As filed with the Securities and Exchange Commission on November 2, 1999
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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ZOOM TELEPHONICS, INC.
(Exact Name of Registrant as Specified in its Charter)
CANADA 04-2621506
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
207 South Street, Boston, MA 02111
(Address, Including Zip Code, of Principal Executive Offices)
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Zoom Telephonics, Inc. 1998 Employee Equity Incentive Plan
(Full title of Plan)
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Frank B. Manning
President and Chief Executive Officer
Zoom Telephonics, Inc.
207 South Street
Boston, MA 02111
(617) 423-1072
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
with a copy to:
Philip J. Flink, Esq.
Brown, Rudnick, Freed & Gesmer
One Financial Center, Boston, Massachusetts 02111
(617) 856-8200
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------ ----------------- ------------------- ------------------ ----------------
Proposed Proposed
Amount Maximum Maximum Amount of
Title of Each Class of to Be Offering Price Aggregate Registration
Securities to Be Registered Registered Per Share(1) Offering Price(1) Fee
- ------------------------------ ----------------- ------------------- ------------------ ----------------
- ------------------------------ ----------------- ------------------- ------------------ ================
<S> <C> <C> <C> <C>
Common Stock, no par value 300,000 Shares $ 4.71875 $1,415,625 $ 394.00
(2)
- ------------------------------ ----------------- ------------------- ------------------ ================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933, as amended, on the basis
of the average of the high and low reported price of the Common Stock of
Zoom Telephonics, Inc. on the Nasdaq National Market on November 1, 1999.
================================================================================
(2) Includes 300,000 shares of Common Stock issuable under the Zoom
Telephonics, Inc. 1998 Employee Equity Incentive Plan, as amended.
Such presently indeterminable number of additional shares of Common
Stock are also registered hereunder as may be issued in the event of
a merger, consolidation, reorganization, recapitalization, stock
dividend, stock split or other similar change in Common Stock.
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<PAGE>
This Registration Statement on Form S-8 is being filed for the purpose
of registering an additional 300,000 shares of the Registrant's Common Stock
reserved for issuance under the Zoom Telephonics, Inc. 1998 Employee Equity
Incentive Plan, as amended (the "Plan"). Except as otherwise provided herein,
the contents of this Registration Statement also incorporates by reference the
Registrant's previously filed Registration Statement on Form S-8 (File No.
333-75575), which registered 300,000 shares issuable under the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
Number Description
4.1 Articles of Continuance, filed as Exhibit 3.1 to the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1991
(the "1991 Form 10-K").*
4.2 By-Law No. 1 of the Registrant, filed as Exhibit 3.2 to the 1991
Form 10-K.*
4.3 By-Law No. 2 of the Registrant, filed as Exhibit 3.3 to the 1991
Form 10-K.*
4.4 Specimen Certificate of Common Stock, filed as Exhibit 4.01 to
Registration Statement No. 333-01452 on Form S-3.*
5 Legal Opinion of Thomas, Rondeau.
23.1 Consent of Thomas, Rondeau (contained in its opinion filed as
Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney, filed as Exhibit 24 to this Registration Statement
on Form S-8 .
99.1 Zoom Telephonics, Inc. 1998 Employee Equity Incentive Plan, as amended.
* Not filed herewith. In accordance with Rule 411 promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which are incorporated
by reference herein.
<PAGE>
SIGNATURES
The Registrant. 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 Boston, Massachusetts,
on November 2, 1999.
ZOOM TELEPHONICS, INC.
By: /s/ Frank B. Manning
---------------------------
Frank B. Manning, President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Frank B. Manning and Peter R. Kramer, and each
of them (with full power to each of them to act alone), his 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 any or all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits 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
requisite and necessary 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
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
/s/ Frank B. Manning Chairman of the Board, President October 22, 1999
- ------------------------ and Chief Executive Officer
Frank B. Manning (Principal Executive Officer)
/s/ Robert A. Crist Principal Financial and October 22, 1999
- ------------------------ Accounting Officer
Robert A. Crist
/s/ Peter R. Kramer Director October 22, 1999
- ------------------------
Peter R. Kramer
/s/ Bernard Furman Director October 22, 1999
- ------------------------
Bernard Furman
/s/ L. Lamont Gordon Director October 22, 1999
- ------------------------
L. Lamont Gordon
/s/ J. Ronald Woods Director November 2, 1999
- ------------------------
J. Ronald Woods
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Page No.
