================================================================================
As filed with the Securities and Exchange Commission on August 2, 2002
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
ZOOM TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 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)
--------------------------
Zoom Technologies, Inc. 1998 Employee Equity Incentive Plan
(Full Title of Plan)
--------------------------
Frank B. Manning
President and Chief Executive Officer
Zoom Technologies, 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
--------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of to Be Offering Aggregate Registration
Securities to Be Registered Price Offering Fee
Registered Per Share(1) Price(1)
------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Common Stock, $.01 250,000 $0.69 $172,500 $15.87
par value Shares (2)
================================================================================
(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 Technologies, Inc. on the Nasdaq National Market on July 31, 2002.
================================================================================
(2) Includes 250,000 shares of Common Stock issuable under the Zoom
Technologies, Inc. 1998 Employee Equity Incentive Plan. 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.
================================================================================
This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 250,000 shares of the Registrant's Common Stock
reserved for issuance under the Zoom Technologies, Inc. 1998 Employee Equity
Incentive Plan, as amended (the "Plan"). Pursuant to General Instruction E of
Form S-8, except as otherwise provided herein, the contents of this Registration
Statement also incorporates by reference the Registrant's previously filed
Registration Statements on Form S-8 (File Nos. 333-75575, 333-90191 and
333-47188) which registered an aggregate of 950,000 shares issuable under the
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K/A for the fiscal year
ended December 31, 2001 filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Registrant's documents referred to paragraph (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (Registration No.
0-18672), filed on March 4, 2002 under the Exchange Act with the
Securities and Exchange Commission.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the date hereof 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 this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 6. Indemnification
Article Ninth of the Registrant's certificate of incorporation eliminates
the personal liability of directors to the Registrant and its stockholders for
monetary damages for breach of fiduciary duty to the full extent permitted by
Delaware law. Article VII of the Registrant's bylaws provides that the
Registrant may indemnify its officers and directors to the full extent permitted
by the Delaware General Corporation Law. Section 145 of the Delaware General
Corporation Law authorizes a corporation to indemnify directors, officers,
employees and agents of a corporation if such party acted in good faith in a
manner he believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, as determined in
accordance with the Delaware General Corporation Law. Section 145 further
provides that indemnification shall be provided if the party in question is
successful on the merits or otherwise in any proceeding or action.
The Registrant's bylaws also empower it to maintain directors and officers
liability insurance coverage for its directors, officers, employees or agents.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
arising under the Securities Act. The Registrant has purchased a general
liability insurance policy that covers certain liabilities of directors and
officers of the Registrant arising out of claims based upon acts or omissions in
their capacities as directors or officers.
The Registrant has entered into indemnification agreements with its
directors and certain of its officers pursuant to which the Registrant is
contractually obligated to indemnify such persons to the fullest extent
permitted by applicable law.
Item 8. Exhibits.
Number Description
4.1 Certificate of Incorporation, filed as Exhibit 3.1 to the Registrant's
Current Report on Form 8-K dated March 4, 2002.*
4.2 Bylaws of Zoom Technologies, Inc., filed as Exhibit 3.2 to the Registrant's
Current Report on Form 8-K dated March 4, 2002.*
4.3 Specimen Certificate of Common Stock of Zoom Technologies, Inc., filed as
Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated March 4,
2002.*
5 Legal Opinion of Brown Rudnick Berlack Israels LLP.
23.1 Consent of Brown Rudnick Berlack Israels LLP (contained in its opinion
filed as Exhibit 5).
23.2 Consent of KPMG LLP
24 Power of Attorney (included on the Signature Page of this Registration
Statement).
99.1 Zoom Technologies, 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 Securities and Exchange Commission, which are
incorporated by reference herein.
