DZSI DZS Inc

DASAN ZHONE SOLUTIONS, INC.

(Exact name of registrant as specified in its charter)

 

Delaware		22-3509099
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

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CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share		Proposed maximum aggregate offering price		Amount of registration fee
Common stock, $0.001 par value (2)		2,000,000 shares		$13.23 (3)		$26,460,000.00		$3,206.95

 

(1)	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 or agreement 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.
(2)	Represents 2,000,000 shares of our common stock available (or that may become available) for issuance under the DASAN Zhone Solutions, Inc. 2018 Employee Stock Purchase Plan (the “ESPP Plan”), which number consists of 2,000,000 shares of our common stock available for issuance under the ESPP Plan as of the date of this registration statement.
(3)	This estimate is made pursuant to Rules 457(c) and 457(h) under the Securities Act solely for purposes of calculating the registration fee. The computation is based upon the average of the high and low prices of DASAN Zhone Solutions, Inc. common stock as reported on the Nasdaq Capital Market on November 5, 2018.

  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.

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PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

In this registration statement, DASAN Zhone Solutions, Inc. is sometimes referred to as "DZS," “registrant,” “we,” “us” or“our.”  

Item 3.	Incorporation of Documents by Reference.

 

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:

 

	(a)	Our Annual Report on Form 10-K filed with the SEC on April 4, 2018.
	(b)	Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2018, June 30, 2018 and September 30, 2018 filed with the SEC on May 15, 2018, August 10, 2018 and November 8, 2018, respectively;
	(c)	Our Current Reports on Form 8-K filed with the SEC on February 28, 2018, April 2, 2018, April 11, 2018, May 10, 2018, May 24, 2018, July 17, 2018, August 9, 2018, August 16, 2018 and October 9, 2018; and
	(d)	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).

      All documents that we subsequently file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (“Exchange Act”), 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.

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Item 4.	Description of Securities.

Not applicable.

Item 5.	Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.	Indemnification.

Our certificate of incorporation, as restated, provides that we will indemnify our directors and officers to the fullest extent permitted by the Delaware General Corporation Law.

Our certificate of incorporation, as restated, provides that we will indemnify any person who was or is a party or is threatened to be made a party to any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of DZS, or is or was serving at our request as a director or officer of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other enterprise, whether the basis of the proceeding is alleged action in an official capacity as a director or officer or in any other capacity while so serving, to the full extent authorized by the Delaware General Corporation Law.

Our certificate of incorporation, as restated, also eliminates the personal liability of a director to DZS or to our stockholders for monetary damages for breach of fiduciary duty as a director, except for liabilities arising (a) from any breach of the director’s duty of loyalty to the corporation or to our stockholders; (b) from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) under Section 174 of the Delaware General Corporation Law; or (d) from any transaction from which the director derived an improper personal benefit.  

Our certificate of incorporation, as restated, also permits us to purchase and maintain insurance on behalf of any person who is or was or has agreed to become a director or officer of DZS for any liability asserted against him or her in such capacity, or arising out of his or her status as such, regardless of whether we would have the power to indemnify such person under the provisions of our certificate of incorporation, as restated. We have obtained directors’ and officers’ liability insurance.

We have entered into separate indemnification agreements with our directors and executive officers, in addition to indemnification provided for in our certificate of incorporation, as restated. These agreements, among other things, provide for indemnification of our directors and executive officers for expenses and liabilities of any type incurred by any such person in connection with the investigation, defense or appeal of any proceeding to which such person is a party by reason of the fact such person is or was an agent of the company at any time or by reason of anything done in such capacity. These agreements also require us to maintain directors’ and officers’ liability insurance. We believe that these provisions in our certificate of incorporation, as restated, and indemnification agreements are necessary to attract and retain qualified persons as directors and executive officers.

The limitation of liability and indemnification provisions in our certificate of incorporation, as restated, may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our stockholders. A stockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. There is no pending litigation or proceeding naming any of our directors or officers as to which indemnification is being sought, nor are we aware of any pending or threatened litigation that may result in claims for indemnification by any director or officer.

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Item 7.	Exemption from Registration Claimed.

Not applicable.

 

Item 8.	Exhibits.

 

Exhibit Number		Description
5.1		Opinion of DLA Piper LLP (US) with respect to the legality of the shares being registered
10.1		DASAN Zhone Solutions, Inc. 2018 Employee Stock Purchase Plan
23.1		Consent of independent registered public accounting firm
23.2		Consent of independent registered public accounting firm
23.3		Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
24.1		Power of Attorney (included on signature page)

 

Item 9.	Undertakings.

 

(a) The undersigned registrant hereby undertakes:

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement,

(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 this 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 this 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 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;

provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this registration statement is on Form S-8 and 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 that are incorporated by reference in this 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.

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(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 this registration statement shall be deemed to be a new registration statement, relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) Insofar as indemnification for liabilities arising under the 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 SEC 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 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 November 8, 2018.

 

DASAN Zhone Solutions, Inc.
By:		/s/ Il Yung Kim
		Il Yung Kim
		President and Chief Executive Officer

  POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Il Yung Kim such person’s true and lawful attorney-in-fact and agent, 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 attorney-in-fact and agent 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 attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

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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.

Signature		Title		Date
/s/ Il Yung Kim		President and Chief Executive Officer		November 8, 2018
Il Yung Kim
/s/ Michael Golomb		Chief Financial Officer, Corporate Treasurer and Secretary		November 8, 2018
Michael Golomb
/s/ Min Woo Nam		Chairman of the Board of Directors		November 8, 2018
Min Woo Nam
/s/ Michael Connors		Director		November 8, 2018
Michael Connors
/s/ Seong Gyun Kim		Director		November 8, 2018
Seong Gyun Kim
/s/ Sung-Bin Park		Director		November 8, 2018
Sung-Bin Park
/s/ Rolf Unterberger		Director		November 8, 2018
Rolf Unterberger
/s/ David Schopp		Director		November 8, 2018
David Schopp