4.1 Articles of continuance, filed as exhibit 3.1 To the
registrant's annual report on form 10-k for the fiscal
year ended december 31, 1991 (the "1991 form 10-k").*
4.2 By-Law No. 1 of the Registrant, filed as Exhibit 3.2
to the 1991 Form 10-K.*
4.3 By-Law No. 2 of the Registrant, filed as Exhibit 3.3
to the 1991 Form 10-K.*
4.4 Specimen Certificate of Common Stock, filed as Exhibit
4.01 to Registration Statement No. 333-01452 on Form S-3.*
5 Legal Opinion of Thomas, Rondeau.
23.1 Consent of Thomas, Rondeau (contained in its opinion
filed as Exhibit 5).
23.2 Consent of KPMG LLP.
24 Power of Attorney, filed as Exhibit 24 to this
Registration Statement on Form S-8.
99.1 Zoom Telephonics, Inc. 1998 Employee Equity Incentive
Plan, as amended.* Not filed herewith. In accordance
with Rule 411 promulgated pursuant to the Securities
Act of 1933, as amended, reference is made to the
documents previously filed with the Commission, which
are incorporated by reference herein.
<PAGE>
EXHIBIT 5
November 1, 1999
Zoom Telephonics Inc.
207 South Street
Boston, Massachusetts
U.S.A. 02111
Dear Sirs:
Re: Zoom Telephonics, Inc.
Registration Statement on Form S-8
We are Canadian counsel to Zoom Telephonics, Inc. a Canadian
corporation (the "Company"). We have been asked to deliver this opinion in
connection with the preparation and filing with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
an additional 300,000 shares of the Company's Common Stock, no par value (the
"Shares") issuable upon exercise of the options granted or to be granted
pursuant to the Company's 1998 Employee Equity Incentive Plan, as amended (the
"1998 Employee Equity Incentive Plan").
We are qualified to render opinions only as to the laws of the Province
of British Columbia and the federal laws of Canada applicable herein.
Accordingly, we express no opinion as to the laws of any other jurisdiction.
This opinion is subject to the qualification that with respect to the
enforceability of any document, or instrument covered by this opinion, the
rights and remedies are subject to any applicable bankruptcy or insolvency laws
or other laws affecting creditors' rights generally and no opinion is given as
to the availability on any specific instance of the remedy of specific
performance or any other equitable remedy. We take no responsibility for
updating the opinions expressed herein or taking into account any event,
action, interpretation, change of law or similar item which occurs after the
date hereof.
In connection with this opinion, we have examined and are familiar with
originals or copies, certified or otherwise identified to our satisfaction, of
the following documents (collectively, the "Documents"):
1. a copy of the Articles of Continuance of the Company as in effect on the
date hereof;
2. a copy of By-Law No. 1 and By-Law No. 2 of the Company as in effect on
the date hereof;
3. the corporate records of the Company relating to the proceedings of
shareholders and directors of the Company;
4. the 1998 Employee Equity Incentive Plan; and
5. the Registration Statement.
In giving our opinion, we have relied as to matters in fact upon the
certificates, reports, letters and representations of public officials and of
representatives of the Company. For purposes of this opinion we have assumed
without any investigation (1) the legal capacity of each natural person and (2)
the genuineness of each signature, the completeness of each document submitted
to us as an original and the conformity to the original of each document
submitted to us as a copy.
Our opinion hereafter expressed is based solely upon (1) our view of
the Documents, (2) discussions with those attorneys who have devoted
substantive attention to the matters contained herein and (3) such review of
published sources of law as we have deemed necessary.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly authorized and, when issued in accordance with the terms
of the 1998 Equity Incentive Plan, the Shares will be validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Yours truly,
/s/ THOMAS, RONDEAU
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders of Zoom Telephonics, Inc.:
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated February 10, 1999, except as to note 15, which is
as of March 19, 1999, relating to the consolidated balance sheets of Zoom
Telephonics, Inc. and subsidiaries as of December 31, 1997 and 1998, and the
related consolidated statements of operations, stockholders' equity, and cash
flows for each of the years in the three-year period ended December 31, 1998,
which report appears in the December 31, 1998 annual report on Form 10-K of
Zoom Telephonics, Inc.
/s/ KPMG LLP
Boston, Massachusetts
November 2, 1999
<PAGE>
EXHIBIT 99.1
ZOOM TELEPHONICS, INC.
1998 EMPLOYEE EQUITY INCENTIVE PLAN
AS AMENDED ON JUNE 25, 1999
Section 1. Name and Purpose
This plan shall be known as the Zoom Telephonics, Inc. 1998 Employee
Equity Incentive Plan, as amended (the "Plan"). The purpose of the Plan is to
attract and retain employees and provide an incentive for them to assist Zoom
Telephonics, Inc. (the "Company") to achieve long-range performance goals, and
to enable them to participate in the long-term growth of the Company.
