file
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment to the 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; except as to any portion of any future
annual or quarterly report to stockholders or document or current report furnished under Item 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions. For the purposes of this registration statement, 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 furnished under Item 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.
You should rely only on the information provided or incorporated by reference in this registration statement or any related prospectus.
We have not authorized anyone to provide you with different information. You should not assume that the information in this registration statement or any related prospectus is accurate as of any date other than the date on the front of the document.
The Exhibit
Index on page 3 is incorporated herein by reference as the list of exhibits required as part of this registration statement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that the registrant 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 Oakland, State of California, on March 15, 2012.
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Zhone Technologies, Inc.
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By:
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/s/ Kirk Misaka
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Kirk Misaka
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Chief Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Morteza Ejabat and Kirk Misaka, and each of them, with full power to act without the other, such
persons true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign this registration statement, and any and all amendments
thereto (including post-effective amendments), and to file the same, with exhibits and schedules thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, 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 persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Morteza Ejabat
Morteza Ejabat
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Chairman of the Board of Directors, President and Chief Executive Officer (Principal Executive Officer)
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March 15, 2012
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/s/ Kirk Misaka
Kirk Misaka
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Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer)
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March 15, 2012
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/s/ Lawrence Briscoe
Lawrence Briscoe
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Director
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March 15, 2012
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/s/ Michael Connors
Michael Connors
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Director
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March 15, 2012
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/s/ Robert Dahl
Robert Dahl
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Director
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March 15, 2012
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/s/ C. Richard Kramlich
C. Richard Kramlich
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Director
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March 15, 2012
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/s/ Nancy Pierce
Nancy Pierce
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Director
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March 15, 2012
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/s/ James Timmins
James Timmins
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Director
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March 15, 2012
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2
EXHIBIT INDEX
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Exhibit
Number
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Description
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5.1
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Opinion of Latham & Watkins LLP with respect to the legality of the shares being registered
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10.1
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Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of registrants Form 8-K filed on May 17,
2007)
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10.2
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First Amendment to the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of registrants Form 8-K filed on
October 17, 2008)
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10.3
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Form of Stock Option Agreement for the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of registrants Form
8-K filed on September 1, 2006)
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10.4
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Form of Restricted Stock Award Agreement for the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 of
registrants Form 8-K filed on May 17, 2007)
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23.1
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Consent of independent registered public accounting firm
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23.2
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Consent of Latham & Watkins 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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