As filed with the Securities and Exchange Commission on September 4, 2020

Registration No. __________________

 

 

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 No.)

 

7535 Irvine Center Drive, Suite 100

Irvine, CA 92618
(Address, including zip code, of Principal Executive Offices)

___________________

 

Inducement Stock Option Awards

Inducement Restricted Stock Unit Awards

(Full title of the plan)

___________________

 

Jeremy Whitaker
Chief Financial Officer
Lantronix, Inc.

7535 Irvine Center Drive, Suite 100

Irvine, CA 92618
(949) 453-3990

(Name, address and telephone number, including area code, of agent for service)

 

COPY TO:

David Goren
Vice President, Human Resources, Legal & Business Affairs

Lantronix, Inc.

7535 Irvine Center Drive, Suite 100

Irvine, CA 92618

(949) 453-3990

___________________

 

 

 

   

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

  Large accelerated filer o Accelerated filer o
  Non-accelerated filer þ Smaller reporting company þ
    Emerging growth company o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o

 

CALCULATION OF REGISTRATION FEE

 

 

Title of

Securities

To Be Registered

 

 

Amount

To Be

Registered

Proposed

Maximum

Offering

Price

Per Share

Proposed

Maximum

Aggregate

Offering

Price

 

 

Amount Of

Registration

Fee

Common Stock, $0.0001 par value per share:        
Issuable pursuant to new employee inducement stock option awards

310,000(1)

shares

$3.58(2) $1,109,800(2) $144(2)
Issuable pursuant to new employee inducement restricted stock unit awards

185,000(1)

shares

$4.91(3) $908,350(3) $118(3)
Total:

495,000(1)

shares

  $2,018,150 $262

 

(1)This Registration Statement covers, in addition to the number of shares of Lantronix, Inc., a Delaware corporation (“Lantronix” or the “Registrant”), common stock, par value $0.0001 per share (the “Common Stock”), stated above, options and other rights to purchase or acquire the shares of Common Stock covered by this Registration Statement and, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), an additional indeterminate number of shares, options and rights that may be offered or issued pursuant to the awards listed in this table above, as a result of one or more adjustments under the applicable plan or award agreement evidencing the award to prevent dilution resulting from one or more stock splits, stock dividends or similar transactions. See the “Explanatory Note” below for more information regarding these awards.

 

(2)Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based on the weighted average exercise price of the options.

 

(3)Pursuant to Securities Act Rule 457(h), the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high and low prices of the Common Stock on September 3, 2020, as quoted on the NASDAQ Capital Market.
   
  The Exhibit Index for this Registration Statement is at page 8.

 

 

 

   

 

 

EXPLANATORY NOTE

 

Lantronix, Inc. (“Lantronix” or the “Registrant”) hereby files this Registration Statement on Form S-8 (the “Registration Statement”) to register under the Securities Act of 1933, as amended (the “Securities Act”), a total of 495,000 shares of common stock, par value $0.0001 per share, of Lantronix (“Lantronix Common Stock”) that may be issued upon the settlement of 185,000 restricted stock units (the “Inducement RSUs”) and the exercise of 310,000 stock options (the “Inducement Options”) that were granted to David Goren and Jonathan Shipman on June 3, 2019 and to Roger Holliday on February 4, 2020 to induce them to accept employment by the Registrant.

 

The Inducement RSUs and Inducement Options were awarded outside of the Lantronix, Inc. 2010 Amended and Restated Stock Incentive Plan, as amended. The Inducement RSUs and Inducement Options were approved by the Registrant’s Board of Directors and Compensation Committee in compliance with, and in reliance on, NASDAQ Listing Rule 5635(c)(4), which exempts employment inducement grants from the general requirement of the NASDAQ Listing Rules that equity-based compensation plans and arrangements be approved by stockholders.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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PART I

 

INFORMATION REQUIRED IN THE

SECTION 10(a) PROSPECTUS

 

The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants as specified by Securities Act Rule 428(b)(1).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 4 

 

 

PART II

 

INFORMATION REQUIRED IN THE

REGISTRATION STATEMENT

 

Item 3.Incorporation of Certain Documents by Reference

 

The following documents of the Registrant filed with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

 

(a)The Registrant’s Annual Report on Form 10-K for its fiscal year ended June 30, 2019, filed with the Commission on September 11, 2019 (Commission File No. 001-16027);

 

