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As filed with the Securities and Exchange Commission on August 13, 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
--------------------------
ZOOM TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 51-0448969
(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. 1991 Directors Stock Option Plan, as amended
(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 Berlack Israels LLP
One Financial Center, Boston, Massachusetts 02111
(617) 856-8200
--------------------------
CALCULATION OF REGISTRATION FEE
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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)
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Common Stock, $.01 252,000 $1.18 $297,360 $24.06
par value Shares (2)
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(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 Small Cap Market on August 11, 2003.
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(2) Includes 252,000 shares of Common Stock issuable under the Zoom
Technologies, Inc. 1991 Directors Stock Option 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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This Registration Statement on Form S-8 is being filed for the purpose of
registering an additional 252,000 shares of the Registrant's Common Stock
reserved for issuance under the Zoom Technologies, Inc. 1991 Directors Stock
Option 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 No. 333-90930 and File No. 333-42834)
which registered an aggregate of 198,000 shares issuable under the Plan.
Following the registration of the additional 252,000 shares under this
registration statement, a total of 450,000 shares of the Registrant's Common
Stock will be registered 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 year ended
December 31, 2002 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 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. 1991 Directors Stock Option 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 13,
2003.
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 7, 2003
-------------------------- and Chief Executive Officer
Frank B. Manning (Principal Executive Officer)
/s/ Robert A. Crist Principal Financial and August 7, 2003
-------------------------- Accounting Officer
Robert A. Crist
/s/ Peter R. Kramer Director August 7, 2003
--------------------------
Peter R. Kramer
/s/ Bernard Furman Director August 1, 2003
--------------------------
Bernard Furman
/s/ L. Lamont Gordon Director August 5, 2003
--------------------------
L. Lamont Gordon
/s/ J. Ronald Woods Director August 1, 2003
--------------------------
J. Ronald Woods
EXHIBIT INDEX
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. 1991 Directors Stock Option 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 13, 2003
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 252,000 shares
of the Company's Common Stock, $.01 par value (the "Shares") that may be issued
pursuant to options granted under the Company's 1991 Directors Stock Option
Plan, as amended (the "1991 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 1991 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
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Zoom Technologies, Inc.
We consent to the use of our report incorporated by reference herein.
/s/ KPMG LLP
Boston, Massachusetts
August 13, 2003
Exhibit 99.1
ZOOM TECHNOLOGIES, INC.
1991 DIRECTORS STOCK OPTION PLAN, AS AMENDED
THROUGH JUNE 13, 2003
ARTICLE 1 - Purpose
This 1991 Directors Stock Option Plan, as amended (the "Plan") is intended
to enable Zoom Technologies, Inc. (the "Company") to attract and retain the
services of experienced and knowledgeable Directors for the benefit of the
Company and its stockholders by providing them with opportunities to purchase
stock in the Company pursuant to the exercise of options.
ARTICLE 2 - Administration of the Plan
The Plan shall be administered by the Board of Directors (the "Board") of
the Company. The Board may from time to time adopt such rules and regulations
for carrying out the Plan as it may determine in its sole discretion. No member
of the Board shall be liable with respect to any action or determination made in
good faith regarding the Plan or any option granted under it. The Board shall
have no discretion with respect to the selection of recipients of grants, or the
timing, pricing or the amount of stock option grants under the Plan.
ARTICLE 3 - Eligible Directors
Options shall be granted to each Director of the Company in accordance with
Article 5 hereof, except any Director who is a full-time employee or full-time
officer of the Company or its subsidiaries shall not be eligible to receive
options under the Plan.
ARTICLE 4 - Stock
The stock subject to the options granted hereunder shall be shares of the
Company's authorized but unissued shares of common stock or shares of common
stock reacquired by the Company including shares purchased in the open market
("Common Stock"). The maximum number of shares which are hereby reserved for
issuance and may be issued pursuant to this Plan is 450,000, subject to
adjustment as provided in Article 13. In the event any option granted under the
Plan shall expire, terminate or be cancelled for any reason without having been
exercised in full, or shall cease for any reason to be exercisable in whole or
in part, the unpurchased shares subject thereto, to the extent the option ceases
to be exercisable, shall again be available under the Plan.
ARTICLE 5 - Grant of Options
Each eligible director shall automatically be granted an option to purchase
12,000 shares of Common Stock on each July 10 and January 10 of each year
beginning on July 10, 2003, at a price per share determined in accordance with
Article 6 hereof. No option shall be granted hereunder to a person who ceases to
be a Director prior to the date on which such grant is to be made.
