-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EVDuJnLrlCfcmmkcpukSAbxY67PWdrEL8sH/RDEaUjq0zUpSs4asSrobtdewqb+9 3RlKz1bP3VVx0m+4Xe7qcg== 0000912057-01-512612.txt : 20010504 0000912057-01-512612.hdr.sgml : 20010504 ACCESSION NUMBER: 0000912057-01-512612 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010503 EFFECTIVENESS DATE: 20010503 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UTSTARCOM INC CENTRAL INDEX KEY: 0001030471 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATIONS EQUIPMENT, NEC [3669] IRS NUMBER: 521782500 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-60150 FILM NUMBER: 1621647 BUSINESS ADDRESS: STREET 1: 1275 HARBOR BAY PARKWAY STREET 2: STE 100 CITY: ALAMEDA STATE: CA ZIP: 94502 BUSINESS PHONE: 5108648800 MAIL ADDRESS: STREET 1: 1275 HARBOR BAY PARKWAY STREET 2: STE 100 CITY: ALAMEDA STATE: CA ZIP: 94502 S-8 1 a2043250zs-8.txt S-8 As filed with the Securities and Exchange Commission on May 3, 2001 Registration No. 333-____________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- UTSTARCOM, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------- 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) ---------- 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) ---------- COPIES TO: CARMEN CHANG, ESQ. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CA 94304 (650) 493-9300 ===============================================================================
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------------------------- 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) - ---------------------------------------------- -------------------- ------------------- ---------------------- ------------------- 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) - ---------------------------------------------- -------------------- ------------------- ---------------------- ------------------- TOTAL OF 1997 STOCK PLAN SHARES REGISTERED 3,816,655 shares $ 82,045,341.05 $20,511.34 - ---------------------------------------------- -------------------- ------------------- ---------------------- ------------------- 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) - ---------------------------------------------- -------------------- ------------------- ---------------------- ------------------- TOTAL REGISTRATION FEES $124,849,138.09 $31,212.29 - ----------------------------------------------------------------------------------------------------------------------------------
(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. -2- 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 II-1 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. II-2 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 --------------------------------------- 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 - --------------------------------------------- --------------------------------------- -------------------------- /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 - ------------------------------------- Masayoshi Son Director April 30, 2001 /s/ Ying Wu - ------------------------------------- Ying Wu Director April 30, 2001 /s/ Chauncey Shey - ------------------------------------- Chauncey Shey Director April 30, 2001 /s/ Thomas J. Toy - ------------------------------------- Thomas J. Toy Director April 30, 2001 /s/ Larry D. Horner - ------------------------------------- Larry D. Horner Director April 30, 2001
II-3 INDEX TO EXHIBITS
SEQUENTIALLY EXHIBIT NUMBER EXHIBIT DOCUMENT NUMBERED PAGE - ----------------------- ----------------------------------------------------------------------------- ---------------- 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
- ------------------------- (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. II-4 EX-5.1 2 a2043250zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 [LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI] May 3, 2001 UTStarcom, Inc. 1275 Harbor Bay Parkway, Suite 100 Alameda, CA 94502 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on May 3, 2001 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended (the "Securities Act"), of an aggregate of 5,724,983 shares of your Common Stock (the "Shares") reserved for issuance pursuant to the 1997 Stock Plan and the 2000 Employee Stock Purchase Plan (collectively, the "Plans"). As legal counsel for UTStarcom, Inc., we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that the Shares, when issued and sold in the manner described in the Plans and pursuant to the agreement that accompanies each grant under the Plans, will be legally and validly issued, fully-paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ WILSON SONSINI GOODRICH & ROSATI EX-23.1 3 a2043250zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 [LETTERHEAD OF PRICEWATERHOUSECOOPERS LLP] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 24, 2001 relating to the consolidated financial statements, which appears in UTStarcom Inc.'s Annual Report on Form 10-K/A for the year ended December 31, 2000. We also consent to the incorporation by reference of our report dated January 24, 2001 relating to the financial statement schedules, which appears in such Annual Report on Form 10-K/A. /s/ PRICEWATERHOUSECOOPERS LLP PricewaterhouseCoopers LLP San Francisco, CA May 3, 2001 -----END PRIVACY-ENHANCED MESSAGE-----