(b)The Registrant’s Quarterly Reports on Form 10-Q for its fiscal quarters ended September 30, 2019, December 31, 2019 and March 31, 2020, filed with the Commission on November 14, 2019, February 13, 2020 and May 15, 2020, respectively (each, Commission File No. 001-16027);

 

(c)The Registrant’s Current Reports on Form 8-K, filed with the Commission on July 10, 2019 (with respect to Items 1.01 and 2.01 and the corresponding exhibits in Item 9.01 only and as amended by the Form 8-K/A filed with the Commission on September 20, 2019), August 2, 2019 (with respect to Item 5.02 only), November 01, 2019 (with respect to Items 1.01 and 3.02 and the corresponding exhibits in Item 9.01 only), November 12, 2019, November 14, 2019, January 16, 2020 (with respect to Item 2.01 only and as amended by Form 8-K/A filed with the Commission on March 27, 2020), January 22, 2020, April 23, 2020, May 5, 2020, May 12, 2020, August 31, 2020 and September 3, 2020 (each, Commission File No. 001-16027); and

 

(d)The description of the Registrant’s Common Stock contained in Exhibit 4.1 of its Annual Report on Form 10-K filed with the Commission on September 11, 2019 (Commission File No. 001-16027), and any other amendment or report filed for the purpose of updating such description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance with Commission rules shall not be deemed incorporated by reference into this Registration Statement. Any statement contained herein or in a document, all or a portion of which is 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 contained herein or in any other subsequently filed document which also is or is deemed to be 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 amended, to constitute a part of this Registration Statement.

 

Item 4.Description of Securities

 

Not applicable.

 

 

 

 5 

 

 

Item 5.Interests of Named Experts and Counsel

 

The validity of the issuance of Common Stock registered hereby is passed on for the Company by David Goren. Mr. Goren is the Vice President, Human Resources, Legal & Business Affairs of the Company and is compensated by the Company as an employee. Mr. Goren owns 28,495 shares of Common Stock, 91,042 restricted stock units that are payable in an equivalent number of shares of Common Stock (with outstanding awards of restricted stock units that are subject to performance-based vesting included at the target level of performance), and Company stock options to acquire up to an additional 85,000 shares of Common Stock.

 

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. Section 145 of the Delaware General Corporation Law (“DGCL”) empowers a Delaware corporation to indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer or director of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, 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 reasonably believed to be in or not opposed to the corporation’s best interests, and, for criminal proceedings, had no reasonable cause to believe his conduct was illegal. A Delaware corporation may indemnify officers and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation in the performance of his duty. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director actually and reasonably incurred.

 

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’s Bylaws also permit it to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out 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

 

See the attached Exhibit Index at page 8, which is incorporated herein by reference.

 

 

 

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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:

 

(i)                 To include any prospectus required by Section 10(a)(3) of 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;

 

(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 reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this 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 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 the initial bona fide offering thereof.

 

(h)            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 provisions described in Item 6 above, 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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EXHIBIT INDEX

 

Exhibit NumberDescription of Exhibit
  
4.1Form of Inducement Stock Option Agreement
  
4.2Form of Inducement Restricted Stock Unit Agreement
  
5Opinion of Counsel (opinion re legality)
  
23.1Consent of Squar Milner LLP (consent of independent registered public accounting firm)
  
23.2Consent of Counsel (included in Exhibit 5)
  
24Power of Attorney (included in this Registration Statement under “Signatures”)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 8 

 

 

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 Form S-8 Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on September 4, 2020.

 

  LANTRONIX, INC.
   
   
  By: /s/ Jeremy Whitaker                  
  Jeremy Whitaker
  Chief Financial Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Jeremy Whitaker and David Goren, and each of them, acting individually and without the other, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them individually, or their or his substitute or substitutes, 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 below by the following persons in the capacities and on the dates indicated.

 

Signature Title Date
     

/s/ Paul Pickle                           

Paul Pickle

President, Chief Executive Officer and Director

(Principal Executive Officer)

September 4, 2020
     

/s/ Jeremy Whitaker               

Jeremy Whitaker

Chief Financial Officer

(Principal Financial and Accounting Officer)

September 4, 2020
     

/s/ Bernhard Bruscha            

Bernhard Bruscha

Director September 4, 2020
     

/s/ Bruce Edwards                

Bruce Edwards

Director September 4, 2020
     

/s/ Margaret Evashenk        

Margaret Evashenk

Director September 4, 2020
     

/s/ Paul Folino                      

Paul Folino

Director September 4, 2020
     

/s/ Hoshi Printer                  

Hoshi Printer

Director September 4, 2020

 

 

 

 

 9 

 

EXHIBIT 4.1

 

LANTRONIX, INC.


