As filed with the Securities and Exchange Commission on December 3, 2004
Registration No. 333-______
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
LANTRONIX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 33-0362767
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
15353 BARRANCA PARKWAY
IRVINE, CALIFORNIA 92618
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
MARC NUSSBAUM
CHIEF EXECUTIVE OFFICER
LANTRONIX, INC.
15353 BARRANCA PARKWAY
IRVINE, CALIFORNIA 92618
(949) 453-3990
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------------
Copies to:
JOHN T. SHERIDAN, ESQ. VINCENT J. ROTH, ESQ.
JOHN TURNER, ESQ. LANTRONIX, INC.
WILSON, SONSINI, GOODRICH & ROSATI, PC 15353 BARRANCA PARKWAY
650 PAGE MILL ROAD IRVINE, CALIFORNIA 92618
PALO ALTO, CALIFORNIA 94304-1050 (949) 453-3990
(650) 493-9300
----------------------
CALCULATION OF REGISTRATION FEE
===================================================================================================
Title of Securities Proposed Maximum Proposed Maximum Amount of
To be registered Amount to be Offering Price Aggregate Offering Registration
Registered(1) per share(2) Price(1) Fee(1)
---------------------------------------------------------------------------------------------------
Common Stock, $0.0001 par value, 750,000 $0.99 $742,500 $94.07
to be issued under the 2000
Employee Stock Purchase Plan
---------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 2000 Employee
Stock Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction affected without the receipt
of consideration that increases the number of the Registrant's outstanding
shares of Common Stock.
(2) The Proposed Maximum Offering Price Per Share of $0.99 per share is
estimated in accordance with Rules 457(c) and 457(h) under the Securities
Act of 1933, as amended ("Securities Act"), solely for the purpose of
computing the amount of the registration fee. The amount of the filing fee,
calculated in accordance with Section 13(e) of the Securities Exchange Act
of 1934, as amended, equals $126.70 for each $1,000,000 of the value of the
transaction. The computation is based upon the average of the high and low
price of the Common Stock as reported on the Nasdaq National Market on
December 1, 2004, the specified date within five business days of the
filing date, because the price at which the options to be granted in the
future may be exercised is not currently determinable.
===================================================================================================
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Explanatory Note:
This Registration Statement is filed with respect to additional shares of
common stock that may be issued under the Registrant's 2000 Employee Stock
Purchase Plan as a result of a stockholder approved increase in the number of
authorized shares for issuance under the plan. The original offer and sale of
750,000 shares of common stock issuable under this plan was previously
registered on a Registration Statement on Form S-8 filed on September 5, 2000
(File No. 333-45182) (the "Previous Form S-8"). Unless otherwise specified,
capitalized terms herein shall have the meanings ascribed to them in the
Previous Form S-8.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration Statement
and into the Prospectuses relating to this Registration Statement pursuant to
Rule 428 the following documents and information previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
June 30, 2004, filed pursuant to Section 13 of the Exchange Act, as amended (the
"Exchange Act");
(b) All other reports and information filed pursuant to Sections 13 or
15(d) of the Exchange Act since the end of the fiscal year covered by
Registrant's Annual Report referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, filed on August 2, 2000, filed
pursuant to Section 12(g) of the Exchange Act.
All documents subsequently filed by the Company 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 hereby have been sold or which deregisters all securities 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.
The documents incorporated by reference herein contain forward-looking
statements that involve risks and uncertainties. The Company's actual results
may differ significantly from the results discussed in the forward-looking
statements. Factors that might cause such a difference include, but are not
limited to, the risks identified in the respective documents incorporated by
reference. You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
2
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law
provides that directors of a company will not be personally liable for monetary
damages for breach of their fiduciary duties as directors, except for liability
(i) for any breach of their duty of loyalty to the company or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the Delaware General Corporation Law, or (iv) for any transaction from
which the director derived an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
officers and directors and may indemnify its employees and other agents to the
fullest extent permitted by law. The Registrant believes that indemnification
under its Bylaws covers at least negligence and gross negligence on the part of
indemnified parties. The Registrant's Bylaws also permit it to secure insurance
on behalf of any officer, director, employee or other agent for any liability
arising our of his or her actions in such capacity, regardless of whether the
Bylaws would permit indemnification.
The Registrant has entered into agreements to indemnify its directors and
officers, in addition to the indemnification provided for in the Registrant's
Bylaws. These agreements, among other things, indemnify the Registrant's
directors and officers for certain expenses (including attorneys' fees),
judgments, fines and settlement amounts incurred by any such person in any
action or proceeding, including any action by or in the right of the Registrant,
arising out of such person's services as a director or officer of the
Registrant, any subsidiary of the Registrant or any other company or enterprise
to which the person provides services at the request of the Registrant. The
Registrant believes that these provisions and agreements are necessary to
attract and retain qualified persons as directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
------- -----------------------------------------------------------------------------------------------
4.1 2000 Employee Stock Purchase Plan (as amended effective November 18, 2004)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC, as to legality of securities being registered.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
3
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 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.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
4
SIGNATURES
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 Irvine, State of California, on this December 3,
2004.
LANTRONIX, INC.
By: /s/ Marc H. Nussbaum
--------------------------------
Marc H. Nussbaum
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marc H. Nussbaum and James W. Kerrigan,
jointly and severally, as his/her attorneys-in-fact, each with the power of
substitution, for him/her 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/her substitute or substitutes, may 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/ Marc H. Nussbaum President and Chief December 3, 2004
-------------------- Executive Officer (Principal
Marc H. Nussbaum Executive Officer)
/s/ James W. Kerrigan Chief Financial Officer December 3, 2004
-------------------- (Principle Financial Officer
James W. Kerrigan and Accounting Officer)
/s/ H.K. Desai Chairman of the Board of December 3, 2004
-------------------- Directors
H.K. Desai
/s/ Kathryn Braun Lewis Director December 3, 2004
--------------------
Kathryn Braun Lewis
/s/ Howard T. Slayen Director December 3, 2004
--------------------
Howard T. Slayen
/s/ Thomas W. Burton Director December 3, 2004
--------------------
Thomas W. Burton
5
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------- -----------------------------------------------------------------------------------------------
4.1 2000 Employee Stock Purchase Plan (as amended effective November 18, 2004)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, PC, as to legality of securities being registered.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page 5).
--------------------------------------------------------------------------------------------------------
6