As filed with the Securities and Exchange Commission on September 15, 2003
Registration No. 333-____________
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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, California 94502
(510) 864-8800
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
UTSTARCOM, INC. 1997 STOCK PLAN
UTSTARCOM, INC. 2003 NONSTATUTORY STOCK OPTION PLAN
ROLLINGSTREAMS SYSTEMS, LTD. 2001 STOCK PLAN
(Full title of the Plans)
________________
Hong Liang Lu
President and Chief Executive Officer
UTSTARCOM, INC.
1275 Harbor Bay Parkway, Suite 100
Alameda, California 94502
(510) 864-8800
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
________________
Copies to:
Carmen Chang, Esq.
Shearman & Sterling LLP
1080 Marsh Road
Menlo Park, CA 94025
(650) 838-3600
________________
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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
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Common Stock, $0.00125 par value per
share, of UTStarcom, Inc. 1,718,239 shares(2) $29.85(3) $51,289,434.15 $4,149.32
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2,653,873 shares(2) $35.41(4) $93,973,642.93 $7,602.47
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1,497,200 shares $28.55(5) $42,745,060 $3,458.08
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2,800 shares $35.41(4) $99,148 $8.02
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12,742 shares $1.57(5) $20,004.94 $1.62
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10,633 shares $35.41(4) $376,514.53 $30.46
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TOTAL 5,895,487 shares - - $15,249.97
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(1) This registration statement on Form S-8 (this "Registration Statement")
also covers any additional shares of common stock, $0.00125 par value per
share (the "Common Stock"), of UTStarcom, Inc. (the "Registrant") that
become issuable under the UTStarcom, Inc. 1997 Stock Plan (the "1997
Plan"), the UTStarcom, Inc. 2003 Nonstatutory Stock Option Plan (the "2003
Plan") and the options granted under the RollingStreams Systems, Ltd. 2001
Stock Plan that were assumed by the Registrant (the "Assumed Options"),
including the earnout shares that become issuable under the Assumed Options
(the "Earnout Shares"), being registered pursuant to this Registration
Statement by reason of any stock dividend, stock split, 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) The Registrant has previously filed registration statements for the 1997
Plan on Forms S-8 under File No. 333-93069 with the Securities and Exchange
Commission (the "Commission"). This Registration Statement serves to
register 4,372,112 additional shares of Common Stock for issuance under the
1997 Plan.
(3) The proposed maximum offering price per share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act"), solely for the purpose of calculating the
registration fee, based on the per share weighted average exercise price of
the 1,718,239 shares of Common Stock subject to outstanding but unexercised
options granted under the 1997 Plan.
(4) The proposed maximum offering price per share as to the 2,667,306 shares of
Common Stock authorized for issuance pursuant to future awards granted
under the 1997 Plan, 2003 Plan and future issuances of Earnout Shares has
been estimated in accordance with Rule 457(c) and Rule 457(h) under the
Securities Act, solely for the purpose of calculating the registration fee,
based upon the average of the bid and asked price of the Common Stock as
reported on the Nasdaq National Market on September 10, 2003.
(5) The proposed maximum offering price per share has been estimated in
accordance with Rule 457(h) under the Securities Act, solely for the
purpose of calculating the registration fee, based on the per share
exercise price of 1,509,942 shares of Common Stock subject to outstanding
but unexercised options granted under the 2003 Plan and the Assumed
Options.
2
Explanatory Note
UTStarcom, Inc., a Delaware corporation (the "Registrant"), hereby
files this Registration Statement on Form S-8 (this "Registration Statement")
relating to up to (i) 4,372,112 shares of common stock, par value $0.00125 per
share, of the Registrant (the "Common Stock") issuable by the Registrant in
connection with the exercise of options that have been granted, and that are
available for issuance pursuant to future awards, under the UTStarcom, Inc. 1997
Stock Plan (the "1997 Plan"), (ii) 1,500,000 shares of Common Stock issuable by
the Registrant in connection with the exercise of options that have been
granted, and that are available for issuance pursuant to future awards, under
the UTStarcom, Inc. 2003 Nonstatutory Stock Option Plan (the "2003 Plan"), (iii)
12,742 shares of Common Stock issuable by the Registrant in connection with the
exercise of options that have been granted under the RollingStreams Systems,
Ltd. 2001 Stock Plan (the "RollingStreams Plan") and (iv) 10,633 shares of
Common Stock available for future issuance as earnout shares under the Assumed
Options (the "Earnout Shares").
On June 30, 2003, RollingStreams Systems, Ltd., a Cayman Islands
company ("RollingStreams"), became a wholly owned subsidiary of the Registrant
in connection with the transfer by the holders of shares of common stock, par
value $0.0001 per share, of RollingStreams (the "RollingStreams Stock") in
exchange for shares of the Registrant (the "Share Exchange"), pursuant to the
Share Exchange Agreement, dated as of June 30, 2003 (the "Share Exchange
Agreement"), by and among the Registrant, RollingStreams, and each of the
shareholders of RollingStreams. At the time the Share Exchange was consummated
(the "Effective Time"), among other actions, each issued and outstanding share
of RollingStreams Stock was converted into .02549 (the "Exchange Ratio") of a
share of Common Stock. Pursuant to the Share Exchange Agreement, the outstanding
stock options granted under the RollingStreams Plan are no longer exercisable
for shares of RollingStreams Stock but, instead, are exercisable for shares of
Common Stock based on the Exchange Ratio (the "Assumed Options"), in accordance
with the provisions of the Share Exchange Agreement.