INDUCEMENT STOCK OPTION AGREEMENT

 

As an inducement material to the hiring of ____________ (the “Optionee”) as ____________ of Lantronix, Inc., a Delaware corporation (the “Company”), hereby grants to the Optionee an award (the “Award”) of the number of non-qualified stock options set forth below. This Award is subject to all of the terms and conditions set forth herein and in this Inducement Stock Option Agreement (the “Inducement Agreement”). This Award is not issued pursuant to the Company’s Amended & Restated 2010 Stock Incentive Plan or any other equity incentive plan of the Company.

 

1.                  Grant of Option. The Company hereby grants to the Optionee an option (the “Option”) to purchase the number of shares (the “Shares”) of the Corporation’s common stock, par value $0.0001 per share (the “Common Stock”) set forth below, at the exercise price per share set forth below (the “Exercise Price”), subject to the terms and conditions of this Inducement Agreement, as follows:

 

Grant Date:  
Vesting Commencement Date:  
Exercise Price per Share:  
Total Number of Shares Granted:  
Total Exercise Price:  
Type of Option:  
Term/Expiration Date: __ Years from the Grant Date
Vesting Schedule:  

 

2.                  Exercise of Option.

 

(a)               Right to Exercise. This Option is exercisable during its term in accordance with the Vesting Schedule set out in Section 1 and the applicable provisions of this Inducement Agreement, subject to Optionee’s remaining a Service Provider of the Company on each vesting date.

 

(b)               Post-Termination Exercise Period. If Optionee ceases to be a Service Provider of the Company, then this Option may be exercised to the extent vested as of the date of termination until the earlier of (i) ninety (90) days after the date upon which Optionee ceases to be a Service Provider of the Company, or (ii) the original ______-year Option term. If on the date of termination the Optionee is not vested as to his or her entire Option, the Shares covered by the unvested portion of the Option will terminate. If after termination the Optionee does not exercise his or her Option within ninety (90) days, the Option will terminate.

 

(c)               Death or Disability. If the Optionee ceases to be a Service Provider of the Company as a result of the Optionee’s death or disability, the Optionee or the Optionee’s beneficiary may exercise the Option to the extent vested as of the date of termination within twelve (12) months following the termination of Optionee’s employment.

 

 

 

 1 

 

 

(d)               Method of Exercise. This option may be exercised with respect to all or any part of any vested Shares by giving the Company or any stock option plan administrator designated by the Company written or electronic notice of such exercise, in the form designated by the Company or the Company’s designated third-party stock option plan administrator, specifying the number of shares as to which this option is exercised and accompanied by payment of the aggregate Exercise Price as to all exercised shares. This Option shall be deemed to be exercised upon receipt by the Company or any third-party stock option plan administrator designated by the Company of such fully executed exercise notice accompanied by such aggregate Exercise Price. No Shares shall be issued pursuant to the exercise of this Option unless such issuance and exercise complies with applicable laws. Assuming such compliance, for income tax purposes the exercised shares shall be considered transferred to the Optionee on the date the Option is exercised with respect to such exercised shares.

 

(e)               Payment of Exercise Price. Payment of the aggregate exercise price shall be by any of the following, or a combination thereof, at the election of the Optionee: (i) cash; or (ii) check; or (iii) delivery of a properly executed exercise notice together with such other documentation as the Administrator and a broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale proceeds required to pay the exercise price.

 

3.                  Term of Option. This Option may be exercised only within the term set out in Section 1, and may be exercised during such term only in accordance with the terms of this Inducement Agreement.

 

4.                  Administration of Award; Fair Market Value. Subject to the provisions of this Inducement Agreement, the Compensation Committee of the Board of Directors of the Company (the “Administrator”) will have the authority, in its discretion: (i) to construe and interpret the terms of this Inducement Agreement; (ii) to modify or amend each Award (subject to Section 11 of this Inducement Agreement); and (iii) to make all other determinations deemed necessary or advisable for administering this Inducement Agreement. For purposes of this Agreement, “Fair Market Value” means, as of any date, the value of the Common Stock as the Administrator may determine in good faith by reference to the price of such stock on any established stock exchange or a national market system on the day of determination if the Common Stock is so listed on any established stock exchange or a national market system. If the Common Stock is not listed on any established stock exchange or a national market system, the value of the Common Stock will be determined as the Administrator may determine in good faith.