Section 2. Definitions
(a) "Award" means any Option awarded under the Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Code" means the Internal Revenue Code of 1986, as amended from time to
time.
(d) "Committee" means the Stock Option Committee of the Board, or such other
committee of not less than three members of the Board appointed by the
Board to administer the Plan.
(e) "Common Stock" or "Stock" means the Common Stock, no par value, of the
Company.
(f) "Company" means Zoom Telephonics, Inc. and any business entity in which
Zoom Telephonics, Inc. owns directly or indirectly 50% or more of the
total combined voting power or has a significant financial interest as
determined by the Committee.
(g) "Designated Beneficiary" means the beneficiary designated by a
Participant, in a manner determined by the Board, to receive amounts due
or exercise rights of the Participant in the event of the Participant's
death. In the absence of an effective designation by a Participant,
Designated Beneficiary shall mean the Participant's estate.
(h) "Fair Market Value" means, with respect to Common Stock or any other
property, the fair market value of such property as determined by the
Board in good faith or in the manner established by the Board from time to
time.
(i) "Nonqualified Stock Option" means an option to purchase shares of Common
Stock, awarded to a Participant under Section 6, which is not intended to
comply as an incentive stock option under Section 422 of the Code or any
successor provision.
(j) "Option" means a Nonqualified Stock Option.
(k) "Officer" means any individual who is a designated corporate officer of
the Company or is deemed an officer of the Company under Rule 16b-3
promulgated under the Securities Exchange Act of 1934, as amended (or any
successor or supplementary law, rule or regulation), or is deemed an
officer under Rule 4310 of the Marketplace Rules of The Nasdaq Stock
Market, Inc (or any successor or supplementary law, rule or regulation).
(l) "Participant" means a person eligible pursuant to Section 4 hereof and
selected by the Board to receive an Award under the Plan.
Section 3. Administration
The Plan shall be administered by the Committee. The Board shall have
authority to adopt, alter and repeal such administrative rules, guidelines and
practices governing the operation of the Plan as it shall from time to time
consider advisable, and to interpret the provisions of the Plan. The Board's
decisions shall be final and binding. To the extent permitted by applicable
law, the Board may delegate to the Committee the power to make Awards to
Participants and all determinations under the Plan with respect thereto.
Section 4. Eligibility
All employees of the Company, other than Officers and directors of the
Company, are eligible to be Participants in the Plan.
Section 5. Stock Available for Awards
(a) Subject to adjustment under subsection (b), Awards may be made under the
Plan of Options to acquire not in excess of 600,000 shares of Common Stock.
If any Award in respect of shares of Common Stock expires or is terminated
unexercised or is forfeited for any reason or settled in a manner that
results in fewer shares outstanding than were initially awarded, including
without limitation the surrender of shares in payment for the Award or any
tax obligation thereon, the shares subject to such Award or so surrendered,
as the case may be, to the extent of such expiration, termination,
forfeiture or decrease, shall again be available for award under the Plan.
Common Stock issued through the assumption or substitution of outstanding
grants from an acquired Company shall not reduce the shares available for
Awards under the Plan. Shares of Common Stock issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.
(b) In the event that the Board determines that any stock dividend,
extraordinary cash dividend, creation of a class of equity securities,
recapitalization, reorganization, merger, consolidation, split-up,
spin-off, combination, exchange of shares, warrants or rights offering to
purchase Common Stock at a price substantially below fair market value, or
other similar transaction affects the Common Stock such that an adjustment
is required in order to preserve the benefits or potential benefits
intended to be made available under the Plan, then the Board, shall
equitably adjust any or all of (i) the number and kind of shares in respect
of which Awards may be made under the Plan, (ii) the number and kind of
shares subject to outstanding Awards, and (iii) the award, exercise or
conversion price with respect to any of the foregoing, and if considered
appropriate, the Board may make provision for a cash payment with respect
to an outstanding Award, provided that the number of shares subject to any
Award shall always be a whole number.
Section 6. Stock Options
(a) Subject to the provisions of the Plan, the Board may award Nonqualified
Stock Options and determine the number of shares to be covered by each
Option, the Option Price therefor and the conditions and limitations
applicable to the exercise of the Option.
(b) The Board shall establish the Option Price at the time each Option is
awarded.
(c) Each Option shall be exercisable at such times and subject to such terms
and conditions as the Board may specify in the applicable Award or
thereafter. The Board may impose such conditions with respect to the
exercise of Options, including conditions relating to applicable federal or
state securities laws, as it considers necessary or advisable.
(d) No shares shall be delivered pursuant to any exercise of an Option until
payment in full of the Option Price therefor is received by the Company.
