As filed with the Securities and Exchange Commission on November 12, 2008
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)
| Delaware | 22-3509099 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
7001 Oakport Street
Oakland, California 94621
(Address of principal executive offices)
Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan
(Full title of the plan)
Morteza Ejabat
Chief Executive Officer
Zhone Technologies, Inc.
7001 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. (Check one):
| Large accelerated filer ¨ | Accelerated filer x | Non-accelerated filer ¨ | Smaller reporting company ¨ | |||
(Do not check if a smaller reporting company) |
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, to be issued pursuant to the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (2) | 1,700,000 shares | $ 0.125 (3) | $ 212,500 | $ 8.35 | ||||
| (1) | In addition, pursuant to Rule 416 under the Securities Act (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. |
| (2) | Represents additional shares of our common stock that became available for issuance on October 16, 2008 under the First Amendment to the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan, which increased the number of shares available under the 2001 Plan by 1,700,000 shares. |
| (3) | 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 Global Market on November 7, 2008, because the price at which the options to be granted in the future may be exercised is not currently determinable. |
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 1,700,000 shares of common stock of Zhone Technologies, Inc. for issuance under the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive 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 and 333-149598, are hereby incorporated by reference.
| Item 3. | Incorporation of Documents by Reference. |
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:
| (a) | Our Annual Report on Form 10-K filed with the SEC on March 6, 2008; |
| (b) | Our Quarterly Reports on Form 10-Q filed with the SEC on May 6, 2008, August 5, 2008 and November 4, 2008; |
| (c) | Our Current Reports on Form 8-K filed with the SEC on February 25, 2008, June 13, 2008 and October 17, 2008; 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, 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 current Items 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 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.
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.
| Item 8. | Exhibits. |
The Exhibit Index on page 5 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 November 12, 2008.
| Zhone Technologies, Inc. | ||
| By: | /s/ Kirk Misaka | |
| Kirk Misaka | ||
| Chief Financial Officer, Treasurer and Secretary | ||
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 person’s 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.
Signature | Title | Date | ||
/s/ Morteza Ejabat Morteza Ejabat | Chairman of the Board of Directors, President and Chief Executive Officer (Principal Executive Officer) | November 12, 2008 | ||
/s/ Kirk Misaka Kirk Misaka | Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) | November 12, 2008 | ||
/s/ Michael Connors Michael Connors | Director | November 11, 2008 | ||
/s/ James Coulter James Coulter | Director | November 12, 2008 | ||
/s/ Robert Dahl Robert Dahl | Director | November 12, 2008 | ||
/s/ James Greene, Jr. James Greene, Jr. | Director | November 12, 2008 | ||
C. Richard Kramlich | Director | November , 2008 | ||
Steven Levy | Director | November , 2008 | ||
/s/ James Timmins James Timmins | Director | November 12, 2008 | ||
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EXHIBIT INDEX
Exhibit Number | Description | |
| 5.1 | Opinion of Latham & Watkins LLP with respect to the legality of the shares being registered | |
| 10.1 | Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of registrant’s Form 8-K filed on May 17, 2007) | |
| 10.2 | First Amendment to the Zhone Technologies, Inc. Amended and Restated 2001 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of registrant’s Form 8-K filed on October 17, 2008) | |
| 10.3 | 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 registrant’s Form 8-K filed on September 1, 2006) | |
| 10.4 | 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 registrant’s Form 8-K filed on May 17, 2007) | |
| 23.1 | Consent of independent registered public accounting firm | |
| 23.2 | Consent of Latham & Watkins LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on signature page) | |
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