ARTICLE 6 - Price of Options
The price per share specified in each option granted under the Plan shall
be the fair market value per share of Common Stock on the date the option is
granted. Fair market value shall mean the closing price per share for the
Company's Common Stock on the Nasdaq National Market on the date of the grant or
if such Common Stock is not listed on the Nasdaq National Market, then on such
other stock exchange or market quotation system where such shares may from time
to time be listed on the date of the grant, subject to any applicable regulatory
rules.
ARTICLE 7 - Duration of Options
Subject to earlier termination as provided in Articles 9 and 10, each
option shall expire on the last day of the second year from the date of grant of
such option.
ARTICLE 8 - Restrictions on Exercise of Options
Subject to the provisions of Articles 9 through 12, each option granted
under of Article 5 shall become exercisable six months from the date on which
each such option is granted; provided that no option shall be exercisable prior
to approval of this Plan by the stockholders of the Company.
ARTICLE 9 - Termination of Serivce as a Director
If an optionee ceases to be a Director of the Company for any reason other
than death or disability (within the meaning of Section 105(d) (4) of the
Internal Revenue Code of 1986, as amended) his options shall terminate on the
date one month following the date of such cessation (but not later than their
specified expiration date).
ARTICLE 10 - Disability: Death
If an optionee ceases to be a Director as a result of disability, his
options shall terminate on the date one year following the date of such
cessation (but not later than their specified expiration date).
If an optionee dies while a Director or during the one month period
referred to in Article 9 or the one year period referred to above in this
Article 10, his options may be exercised to the extent they were exercisable on
the date of his death, by his estate, or duly appointed representative, or
beneficiary who acquires the options by will or by the laws of descent and
distribution, and each such option shall terminate on the date one year
following the date of the optionee's death (but not later than its specified
expiration date).
ARTICLE 11 - Assignability
No option shall be assignable or transferable by the optionee except by
will or by the laws of descent and distribution, and during the lifetime of the
optionee each option shall be exercisable only by him.
ARTICLE 12 - Terms and Conditions of Options
Options shall be evidenced by instruments (which need not be identical) in
such forms as the Board may from time to time approve. Such instruments shall
conform to the terms and conditions set forth in Articles 6 through 11. The
Company shall not be obligated to deliver any shares unless and until, in the
opinion of the Company's counsel, all applicable United States, and state laws
and regulations have been complied with, nor, in the event the outstanding
common stock is at the time listed upon any stock exchange, unless and until the
shares to be delivered have been listed, if necessary, or authorized to be added
to the list upon official notice of issuance, upon such exchange, nor unless and
until all other legal matters in connection with the issuance and delivery of
shares have been approved by the Company's counsel. Without limiting the
generality of the foregoing, the Company may require from the optionee such
investment representation or such agreement, if any, as counsel for the Company
may consider necessary in order to comply with the Securities Act of 1933. The
Company shall use its best efforts to effect any such compliance and listing,
and the optionee shall take any action reasonably requested by the Company in
such regard.
ARTICLE 13 - Adjustments
Upon the happening of any of the following described events, an optionee's
rights under options granted hereunder shall be adjusted as hereinafter
provided:
A. in the event shares of Common Stock of the Company shall be subdivided or
combined into a greater or smaller number of shares or if, upon a merger,
consolidation, reorganization, split-up, liquidation, combination,
recapitalization or the like of the Company, the shares of the Company's
Common Stock shall be exchanged for other securities of the Company or of
another corporation, each optionee shall be entitled to purchase, subject
to the terms and conditions herein stated and to the terms and conditions
of each individual option, such number of shares of Common Stock or amount
of other securities of the Company or such other corporation as were
exchangeable for the number of shares of Common Stock of the Company which
such optionee would have been entitled to purchase except for such action,
and appropriate adjustments shall be made in the purchase price per share
to reflect such subdivision, combination, or exchange; and
B. in the event the Company shall issue any of its shares as a stock dividend
upon or with respect to the shares of stock of the class which shall at the
time be subject to option hereunder, each optionee upon exercising such an
option shall be entitled to receive (for the purchase price paid upon such
exercise) the shares as to which he is exercising his option and, in
addition thereto (at no additional cost), such number of shares of the
class or classes in which such stock dividend or dividends were declared or
paid, and such amount of cash in lieu of fractional shares, as he would
have received if he had been the holder of the shares as to which he is
exercising his option at all times between the date of the granting of such
option and the date of its exercise.