 

5.                  Tax Consequences. Some of the federal tax consequences relating to this Option, as of the date of this Option, are set forth below. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. THE OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.

 

(a)               Exercising the Option. The Optionee may incur regular federal income tax liability upon exercise of the Option. The Optionee will be treated as having received compensation income (taxable at ordinary income tax rates) equal to the excess, if any, of the Fair Market Value of the exercised shares on the date of exercise over their aggregate Exercise Price. If the Optionee is an employee or a former employee, the Company will be required to withhold from his or her compensation or collect from Optionee and pay to the applicable taxing authorities an amount in cash equal to a percentage of this compensation income at the time of exercise, and may refuse to honor the exercise and refuse to deliver Shares if such withholding amounts are not delivered at the time of exercise.

 

(b)               Withholding Requirements. Prior to the delivery of any Shares pursuant to the exercise of the Option, the Company will have the power and the right to deduct or withhold, or require the Optionee to remit to the Company, an amount sufficient to satisfy federal, state, local, foreign or other taxes (including the Optionee’s FICA obligation) required to be withheld with respect to such Award (or exercise thereof).

 

 

 

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(c)               Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit the Optionee to satisfy such tax withholding obligation, in whole or in part by (without limitation) (i) paying cash, (ii) electing to have the Company withhold otherwise deliverable cash or Shares having a Fair Market Value equal to the minimum amount required to be withheld, (iii) delivering to the Company already-owned Shares having a Fair Market Value equal to the amount required to be withheld, or (iv) selling a sufficient number of Shares otherwise deliverable to the Optionee through such means as the Administrator may determine in its sole discretion (whether through a broker or otherwise) equal to the amount required to be withheld. The amount of the withholding requirement will be deemed to include any amount which the Administrator agrees may be withheld at the time the election is made, not to exceed the amount determined by using the maximum federal, state or local marginal income tax rates applicable to the Optionee with respect to the Award on the date that the amount of tax to be withheld is to be determined. The Fair Market Value of the Shares to be withheld or delivered will be determined as of the date that the taxes are required to be withheld.

 

6.                  Payments after Death. Any distribution or delivery to be made to the Optionee under this Agreement will, if the Optionee is then deceased, be made to the administrator or executor of the Optionee’s estate. Any such administrator or executor must furnish the Company with (i) written notice of his or her status as transferee, and (ii) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

 

7.                  Rights as Stockholder. Neither the Optionee nor any person claiming under or through the Optionee will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to the Optionee or Optionee’s broker.

 

8.                  Adjustments; Merger or Change in Control; Acceleration.

 

(a)               Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under this Inducement Agreement, will adjust the number and class of Shares that may be delivered upon exercise of the Options.

 

(b)               Dissolution or Liquidation. To the extent not previously settled, this Award shall terminate immediately prior to the dissolution or liquidation of the Company.

 

(c)               Change in Control. Pursuant to the terms of the Offer Letter dated as of ___________ between the Optionee and the Company (the “Offer Letter”), if the Optionee’s employment with the Company is terminated by the Optionee for Good Reason (as defined in the Offer Letter) or by the Company without Cause (as defined in the Offer Letter) within 60 days prior to or 12 months following a Change in Control (as defined in the Offer Letter), then, subject to the Optionee’s execution and non-revocation of a release of claims in a form provided by the Company and resignation by the Optionee from any Company-affiliated board positions, all unvested Options under this Inducement Agreement shall fully vest and be become exercisable.

 

9.                  No Effect on Employment. The Optionee’s employment with the Company is on an at-will basis only. Accordingly, nothing in this Inducement Agreement confers upon Optionee any right with respect to continuing the Optionee’s relationship as an employee of the Company, nor will this Inducement Agreement interfere in any way with the Optionee’s right or the Company’s right to terminate such relationship at any time, with or without cause, to the extent permitted by applicable laws.

 

10.              Non-Transferability of Option. This Option may not be transferred in any manner except by will or by the laws of descent or distribution and may be exercised during the lifetime of Optionee only by the Optionee. The terms of this Inducement Agreement shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee. Upon any attempt to transfer the Award, the Award and the rights and privileges conferred hereby immediately will become null and void.