In addition, pursuant to the Share Exchange Agreement, a holder of an
Assumed Option will have the opportunity to receive Earnout Shares issued in
payment of the Earnout Amount (as this term is defined in the Share Exchange
Agreement) to securityholders of RollingStreams in connection with the Share
Exchange. For each share of Common Stock subject to an Assumed Option, a holder
of an Assumed Option will be entitled to receive the same number of Earnout
Shares paid and issued with respect to each outstanding share of Common Stock
under the Share Exchange Agreement, but only to the extent and at the time that
the holder of the Assumed Option has exercised the Assumed Option and has
received the underlying shares of Common Stock with respect to which he is
entitled to receive Earnout Shares.
3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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 and the "Note" to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Information Incorporated by Reference.
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The following documents previously filed by the Registrant with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference in this Registration Statement:
(a) the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2002, filed February 21, 2003, as amended
September 8, 2003;
(b) the Registrant's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 2003 (filed May 12, 2003), as amended September 8,
2003, and for the quarter ended June 30, 2003 (filed August 4,
2003), and the Registrant's Current Reports on Form 8-K (i) dated
March 6, 2003 (filed March 7, 2003), (ii) dated and filed March 7,
2003, (iii) dated May 23, 2003 (filed June 4, 2003, as amended on
July 10, 2003) and (iv) dated and filed July 10, 2003; and
(c) the description of the Registrant's Common Stock as set forth in
the Registrant's Registration Statement on Form 8-A, filed with
the Commission on February 23, 2000.
All other 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 to this Registration Statement, 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. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Carmen Chang, a member of Shearman & Sterling LLP, is Assistant
Secretary of the Registrant. Shearman & Sterling LLP is corporate counsel to the
Registrant.
Item 6. Indemnification of Directors and Officers.
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Under Section 145 of the Delaware General Corporation Law, the
Registrant may indemnify any person who is, or is threatened to be made, a party
to any threatened, pending or completed legal action, suit or proceeding,
whether civil, criminal, administrative or investigative other than action by or
on behalf of the Registrant, by reason of the fact that such person is or was
one of its officers or directors, or is or was serving at the Registrant's
request as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses including attorneys' fees,
judgements, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer or director acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the Registrant's best
interests, and, for criminal proceedings, had no reasonable cause to believe his
or her conduct was illegal. Under Delaware law, the Registrant may also
indemnify officers and directors,
II-1
against the expenses which such officer or director actually and reasonably
incurred, in an action by or on behalf of the Registrant under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to us.
The Registrant's certificate of incorporation contains a provision to
limit the personal liability of its directors for violations of their fiduciary
duty. This provision eliminates each director's liability to the Registrant or
its stockholders for monetary damages to the fullest extent permitted under
Delaware law. The effect of this provision is to eliminate the personal
liability of directors for monetary damages for actions involving a breach of
their fiduciary duty of care, including any such actions involving gross
negligence.
The Registrant's bylaws provide for indemnification of its officers and
directors to the fullest extent permitted by law.
The Registrant has also entered into indemnification agreements with
its directors and officers. The indemnification agreements provide
indemnification to its directors and officers under certain circumstances for
acts or omissions which may not be covered by directors' and officers' liability
insurance. The Registrant has also obtained directors' and officers' liability
insurance, which insures against liabilities that its directors and officers may
incur in such capacities.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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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.
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(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 of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
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 this Registration Statement.
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(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 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 this 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 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, 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 September 15, 2003.
UTSTARCOM, INC.
By: /s/ Hong Liang Lu
---------------------------------
Hong Liang Lu
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints each of Hong Liang Lu and Michael Sophie
as such person's true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any amendments to this
Registration Statement, including post-effective amendments, and registration
statements filed pursuant to Rule 462 under the Securities Act, and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, and does hereby grant unto each said attorney-in-fact and agent
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 such person might or could do in person, hereby
ratifying and confirming all that each of said attorney-in-fact and agent, or
his substitute therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, 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, President September 15, 2003
Hong Liang Lu (Principal Executive Officer) and Director
/s/ Michael Sophie
-------------------------------- Chief Financial Officer (Principal September 15, 2003
Michael Sophie Financial and Accounting Officer)
/s/ Masayoshi Son
-------------------------------- Director September 15, 2003
Masayoshi Son
SIGNATURE TITLE DATE
-------------------------------- --------------------------------------------- -------------------
/s/ Ying Wu
-------------------------------- Director September 15, 2003
Ying Wu
/s/ Betsy Atkins
-------------------------------- Director September 15, 2003
Betsy Atkins
/s/ Thomas J. Toy
-------------------------------- Director September 15, 2003
Thomas J. Toy
/s/ Larry D. Horner
-------------------------------- Director September 15, 2003
Larry D. Horner
INDEX TO EXHIBITS
Exhibit Number Exhibit Document
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4.1 Certificate of Incorporation of the Registrant (incorporated by
reference to Exhibit 3.2 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-93069), filed with the
Commission on February 22, 2000).
4.2 Bylaws of the Registrant (incorporated by reference to Exhibit
3.4 of the Registrant's Registration Statement on Form S-1 (Reg.
No. 333-93069), filed with the Commission on February 22, 2000).
4.3 UTStarcom, Inc. 1997 Stock Plan, as amended (incorporated by
reference to Exhibit 10.4 of the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-93069), filed with the
Commission on February 22, 2000).
4.4* UTStarcom, Inc. 2003 Nonstatutory Stock Option Plan.
4.5* RollingStreams Systems, Ltd. 2001 Stock Plan and ancillary
agreements and documentation thereto.
5.1* Opinion of Shearman & Sterling LLP, Counsel to the Registrant,
regarding the legality of securities being registered.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of Deloitte & Touche LLP.
23.3* Consent of Shearman & Sterling LLP (contained in the opinion
filed as Exhibit 5.1 hereto).
24.1 Power of Attorney (contained in the signature page to this
Registration Statement).
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* Filed herewith