As filed with the Securities and Exchange Commission on March 13, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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.) |
7195 Oakport Street
Oakland, California 94621
(510) 777-7000
(Address of principal executive offices including zip code)
2017 Incentive Award Plan
(Full title of the plan)
Il Yung Kim
President, Chief Executive Officer (Principal Executive Officer)
DASAN Zhone Solutions, Inc.
7195 Oakport Street
Oakland, California 94621
(510) 777-7000
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Vanina Guerrero, Esq. Louis Lehot, Esq. Brad Rock, Esq. DLA Piper LLP (US) 2000 University Avenue East Palo Alto, California 94303-2215 (650) 833-2000 |
| Alex Yastremski, Esq. General Counsel DASAN Zhone Solutions, Inc. 7195 Oakport Street Oakland, California 94621 (510) 777-7000 |
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.
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 |
| ☐ |
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.
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, par value $0.001 per share, reserved for issuance pursuant to the 2017 Incentive Award Plan |
| 663,473 (2) |
| $10.075(3) |
| $6,684,490.48 |
| $810.17 |
TOTAL |
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| $6,684,490.48 |
| $810.17 |
(1) | Pursuant to Rule 416(a) 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 2017 Incentive Award Plan, as amended to date (the “2017 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 |
(2) The 2017 Plan provides that the aggregate number of shares which may be issued pursuant to awards under the 2017 Plan will be increased annually, beginning on January 1, 2018 and ending on and including January 1, 2027, by the number of shares equal to the lesser of (a) four percent (4%) of the outstanding shares of common stock on the last day of the immediately preceding calendar year and (b) such smaller number of shares as may be determined by the Board of Directors. The 663,473 shares of common stock registered hereunder were authorized as of January 1, 2019 pursuant to the annual increase provisions described above.
(3) Calculated solely for the purposes of this offering under Rules 457(c) and (h) of the Securities Act on the basis of the average of the high and low prices of the Registrant's common stock as reported on The NASDAQ Global Select Market on March 7, 2019.
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REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement is being filed to register additional securities of the same class as other securities for which a registration statement of DASAN Zhone Solutions, Inc. (the “Registrant”) on Form S-8 relating to the same employee benefit plans is effective. The Registrant is filing this Registration Statement with the Securities and Exchange Commission to register 663,473 additional shares of common stock under the Registrant’s 2017 Incentive Award Plan, as amended, pursuant to the provisions of such plan providing for an annual increase in the number of shares reserved for issuance under such plans. Pursuant to General Instruction E of Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the Commission on November 15, 2017 (Registration No. 333-221568).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
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 previously filed with Commission:
| (1) | The Registrant’s Annual Report on Form 10-K (File No. 333-221568) for the fiscal year ended December 31, 2018 filed on March 12, 2019. |
| (2) | All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report referred to in (a) above (in each case, except for the information furnished under Items 2.02 or 7.01 in any current report on Form 8-K). |
| (3) | The description of the Registrant’s common stock contained in the Registrant’s registration statement on Form 8-A (File No. 000-32743) filed with the SEC on May 11, 2001, including any subsequently filed amendments and reports updating such description. |
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 102(b)(7) of the Delaware General Corporation Law, as amended (“DGCL”), allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith,
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engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
Section 145 of the Delaware General Corporation Law provides for the indemnification of officers, directors, employees and agents of a corporation. The Registrant’s Certificate of Incorporation and Bylaws, as amended to date, provide that the Registrant shall indemnify its directors, officers, employees and agents to the full extent permitted by the General Corporation Law of the State of Delaware, including in circumstances in which indemnification is otherwise discretionary under such law. In addition, with the approval of the Board of Directors and the stockholders, the Registrant has entered into separate indemnification agreements with its directors, officers and certain employees which require the Registrant, among other things, to indemnify them against certain liabilities which may arise by reason of their status or service (other than liabilities arising from willful misconduct of a culpable nature) and to obtain directors’ and officers’ insurance, if available on reasonable terms.
The indemnification provisions in the Registrant's restated Certificate of Incorporation, Bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant's directors and executive officers for liabilities arising under the Securities Act.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The exhibits are listed in the “Index to Exhibits” immediately preceding the exhibits hereto and such listing is incorporated herein by reference.
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 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 Securities and Exchange Commission pursuant to Rule 424(b) (§ 230.424(b) of this chapter) 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; and
(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) of this section 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 Securities and Exchange Commission 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 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.
(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
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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 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.
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5.1 |
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23.1 |
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23.3 |
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24.1 |
| Power of Attorney (included on the signature page of this Registration Statement) |
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99.1 |
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| 8-K |
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| 10.1 |
| January 10, 2017 |
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99.2 |
| Amendment to DASAN Zhone Solutions, Inc. 2017 Incentive Award Plan |
| 10-K |
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| March 12, 2019 |
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99.3 |
| Form of Stock Option Agreement for the DASAN Zhone Solutions, Inc. 2017 Incentive Award Plan |
| 8-K |
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| 10.2 |
| January 10, 2017 |
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99.4 |
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| 10.1 |
| September 27, 2017 |
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Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oakland, State of California on this 13th day of March, 2019.
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| DASAN ZHONE SOLUTIONS, INC. | ||
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| By: |
| /s/ IL YUNG KIM |
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| Il Yung Kim |
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| President, Chief Executive Officer and Director |
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SIGNATURES AND POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
Each person whose signature appears below constitutes and appoints Il Yung Kim such person’s true and lawful attorneys-in-fact and agent, with full power of substitution and resubstitution in each of them singly, for him and in his name, place and stead, and 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.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
| Title |
| Date |
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/s/ IL YUNG KIM |
| President, Chief Executive Officer (Principal Executive Officer) |
| March 13, 2019 |
Il Yung Kim |
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/s/ MICHAEL GOLOMB |
| Chief Financial Officer, Corporate (Principal Financial and Accounting), Corporate Treasurer, and Secretary |
| March 13, 2019 |
Michael Golomb |
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/s/ MIN WOO NAM |
| Chairman of the Board of Directors |
| March 13, 2019 |
Min Woo Nam |
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/s/ MICHAEL CONNORS |
| Director |
| March 13, 2019 |
Michael Connors |
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/s/ SEONG GYUN KIM |
| Director |
| March 13, 2019 |
Seong Gyun Kim |
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/s/ SUNG-BIN PARK |
| Director |
| March 13, 2019 |
Sung-Bin Park |
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/s/ DAVID SCHOPP |
| Director |
| March 13, 2019 |
David Schopp |
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/s/ ROLF UNTERBERGER |
| Director |
| March 13, 2019 |
Rolf Unterberger
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