 

 

 

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11.              Amendment. The Administrator may at any time amend this Inducement Agreement; provided, however, that no amendment of this Inducement Agreement will impair the rights of the Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company.

 

12.              Additional Conditions to Issuance of Stock. If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to the Optionee (or his estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority.

 

13.              Code Section 409A. Notwithstanding anything in this Inducement Agreement to the contrary, this Inducement Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and shall be interpreted in a manner consistent with such intention.

 

14.              Governing Law. This Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to its choice-of-law provisions).

 

[SIGNATURE PAGE FOLLOWS]

 

 

 

 

 

 

 

 

 

 

 

 

 

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By your signature and the signature of the Company’s representative below, you and the Company agree that this Award is granted under and governed by the terms and conditions of this Inducement Agreement. Optionee has reviewed this Inducement Agreement in its entirety, has had an opportunity to obtain the advice of counsel prior to executing this Inducement Agreement and fully understands all provisions of this Inducement Agreement. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to this Inducement Agreement. Optionee further agrees to notify the Company upon any change in the residence address indicated below.

 

OPTIONEE LANTRONIX, INC.
   
Signature:     ___________________________ Signature:     ___________________________
Print Name:     __________________________ Print Name:     __________________________
Date:     _______________________________ Title:     _______________________________
  Date:     _______________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 5 

 

EXHIBIT 4.2

 

LANTRONIX, INC.


INDUCEMENT RESTRICTED STOCK UNIT AWARD AGREEMENT

 

As an inducement material to the hiring of ____________ (the “Grantee”) as __________________, Lantronix, Inc., a Delaware corporation (the “Company”), hereby grants to the Grantee an award (the “Award”) of the number of restricted stock units set forth below (the “RSUs”). This Award is subject to all of the terms and conditions set forth in this Inducement Restricted Stock Unit (the “Inducement Agreement”). This Award is not issued pursuant to the Company’s Amended & Restated 2010 Stock Incentive Plan or any other equity incentive plan of the Company.

 

1.                  Grant of Restricted Stock Unit. Effective as of ____________ (the “Grant Date”), the Company hereby grants to the Grantee an award of _______ RSUs, subject to the terms and conditions in this Inducement Agreement.

 

2.                  Company’s Obligation. Each RSU represents the right to receive one share (each, a “Share”) of the Company’s common stock, par value $0.0001 per share (“Common Stock”) on the applicable vesting date. Unless and until the RSUs vest, the Grantee will have no right to receive Shares under such RSUs. Prior to actual distribution of Shares pursuant to any vested RSUs, such RSUs will represent an unsecured obligation of the Company, payable (if at all) only from the general assets of the Company.

 

3.                  Vesting Schedule. The RSUs awarded by this Agreement shall vest in accordance with the following schedule: [INSERT VESTING SCHEDULE].

 

4.                  Forfeiture and Acceleration on Certain Terminations of Employment. If the Grantee ceases to be a service provider to the Company (i.e., employee or consultant) for any or no reason prior to vesting, the unvested RSUs awarded by this Inducement Agreement will thereupon be forfeited at no cost to the Company except as otherwise provided in this Section 4.

 

(a)               The RSUs, to the extent then outstanding and unvested, will vest in full if a Change in Control (as defined in the Offer Letter dated _________) occurs and, at any time within sixty (60) days before or one (1) year after the Change in Control, the Grantee’s employment is terminated by the Company without Cause or by the Grantee for Good Reason, subject to the Grantee’s execution and non-revocation of a release of claims in a form provided by the Company and resignation by the Grantee from any Company-affiliated board positions.

 

5.                  Payment after Vesting. Any RSUs that vest in accordance with the terms hereof will be paid to the Grantee (or in the event of the Grantee’s death, to his estate) in Shares no later than March 15th of the calendar year following the calendar year in which such RSUs vest.

 

6.                  Tax Liability and Withholding. The Grantee shall be required to pay to the Company, and the Company shall have the right to deduct from any compensation paid to the Grantee pursuant to this Inducement Agreement, the amount of any required withholding taxes in respect of the RSUs and to take all such other action as the Administrator deems necessary to satisfy all obligations for the payment of such withholding taxes. The Administrator may permit the Grantee to satisfy any federal, state or local tax withholding obligation by any of the following means, or by a combination of such means:

 

(a)               tendering a cash payment.

 

(b)               authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable or deliverable to the Grantee as a result of the vesting of the Restricted Stock Units; provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.