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 August 2,
2002. ZOOM TECHNOLOGIES, INC.
By: /s/ Frank B. Manning
------------------------
Frank B. Manning, President
POWER OF ATTORNEY
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 August 2, 2002
-------------------------- and Chief Executive Officer
Frank B. Manning (Principal Executive Officer)
/s/ Robert A. Crist Principal Financial and August 2, 2002
-------------------------- Accounting Officer
Robert A. Crist
/s/ Peter R. Kramer Director August 2, 2002
--------------------------
Peter R. Kramer
/s/ Bernard Furman Director August 2, 2002
--------------------------
Bernard Furman
/s/ L. Lamont Gordon Director August 2, 2002
--------------------------
L. Lamont Gordon
/s/ J. Ronald Woods Director August 2, 2002
--------------------------
J. Ronald Woods
EXHIBIT INDEX
Exhibit
Number Description
4.1 Certificate of Incorporation, filed as Exhibit 3.1 to the Registrant's
Current Report on Form 8-K dated March 4, 2002.*
4.2 Bylaws of Zoom Technologies, Inc., filed as Exhibit 3.2 to the Registrant's
Current Report on Form 8-K dated March 4, 2002.*
4.3 Specimen Certificate of Common Stock of Zoom Technologies, Inc., filed as
Exhibit 4.1 to the Registrant's Current Report on Form 8-K dated March 4,
2002.*
5 Legal Opinion of Brown Rudnick Berlack Israels LLP.
23.1 Consent of Brown Rudnick Berlack Israels LLP (contained in its opinion
filed as Exhibit 5).
23.2 Consent of KPMG LLP
24 Power of Attorney (included on the Signature Page of this Registration
Statement).
99.1 Zoom Technologies, 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 Securities and Exchange Commission, which are
incorporated by reference herein.
EXHIBIT 5
August 2, 2002
Zoom Technologies, Inc.
207 South Street
Boston, MA 02111
RE: Registration Statement on Form S-8
Ladies and Gentlemen:
We are general counsel to Zoom Technologies, Inc., a Delaware 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 250,000 shares
of the Company's Common Stock, $.01 par value (the "Shares") that may be issued
pursuant to options granted under the Company's 1998 Employee Equity Incentive
Plan, as amended (the "1998 Plan").
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 Certificate of Incorporation of the Company as in effect on
the date hereof;
2. a copy of the Bylaws of the Company as in effect on the date hereof;
3. the corporate records of the Company relating to the proceedings of
stockholders and directors of the Company;
4. a certificate of U.S. Stock Transfer Corporation, the Company's transfer
agent, as to the issued and outstanding shares of the Company;
5. an Officer's Certificate as to certain matters;
6. the 1998 Plan; and
7. the Registration Statement.
For purposes of this opinion, we have assumed without any investigation:
(1) the legal capacity of each natural person; (2) the genuineness of each
signature; (3) the completeness of each document submitted to us as an original
and the conformity with the original of each document submitted to us as a copy;
and (4) the completeness, accuracy and proper indexing of all governmental
records.
We have not, except as specifically noted herein, made any independent
review or investigation of orders, judgments, rules or other regulations or
decrees by which the Company or any of its property may be bound. Nor have we
made any independent investigation as to the existence of actions, suits,
investigations or proceedings, if any, pending or threatened against the
Company.
Our opinion contained herein is limited to the laws of The Commonwealth of
Massachusetts, the General Corporation Law of the State of Delaware, including
the statutory provisions, all applicable provisions of the Delaware
Constitution, and reported judicial decisions interpreting these laws, and the
federal law of the United States of America.
Our opinion hereafter expressed is based solely upon: (1) our review of the
Documents; (2) discussions with those of our 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
and conditions of the 1998 Plan, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm wherever it appears in
the Registration Statement.
Very truly yours,
/s/ Brown Rudnick Berlack Israels LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Zoom Technologies, Inc.
We consent to the use of our reports incorporated herein by reference and
to the references to our firm in the registration statement.
/s/ KPMG LLP
Boston, Massachusetts
August 2, 2002
Exhibit 99.1
ZOOM TECHNOLOGIES, INC.
1998 EMPLOYEE EQUITY INCENTIVE PLAN
AS AMENDED ON JUNE 11, 2002
Section 1. Name and Purpose
This plan shall be known as the Zoom Technologies, 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
Technologies, 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, $.01 par value, of the
Company.
(f) "Company" means Zoom Technologies, Inc. and any business entity in which
Zoom Technologies, 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 1,200,000 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 State of Delaware.
(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.
(e) Amendment of Plan. The Board may amend, suspend or terminate the
Plan or any portion thereof at any time.