As filed with the Securities and Exchange Commission on May 3, 2001
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UTSTARCOM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 52-1782500
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
UTSTARCOM, INC.
1275 HARBOR BAY PARKWAY, SUITE 100
ALAMEDA, CA 94502
(510) 864-8800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1997 STOCK PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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HONG L. LU
PRESIDENT AND CHIEF EXECUTIVE OFFICER
UTSTARCOM, INC.
1275 HARBOR BAY PARKWAY, SUITE 100
ALAMEDA, CA 94502
(510) 864-8800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
CARMEN CHANG, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED
MAXIMUM PROPOSED
AMOUNT OFFERING MAXIMUM
TITLE OF EACH CLASS OF SECURITIES TO TO BE PRICE AGGREGATE AMOUNT OF
BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE REGISTRATION FEE
- ---------------------------------------------- -------------------- ------------------- ---------------------- -------------------
1997 Stock Plan
Common Stock, $0.00125 par value
(currently outstanding options) 679,815 shares $ 17.19(2) $ 11,686,019.85(2) $2,921.51(2)
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1997 Stock Plan
Common Stock, $0.00125 par value
(options available for future grant) 3,136,840 shares $ 22.43(3) $ 70,359,321.20(3) $17,589.83(3)
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TOTAL OF 1997 STOCK PLAN SHARES REGISTERED 3,816,655 shares $ 82,045,341.05 $20,511.34
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2000 Employee Stock Purchase Plan
Common Stock, $0.00125 par value 1,908,328 shares $ 22.43(3) $ 42,803,797.04(3) $10,700.95(3)
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TOTAL REGISTRATION FEES $124,849,138.09 $31,212.29
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(1) This Registration Statement shall also cover any additional shares of
the Registrant's Common Stock that become issuable under the 1997 Stock
Plan and the 2000 Employee Stock Purchase Plan described herein by
reason of any stock split, stock dividend, recapitalization or other
similar transaction effected without the Registrant's receipt of
consideration that results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) In accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), the computation is based upon the weighted average
exercise price per share of $17.19 as to 679,815 shares of Common Stock
subject to outstanding but unexercised options granted under the 1997 Stock
Plan.
(3) Computed in accordance with Rules 457(h) and (c) under the Securities
Act, solely for the purpose of calculating the registration fee. The
proposed maximum offering price per share is estimated based upon the
average of the high and low sales prices per share of the Common Stock
as reported on the Nasdaq National Market on April 27, 2001, which is
equal to $22.43 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission (the "Commission") are hereby incorporated
by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K/A (Commission file
no. 000-29661) for the year ended December 31, 2000, filed with
the Commission on March 1, 2001; and
(b) The description of the Common Stock of the Registrant that is
contained in the Registrant's Registration Statement on Form
8-A filed pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") on February 23,
2000.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be part hereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Carmen Chang, a member of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, is Assistant Secretary of the Registrant. Wilson
Sonsini Goodrich & Rosati is corporate counsel to the Registrant. In
addition, certain individual attorneys employed by Wilson Sonsini Goodrich &
Rosati beneficially own shares of the Registrant's Common Stock. As of April
17, 2001, such individuals beneficially owned an aggregate of approximately
5,000 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, the
Registrant can indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act
of 1933, as amended (the "Securities Act"). The Registrant's bylaws provide
that it will indemnify its directors and officers to the fullest extent
permitted by law.
The Registrant's certificate of incorporation provides that,
pursuant to Delaware law, its directors shall not be liable for monetary
damages for breach of the directors' fiduciary duty of care to the Registrant
and its stockholders. This provision in the certificate of incorporation does
not eliminate the duty of care, and in appropriate circumstances equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant or its stockholders, for acts or omissions not in good faith or
involving intentional misconduct or knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities laws or
state or federal environmental laws.
In addition, the Registrant has entered or will enter into
agreements to indemnify its directors and certain officers in addition to the
indemnification provided for in the certificate of incorporation and bylaws.
These agreements will, among other things, indemnify the Registrant's
directors and certain officers for
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certain expenses (including attorneys' fees), judgments, fines and settlement
amounts incurred by such person in any action or proceeding, including any
action by or in the Registrant's right, on account of services by that person
as a director or officer of the Registrant or as a director or officer of any
subsidiary of the Registrant, or as a director or officer of any other
company or enterprise that the person provides services to at the request of
the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed
as part hereof, or incorporated by reference into, this Registration
Statement. (See Exhibit Index below).
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, 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 clauses (i) and (ii) do not
apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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 an 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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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 Alameda, State of California on April 30, 2001.
UTSTARCOM, INC.
By: /s/ Hong Liang Lu
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Hong Liang Lu
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hong Liang Lu and Michael Sophie, jointly
and severally, his attorneys-in-fact, each with the power of substitution, for
him in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may 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 date indicated.
SIGNATURE TITLE DATE
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/s/ Hong Liang Lu
- ------------------------------------- Chief Executive Officer (principal
Hong Liang Lu executive officer) and Director April 30, 2001
/s/ Michael Sophie
- ------------------------------------- Chief Financial Officer (principal
Michael Sophie financial and accounting officer) April 30, 2001
/s/ Masayoshi Son
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Masayoshi Son Director April 30, 2001
/s/ Ying Wu
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Ying Wu Director April 30, 2001
/s/ Chauncey Shey
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Chauncey Shey Director April 30, 2001
/s/ Thomas J. Toy
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Thomas J. Toy Director April 30, 2001
/s/ Larry D. Horner
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Larry D. Horner Director April 30, 2001
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INDEX TO EXHIBITS
SEQUENTIALLY
EXHIBIT NUMBER EXHIBIT DOCUMENT NUMBERED PAGE
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered (Counsel to the Registrant)
23.1 Consent of PricewaterhouseCoopers LLP, Independent Public Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-3)
99.1(1) 1997 Stock Plan, as amended
99.2(2) 2000 Employee Stock Purchase Plan
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(1) Incorporated by reference to Exhibit 10.4 to the Registrant's
Registration Statement on Form S-1 (File No. 333-93069), effective March
2, 2000.
(2) Incorporated by reference to Exhibit 10.5 to the Registrant's
Registration Statement on Form S-1 (File No. 333-93069) effective March
2, 2000.
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