 

(c)               delivering to the Company previously owned and unencumbered shares of Common Stock.

 

 

 

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7.                  Payments after Death. Any distribution or delivery to be made to the Grantee under this Agreement will, if the Grantee is then deceased, be made to the administrator or executor of the Grantee’s estate. Any such administrator or executor must furnish the Company with (i) written notice of his or her status as transferee, and (ii) evidence satisfactory to the Company to establish the validity of the transfer and compliance with any laws or regulations pertaining to said transfer.

 

8.                  Rights as Stockholder. Neither the Grantee nor any person claiming under or through the Grantee will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares will have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to the Grantee or Grantee’s broker.

 

9.                  Administration of RSUs. Subject to the provisions of this Inducement Agreement, the Compensation Committee of the Board of Directors of the Company (the “Administrator”) will have the authority, in its discretion: (i) to construe and interpret the terms of this Inducement Agreement; (ii) to modify or amend each Award (subject to Section 15 of this Inducement Agreement); and (iii) to make all other determinations deemed necessary or advisable for administering this Inducement Agreement.

 

10.              Adjustments; Merger or Change in Control.

 

(a)               Adjustments. In the event that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, or other change in the corporate structure of the Company affecting the Shares occurs, the Administrator, in order to prevent diminution or enlargement of the benefits or potential benefits intended to be made available under this Inducement Agreement, will adjust the number and class of Shares that may be delivered upon vesting of the RSUs.

 

(b)               Dissolution or Liquidation. To the extent not previously settled, this Award shall terminate immediately prior to the dissolution or liquidation of the Company.

 

(c)               Change in Control. Subject to Section 4(a), in the event of a Change in Control, the Award will be treated as the Administrator determines in accordance with the authorizations presented herein, including, without limitation, that the Award will be assumed or an equivalent award or right substituted by the successor corporation or a parent or subsidiary of the successor corporation (the “Successor Corporation”). In the event that the Successor Corporation does not assume or substitute for the Award, the RSUs will fully vest. For the purposes of this subsection (c), the Award will be considered assumed if, following the Change in Control, the Award confers the right to receive, for each Share subject to the Award immediately prior to the Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of the Company’s Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the Change in Control is not solely common stock of the Successor Corporation, the Administrator may, with the consent of the Successor Corporation, provide for the consideration to be received upon vesting of the RSUs, for each Share subject to such Award, to be solely common stock of the Successor Corporation equal in fair market value to the per share consideration received by holders of Common Stock in the Change in Control. If the Company is a party to a Change in Control, then the RSUs will be subject to the provisions of this paragraph, provided that any action such taken must either (a) preserve the exemption of Award from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or (b) comply with Code Section 409A (by way of example, if the Award is determined to be nonqualified deferred compensation subject to Section 409A, the settlement described above in connection with a Change in Control shall be made on the settlement date specified in this Inducement Agreement, provided that settlement may be accelerated in accordance with Treasury Regulation Section 1.409A-3(j)(4)).

 

11.              No Effect on Employment. The Grantee’s employment with the Company is on an at-will basis only. Accordingly, nothing in this Inducement Agreement confers upon Grantee any right with respect to continuing the Grantee’s relationship as an employee of the Company, nor will this Inducement Agreement interfere in any way with the Grantee’s right or the Company’s right to terminate such relationship at any time, with or without cause, to the extent permitted by applicable laws.

 

 

 

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12.              Grant is Not Transferable. Except to the limited extent provided in paragraph 6, this grant and the rights and privileges conferred hereby will not be transferred, assigned, pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby, or upon any attempted sale under any execution, attachment or similar process, this grant and the rights and privileges conferred hereby immediately will become null and void.

 

13.              Binding Agreement. Subject to the limitation on the transferability of this grant contained herein, this Agreement will be binding upon and inure to the benefit of the heirs, legatees, legal representatives, successors and assigns of the parties hereto.

 

14.              Amendment. The Administrator may at any time amend this Inducement Agreement; provided, however, that no amendment of this Inducement Agreement will impair the rights of the Grantee, unless mutually agreed otherwise between the Grantee and the Administrator, which agreement must be in writing and signed by the Grantee and the Company.

 

15.              Additional Conditions to Issuance of Stock. If at any time the Company will determine, in its discretion, that the listing, registration or qualification of the Shares upon any securities exchange or under any state or federal law, or the consent or approval of any governmental regulatory authority is necessary or desirable as a condition to the issuance of Shares to the Grantee (or his estate), such issuance will not occur unless and until such listing, registration, qualification, consent or approval will have been effected or obtained free of any conditions not acceptable to the Company. The Company will make all reasonable efforts to meet the requirements of any such state or federal law or securities exchange and to obtain any such consent or approval of any such governmental authority.