Such payment may be made in whole or in part in cash or, to the extent
permitted by the Board at or after the award of the Option, by delivery of
a note or shares of Common Stock owned by the optionholder, including
restricted stock, valued at their Fair Market Value on the date of
delivery, by the reduction of the shares of Common Stock that the
optionholder would be entitled to receive upon exercise of the Option, such
shares to be valued at their Fair Market Value on the date of exercise,
less their Option Price (a so-called "cashless exercise"), or such other
lawful consideration as the Board may determine. In addition, an
optionholder may engage in a successive exchange (or series of exchanges)
in which the shares of Common Stock that such optionholder is entitled to
receive upon the exercise of an Option may be simultaneously utilized as
payment for the exercise of an additional Option or Options.
(e) The Board may provide for the automatic award of an Option upon the
delivery of shares to the Company in payment of an Option for up to the
number of shares so delivered.
Section 7. General Provisions Applicable to Awards
(a) Documentation. Each Award under the Plan shall be evidenced by a writing
delivered to the Participant specifying the terms and conditions thereof
and containing such other terms and conditions not inconsistent with the
provisions of the Plan as the Board considers necessary or advisable to
achieve the purposes of the Plan or comply with applicable tax and
regulatory laws and accounting principles.
(b) Board Discretion. The terms of each Award need not be identical, and the
Board need not treat Participants uniformly. Except as otherwise provided
by the Plan or a particular Award, any determination with respect to an
Award may be made by the Board at the time of award or at any time
thereafter. Without limiting the foregoing, an Award may be made by the
Board, in its discretion, to any 401(k), savings, pension, profit sharing
or other similar plan of the Company in lieu of or in addition to any cash
or other property contributed or to be contributed to such plan.
(c) Settlement. The Board shall determine whether Awards are settled in whole
or in part in cash, Common Stock, other securities of the Company, Awards
or other property. The Board may permit a Participant to defer all or any
portion of a payment under the Plan, including the crediting of interest on
deferred amounts denominated in cash and dividend equivalents on amounts
denominated in Common Stock.
(d) Termination of Employment. The Board shall determine the effect on an Award
of the disability, death, retirement or other termination of employment of
a Participant and the extent to which, and the period during which, the
Participant's legal representative, guardian or Designated Beneficiary may
receive payment of an Award or exercise rights thereunder.
(e) Change in Control. In order to preserve a Participant's rights under an
Award in the event of a change in control of the Company, the Board in its
discretion may, at the time an Award is made or at any time thereafter,
take one or more of the following actions: (i) provide for the acceleration
of any time period relating to the exercise of the Award, (ii) provide for
the purchase of the Award upon the Participant's request for an amount of
cash or other property that could have been received upon the exercise of
the Award had the Award been currently exercisable, (iii) adjust the terms
of the Award in a manner determined by the Board to reflect the change in
control, (iv) cause the Award to be assumed, or new rights substituted
therefor, by another entity, or (v) make such other provision as the Board
may consider equitable and in the best interests of the Company.
(f) Withholding. The Participant shall pay to the Company, or make provision
satisfactory to the Board for payment of, any taxes required by law to be
withheld in respect of Awards under the Plan no later than the date of the
event creating the tax liability. In the Board's discretion, such tax
obligations may be paid in whole or in part in shares of Common Stock,
including shares retained from the Award creating the tax obligation,
valued at their Fair Market Value on the date of delivery. The Company and
its affiliates may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind otherwise due to the Participant.
(g) Amendment of Award. The Board may amend, modify or terminate any
outstanding Award, including substituting therefor another Award of the
same or a different type, changing the date of exercise, provided that the
Participant's consent to such action shall be required unless the Board
determines that the action, taking into account any related action, would
not materially and adversely affect the Participant.
Section 8. Miscellaneous
(a) No Right To Employment. No person shall have any claim or right to be
granted an Award, and the grant of an Award shall not be construed as
giving a Participant the right to continued employment. The Company
expressly reserves the right at any time to dismiss a Participant free from
any liability or claim under the Plan, except as expressly provided in the
applicable Award.
(b) No Rights As Shareholder. Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
shareholder with respect to any shares of Common Stock to be distributed
under the Plan until he or she becomes the holder thereof.
(c) Governing Law. The provisions of the Plan shall be governed by and
interpreted in accordance with the laws of the Commonwealth of
Massachusetts.
(d) Indemnity. Neither the Board nor the Committee, nor any members of either,
nor any employees of the Company or any parent, subsidiary, or other
affiliate, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this Plan, and the Company hereby agrees
to indemnify the members of the Board, the members of the Committee, and
the employees of the Company and its parent or subsidiaries in respect of
any claim, loss, damage, or expense (including reasonable counsel fees)
arising from any such act, omission, interpretation, construction or
determination to the full extent permitted by law.