Upon the happening of any of the foregoing events, the class and aggregate
number of shares set forth in Article 4 hereof which are reserved for issuance
pursuant to the Plan or are subject to options which have heretofore been or may
hereafter be granted under the Plan shall also be appropriately adjusted to
reflect the events specified in paragraphs A and B above
ARTICLE 14 - Exercise of Options
An optionee shall exercise an option (or any part or installment thereof)
by giving written notice to the Company at its principal office address,
identifying the option being exercised, specifying the number of shares as to
which such option is being exercised and accompanied by fully payment of the
option Price therefor either (1) in US dollars, in cash or by certified check or
bank draft, or (2) in Common Stock of the Company owned by the optionee (and
held at least one year if acquired pursuant to the exercise of any stock option
granted by the Company to the optionee whether under the Plan or otherwise)
having a fair market value (as determined by the Board as of the date
immediately preceding the date on which the option is exercised and in
accordance with all applicable laws and all applicable rules and policies of
relevant securities regulatory authorities) equal to, or a fraction of a share
less than, such purchase price (and if such shares of Common Stock are equal to
a fraction of a share less than such purchase price, then the option shall pay
any balance remaining in cash), or (3) in a combination of such Common Stock (as
described above) and cash, certified check or bank draft. However if the
optionee desires to tender Common Stock in payment of any part of the option
Price as contemplated in (2) or (3) above, the optionee, before giving notice of
exercise as aforesaid, shall first give written notice (addressed to the
principal office of the Company specifying the number of shares which the
optionee wishes to tender) that the optionee proposes to tender Common Stock in
order to exercise his option. The Board shall notify the optionee whether the
proposed tender is acceptable to the Board within ten day of receipt of notice
of the proposed tender. The acceptance of any tender of Common Stock by an
optionee pursuant to (2) or (3) in payment of the option Price shall be subject
to the absolute discretion of the Board, who may only accept the tender of such
Common Stock in accordance with, and subject to the requirements of, all
applicable laws and all applicable rules and policies of relevant securities
regulatory authorities. If the proposed tender is acceptable, the optionee must
then give written notice of the exercise of his option as aforesaid within five
days of receipt of notice of the Board that the proposed tender is acceptable.
If the proposed tender is not acceptable and the optionee, at that time, still
desires to exercise this option, he may do so by giving written notice of
exercise of his option as aforesaid and paying the option Price in cash or by
certified check or bank draft. The acceptance by the Company of Common Stock
tendered in payment of the option Price shall be treated as a purchase of those
shares by the Company.
Unless the Board otherwise determines, the holder of an option shall have
no rights as a shareholder with respect to the shares issued upon exercise of
the option until the date of issuance of the certificate for those shares to
him. Unless the Board otherwise determines, no adjustment will be made for
dividends or similar rights for which the record date occurs after the exercise
of the option but before the date such certificates for shares is issued. In no
case may a fraction of a share be purchased or issued under the Plan.
ARTICLE 15 - Termination and Amendments to Plan
The Plan shall expire on April 30, 2011 (except as to options outstanding
on that date). Options may be granted under the Plan prior to the date of
stockholder approval of the Plan but such options shall be granted subject to
such approval. The Board may terminate or amend the Plan in any respect at any
time, except that, without the approval of the stockholders (a) the total number
of shares that may be issued under the Plan may not be increased (except by
adjustment pursuant to Article 13); (b) the provisions of Article 3, regarding
eligibility, may not be modified; (c) the provisions of Article 5, relating to
the grants of options, may not be modified; (d) the provisions of Article 6,
regarding the exercise price at which shares may be offered pursuant to options,
may not be modified (except by adjustment pursuant to Article 13); and (e) the
expiration date of the Plan may not be extended. In no event shall the
provisions of Article 5 be modified more frequently than every six months. No
amendment shall have the effect of granting to any person or persons any
discretion as to the selection of any person to whom any option may be granted
under the Plan or the determination of the number or maximum number of shares of
stock which may be allocated to any Director or which may be covered by stock
options granted to any Director pursuant to the Plan. No action of the Board or
stockholders may, without the consent of an optionee, substantially impair his
rights under any option previously granted to him.
ARTICLE 16 - Governmental Regulations
The Plan and the grant and exercise of options thereunder, and the
Company's obligation to sell and deliver shares of the Company's Common Stock
under such options, shall be subject to all applicable laws (including tax
laws), rules and regulations.
A true copy.
By: /s/ Frank B. Manning
Frank B. Manning