 

16.              Code Section 409A. Notwithstanding anything in this Inducement Agreement to the contrary, this Inducement Agreement is intended to comply with the “short-term deferral” rule set forth in Treasury Regulation Section 1.409A-1(b)(4), promulgated under Section 409A of the Code. Notwithstanding the foregoing, if it is determined that the Award fails to satisfy the requirements of the short-term deferral rule and is otherwise determined to be nonqualified deferred compensation subject to Section 409A, and if the Grantee is a “Specified Employee” (within the meaning set forth in Section 409A(a)(2)(B)(i) of the Code) as of the date of his “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h) and without regard to any alternative definition thereunder), then the issuance of any shares that would otherwise be made upon the date of the separation from service or within the first six (6) months thereafter will not be made on the originally scheduled date(s) and will instead be issued in a lump sum on the date that is six (6) months and one day after the date of the separation from service, with the balance of the shares issued thereafter in accordance with the original vesting and issuance schedule set forth above, but if and only if such delay in the issuance of the shares is necessary to avoid the imposition of adverse taxation in respect of the shares under Section 409A of the Code. Each installment of shares that vests is intended to constitute a “separate payment” for purposes of Treasury Regulation Section 1.409A-2(b)(2).

 

17.              Governing Law. This Agreement will be interpreted and enforced under the laws of the State of Delaware (without regard to its choice-of-law provisions).

 

[Signature page follows.]

 

 

 

 

 

 

 

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By your signature and the signature of the Company’s representative below, you and the Company agree that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement. Grantee has reviewed the Plan and this Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Agreement and fully understands all provisions of the Plan and this Agreement. Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan and this Agreement. Grantee further agrees to notify the Company upon any change in the residence address indicated below.

 

GRANTEE LANTRONIX, INC.
   
Signature:     ___________________________ Signature:     ___________________________
Print Name:     __________________________ Print Name:     __________________________
Date:     _______________________________ Title:     _______________________________
  Date:     _______________________________

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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EXHIBIT 5

 

September 4, 2020

 

Lantronix, Inc.

7535 Irvine Center Drive, Suite 100

Irvine, CA 92618

Attention: Board of Directors

 

Re:       Registration of Securities of Lantronix, Inc.

 

Ladies and Gentlemen:

 

In connection with the registration of up to 495,000 shares of Common Stock of Lantronix, Inc., a Delaware corporation (the “Company”), par value $0.0001 per share (the “Shares”), under the Securities Act of 1933, as amended, pursuant to a Registration Statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission on or about the date hereof, such Shares to be issued or delivered pursuant to inducement options and restricted stock unit awards granted to David Goren, Jonathan Shipman and Roger Holliday (collectively, the “Inducement Awards”), you have requested my opinion set forth below.

 

In my capacity as counsel, I have examined originals or copies of those corporate and other records of the Company I considered appropriate.

 

On the basis of such examination and our consideration of those questions of law I considered relevant, and subject to the limitations and qualifications in this opinion, I am of the opinion that the Shares have been duly authorized by all necessary corporate action on the part of the Company and, when issued in accordance with such authorization and the provisions of the agreements evidencing the Inducement Awards, and upon payment for and delivery of the Shares as contemplated in accordance with the agreements evidencing the Inducement Awards and either (a) the countersigning of the certificate or certificates representing the Shares by a duly authorized signatory of the registrar for the Company’s Common Stock, or (b) the book-entry of the Shares by the transfer agent for the Company’s Common Stock in the name of The Depository Trust Company or its nominee, the Shares will be validly issued, fully paid and non-assessable.

 

I consent to your filing this opinion as an exhibit to the Registration Statement.

 

  Respectfully submitted,
   
  /s/ David Goren
   
  David Goren
  Vice President, Human Resources, Legal & Business Affairs

 

 

 

 

EXHIBIT 23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Lantronix, Inc. of our report dated September 11, 2019, relating to the consolidated financial statements of Lantronix, Inc., appearing in the Annual Report on Form 10-K of Lantronix, Inc. for the year ended June 30, 2019.

 

/s/ Squar Milner LLP

 

Irvine, California

September 4, 2020