Registration Statement
As
filed
with the Securities and Exchange Commission on October 27, 2005
Registration
No. 333-______
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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FORM
S-8
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REGISTRATION
STATEMENT
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Under
The
Securities Act of 1933
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LANTRONIX,
INC.
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(Exact
name of Registrant as specified in its
charter)
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Delaware
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33-0362767
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
Number)
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15353
Barranca Parkway
Irvine,
California 92618
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(Address,
including zip code, of Registrant's principal executive
offices)
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2000
Employee Stock Purchase Plan
2000
Stock Plan
(Full
title of the plan)
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Marc
Nussbaum
Chief
Executive Officer
Lantronix,
Inc.
15353
Barranca Parkway
Irvine,
California 92618
(949)
453-3990
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(Name,
address, including zip code, and telephone number, including area
code, of
agent for service)
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Copies
to:
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John
T. Sheridan, Esq.
John
Turner, Esq.
Wilson
Sonsini Goodrich & Rosati, PC
650
Page Mill Road
Palo
Alto, California 94304
(650)
493-9300
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Michael
Cornelius, Esq.
Lantronix,
Inc.
15353
Barranca Parkway
Irvine,
California 92618
(949)
453-3990
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to
be
Registered
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Amount
to
be
Registered(1)
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Proposed
Maximum
Offering
Price
Per
Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount
of
Registration
Fee
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Common
Stock, $0.0001 par value, to be issued
under
the 2000 Employee Stock Purchase Plan
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300,000
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$378,000
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$44.49
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Common
Stock, $0.0001 par value, to be issued
under
the 2000 Stock Plan
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2,000,000
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$1.26
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$2,520,000
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$296.60
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(1)
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Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities
Act”), 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 and 2000 Stock 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.
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(2)
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The
Proposed Maximum Offering Price Per Share was calculated pursuant
to Rule
457(c) under the Securities Act. The Proposed Maximum Offering Price
Per
Share was determined by reference to the average high and low prices
reported on the Nasdaq SmallCap Market on October 24, 2005, which
was
$1.26 per share.
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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 and 2000 Stock Plan as a result of certain automatic annual increases
in
the number of authorized shares for issuance under the plans.
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,
2005,
filed with the Commission on September 28, 2005.
(b)
The
description of the Registrant's Common Stock contained in the Registrant's
Registration Statement on Form 8-A, filed with the Commission on August 2,
2000,
filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).
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 under this Registration
Statement have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement from the date of filing of such documents.
The
documents incorporated by reference herein contain forward-looking statements
that involve risks and uncertainties. The Registrant’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. The Registrant has authorized
no
one to provide you with different information. The Registrant is 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.
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.
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Exhibit
Number
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Description
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4.1
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(1)
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2000
Employee Stock Purchase Plan, amended and restated as of November
18,
2004.
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4.2
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(2)
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2000
Stock Plan and forms of agreement.
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4.3
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(3)
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2000
Stock Plan Amendment I dated as of January 3, 2004.
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5.1
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Opinion
of Wilson Sonsini Goodrich & Rosati, P.C., as to legality of
securities being registered.
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23.1
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Consent
of Independent Registered Public Accounting Firm, McGladrey & Pullen,
LLP.
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23.2
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Consent
of Independent Registered Public Accounting Firm, Ernst & Young
LLP.
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23.3
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Consent
of Counsel (contained in Exhibit 5.1).
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24.1
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Power
of Attorney (contained on signature pages of this registration
statement).
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(1) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on December 6, 2004.
(2) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on February 24, 2003.
(3) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on February 24, 2003.
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, 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 described in Item 6 of Part II
of
this Form S-8 Registration Statement, 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 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.
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 October 27,
2005.
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LANTRONIX,
INC. |
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By: |
/s/ Marc
H. Nussbaum |
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Marc
H. Nussbaum
Chief
Executive Officer
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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:
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Signature
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Title
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Date
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/s/
Marc H. Nussbaum
Marc
H. Nussbaum
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President
and Chief Executive Officer
(Principal Executive
Officer)
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October
27, 2005
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/s/
James W. Kerrigan
James
W. Kerrigan
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Chief
Financial Officer and Secretary (Principal
Financial Officer
and Accounting Officer)
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October
27, 2005
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/s/
H.K. Desai
H.K.
Desai
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Chairman
of the Board of Directors
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October
27, 2005
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/s/
Kathryn Braun Lewis
Kathryn
Braun Lewis
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Director
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October
27, 2005
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/s/
Howard T. Slayen
Howard
T. Slayen
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Director
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October
27, 2005
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/s/
Thomas W. Burton
Thomas
W. Burton
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Director
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October
27, 2005
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Exhibit
Index
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Exhibit
Number
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Description
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4.1
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(1)
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2000
Employee Stock Purchase Plan, amended and restated as of November
18,
2004.
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4.2
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(2)
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2000
Stock Plan and forms of agreement.
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4.3
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(3)
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2000
Stock Plan Amendment I dated as of January 3, 2004.
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5.1
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Opinion
of Wilson Sonsini Goodrich & Rosati, P.C., as to legality of
securities being registered.
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23.1
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Consent
of Independent Registered Public Accounting Firm, McGladrey & Pullen,
LLP.
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23.2
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Consent
of Independent Registered Public Accounting Firm, Ernst & Young
LLP.
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23.3
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Consent
of Counsel (contained in Exhibit 5.1).
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24.1
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Power
of Attorney (contained on signature pages of this registration
statement).
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(1) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on December 6, 2004.
(2) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on February 24, 2003.
(3) Incorporated
by reference to the Exhibits filed with the Company’s Registration Statement on
Form S-8 filed with the SEC on February 24, 2003.
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