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As filed with the Securities and Exchange Commission on August 8, 2000
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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SUNRISE TELECOM INCORPORATED
(Exact Name of Registrant as Specified in Its Charter)
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Delaware 77-0291197
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
22 Great Oaks Boulevard
San Jose, California 95119
(Address of Principal Executive Offices)
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Sunrise Telecom Incorporated
1993 Stock Option Plan
2000 Stock Plan
2000 Employee Stock Purchase Plan
(Full Title of the Plans)
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Paul Ker-Chin Chang
Chief Executive Officer and President
Sunrise Telecom Incorporated
22 Great Oaks Boulevard
San Jose, California 95119
(Name and Address of Agent For Service)
(408) 363-8000
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111-3143
(415) 392-1122
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=========================================================================================================================
Amount Proposed Proposed Amount of
Title of Securities to be Registered To Be Maximum Offering Maximum Aggregate Registration
Registered (1) Price Per Share (2) Offering Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.001 per share 8,626,905 shares $27.50 $237,234,151 $62,630
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans by reason of any
stock dividend, stock split, recapitalization or other similar transaction
effected without the Registrant's receipt of consideration which results in
an increase in the number of the Registrant's outstanding shares of Common
Stock.
(2) The Proposed Maximum Offering Price Per Share represents a weighted average
of the following estimates calculated in accordance with Rule 457(h) under
the Securities Act of 1933, as amended (the "Securities Act"). With
respect to 2,897,527 shares subject to outstanding options to purchase
Common Stock under the plans described above (collectively, the "Plans"),
the Proposed Maximum Offering Price Per Share is equal to the weighted
average exercise price of $2.69 per share pursuant to Rule 457(h) under the
Securities Act. With respect to 5,729,378 shares of Common Stock available
for future grant under the Plans, the estimated Proposed Maximum Offering
Price Per Share was calculated pursuant to Rules 457(c) and 457(h) under
the Securities Act on the basis of $40.00 per share, the average of the
high and low price of the Common Stock on the Nasdaq National Market on
August 3, 2000.
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the registered securities
will begin as soon as reasonably practicable after such effective date.
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PART I
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 (the "Securities Act")
and the Note to Part I of Form S-8.
PART II
Item 3. Incorporation of Certain Documents by Reference
Sunrise Telecom Incorporated (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's prospectus filed with the Commission pursuant to Rule
424(b) promulgated under the Securities Act filed with the SEC on July
12, 2000, in connection with the Registrant's Registration No. 333-
32070, in which there is set forth the audited financial statements
for the Registrant's fiscal year ended December 31, 1999; and
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") since the end of
the fiscal year covered by the Registrant document referred to in (a)
above.
(c) The Registrant's Registration Statement No. 000-30757 on Form 8-A12G
filed with the SEC on June 6, 2000, in which are described the terms,
rights and provisions applicable to the Registrant's Common Stock.
All documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, 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 this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
("Delaware Law") authorizes a Delaware corporation to indemnify officers,
directors, employees and agents of the corporation, in connection with actual or
threatened actions, suits or proceedings provided that such officer, director,
employee or agent acted in good faith and in a manner such officer reasonably
believed to be in or not opposed to the corporation's best interests, and, for
criminal proceedings, had no reasonable cause to believe his or her conduct was
unlawful. This authority is sufficiently broad to permit indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
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The Registrant's Restated Certificate of Incorporation and By-laws provide for
indemnification of officers and directors to the fullest extent permitted by
Delaware Law. In addition, the Registrant has, and intends in the future to
enter into, agreements to provide indemnification for directors and officers in
addition to that contained in the Restated Certificate of Incorporation and By-
laws.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit
Number Name
------ ----
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 000-30757 on Form
8-A12G, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(c) to this
Registration Statement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in
Exhibit 5.1 to this Registration Statement.
24 Powers of Attorney is included on signature page of this
Registration Statement.
99.1 1993 Stock Option Plan.
99.2 2000 Stock Plan (incorporated by reference from Exhibit No. 10.7
to Registrant's Registration Statement No. 333-32070 on Form S-
1/A filed with the SEC on June 9, 2000).
99.3 Form of Nonstatutory Stock Option Agreement.
99.4 Form of Incentive Stock Option Agreement.
99.5 2000 Employee Stock Purchase Plan (incorporated by reference from
Exhibit No. 10.8 to Registrant's Registration Statement No. 333-
32070 on Form S-1/A filed with the SEC on June 9, 2000).
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 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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
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maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(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) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs 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 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 Commission such indemnification is
against public policy as expressed in the 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 San Jose, State of California on the 7th of August,
2000.
SUNRISE TELECOM INCORPORATED.
(Registrant)
By: /s/ Paul Ker-Chin Chang
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Paul Ker-Chin Chang
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS:
Each of the undersigned directors of Sunrise Telecom Incorporated a Delaware
corporation (the "Company"), hereby constitutes and appoints Paul Ker-Chin Chang
his or her true and lawful attorneys-in-fact, with full power of substitution,
for him or her and in his or her name, place and stead, in his or her capacity
as a director, to execute a Registration Statement or Registration Statements on
Form S-8 under the Securities Act of 1933, as amended, relating to 8,626,905
shares of Common Stock that are issuable under the Sunrise Telecom Incorporated
1993 Stock Option Plan, 2000 Stock Plan, and 2000 Employee Stock Purchase Plan
(the "Plans") and any and all amendments (including post-effective amendments)
to such Registration Statements, and to file such Registration Statements and
any and all amendments thereto, with exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
such attorneys-in-fact 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 or she might or could do in person, and
ratify and confirm all that such attorneys-in-fact or their substitutes may
lawfully do or cause to be done by virtue hereof, and hereby consents to such
registration of the Shares and the issuance thereof pursuant to the terms of the
Plan.
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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
Chairman, President and August 7, 2000
Chief Executive Officer
/s/ Paul Ker-Chin Chang (Principal Executive Officer)
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Paul Ker-Chin Chang
Chief Financial Officer and August 7, 2000
/s/ Peter L. Eidelman Treasurer
--------------------------------- (Principal Accounting Officer)
Peter L. Eidelman
Director August 7, 2000
/s/ Paul A. Marshall
---------------------------------
Paul A. Marshall
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Signature Title Date
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<S> <C> <C>
Director August 7, 2000
/s/ Robert C. Pfeiffer
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Robert C. Pfeiffer
Director
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Patrick Peng-Koon Ang
Director
---------------------------------
Henry P. Huff
Director August 7, 2000
/s/ Jennifer J. Walt
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Jennifer J. Walt
</TABLE>
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EXHIBIT INDEX
Exhibit Page
Number Name Number
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4 Instruments Defining the Rights of Stockholders. Reference is made to
Registrant's Registration Statement No. 000-30757 on Form 8-A12G,
together with any exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c) to this Registration Statement.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit
5.1 to this Registration Statement.
24 Powers of Attorney is included on signature page of this Registration
Statement.
99.1 1993 Stock Option Plan.
99.2 2000 Stock Plan (incorporated by reference from Exhibit No. 10.7 to
Registrant's Registration Statement No. 333-32070 on Form S-1/A filed
with the SEC on June 9, 2000).
99.3 Form of Nonstatutory Stock Option Agreement.
99.4 Form of Incentive Stock Option Agreement.
99.5 2000 Employee Stock Purchase Plan (incorporated by reference from
Exhibit No. 10.8 to Registrant's Registration Statement No. 333-32070
on Form S-1/A filed with the SEC on June 9, 2000).
