As filed with the Securities and Exchange Commission on August 28, 2013.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORMS-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NOVATEL WIRELESS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 86-0824673 | |
| (State of incorporation) | (I.R.S. Employer Identification Number) |
9645 Scranton Road, Suite 205
San Diego, California 92121
(Address, including zip code,
of registrant’s principal executive offices)
AMENDED AND RESTATED
NOVATEL WIRELESS, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Catherine F. Ratcliffe
Senior Vice President, Business Affairs, General Counsel and Secretary
Novatel Wireless, Inc.
9645 Scranton Road, Suite 205
San Diego, California 92121
(858) 812-3400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer | ¨ | Accelerated Filer | x | |||
| Non-Accelerated Filer | ¨ (Do not check if a smaller reporting company) | Smaller Reporting Company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price per | Proposed Maximum Aggregate Offering Price (2) | Amount of Fee | ||||
Common Stock, par value $0.001 per share | 1,500,000 shares | $3.21 | 4,815,000 | $656.77 | ||||
| ||||||||
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| (1) | Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional shares of Common Stock as may become issuable pursuant to the anti-dilution provisions of the Amended and Restated Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan (the “Plan”). |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to paragraphs (c) and (h) of Rule 457 of the Securities Act. The price per share and aggregate offering price are based upon the average of the high and low sales prices of the Registrant’s Common Stock on August 27, 2013, as reported on the NASDAQ Global Select Market. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of this Registration Statement is included in the Section 10(a) prospectus to be sent or given to participants in the Amended and Restated Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with Rule 428 and the Note to Part I of Form S-8, the information is not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
Novatel Wireless, Inc. (the “Company”) is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and, in accordance therewith, files reports and other information with the Commission. The following documents, or portions thereof, filed by the Company with the Commission pursuant to the Exchange Act, are incorporated by reference in this Registration Statement:
(a) Annual Report onForm 10-K for the year ended December 31, 2012;
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 2013 and June 30, 2013;
(c) Current Reports onForm 8-K filed on February 21, 2013, March 22, 2013, May 7, 2013, June 12, 2013 and August 7, 2013; and
(d) The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A filed on September 29, 2000, including any amendment or report filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that (i) indicates that all securities offered under this Registration Statement have been sold, or (ii) deregisters all securities then remaining unsold under this Registration Statement, shall be deemed to be incorporated by reference in this Registration Statement and to be a part of this Registration Statement from the date of filing of any such documents.
Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also incorporated or deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
The validity of the Common Stock to be registered hereby will be passed upon for the Company by Catherine F. Ratcliffe, the Company’s General Counsel. As of August 28, 2013, Ms. Ratcliffe beneficially owns 447,794 shares of Common Stock, which includes 334,941 shares of Common Stock issuable within 60 days of the date hereof upon the exercise of stock options.
| Item 6. | Indemnification of Directors and Officers. |
Section 145 of the Delaware General Corporation Law permits the Company, in certain circumstances, to indemnify any present or former director, officer, employee or agent of the Company against judgments, penalties, fines, settlements and reasonable expenses incurred in connection with a proceeding in which any such person was, is or is threatened to be, made a party by reason of holding such office or position. Article XIV of our amended and restated certificate of incorporation and Article VI of our bylaws provide for indemnification to the maximum extent permitted by Delaware law. In addition, we have entered into indemnification agreements with our officers and directors. We also maintain directors and officers insurance to insure such persons against certain liabilities. Our amended and restated certificate of incorporation provides that, subject to Delaware law, our directors will not be personally liable for monetary damages awarded as a result of a breach of their fiduciary duty owed to the Company and its stockholders. This provision does not eliminate our directors’ fiduciary duty and in appropriate circumstances equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Delaware law.
The Amended and Restated Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan contains indemnification provisions indemnifying the board of directors, and the committee appointed by the board to administer the plan, for any and all losses, claims, damages or liabilities (including attorneys’ fees and amounts paid, with the approval of the board of directors, in settlement of any claim) arising out of or resulting from the implementation of a duty, act or decision with respect to the plan, except those involving gross negligence or willful misconduct.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
Exhibit | ||
| 5.1* | Legal Opinion of Catherine F. Ratcliffe, Esq. | |
| 23.1* | Consent of Catherine F. Ratcliffe, Esq. is contained in Exhibit 5.1 to this Registration Statement | |
| 23.2* | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
| 24.1* | Power of Attorney is contained on the signature page of this Registration Statement | |
| 99.1 | Amended and Restated Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Company’s Proxy Statement on Schedule 14A, filed on April 30, 2013) | |
| * | Filed herewith |
| 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 of 1933;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section 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 Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in 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 initialbona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 San Diego, State of California, on August 28, 2013.
| NOVATEL WIRELESS, INC. | ||
| By: | /s/ Peter V. Leparulo | |
| Peter V. Leparulo | ||
| Chairman and Chief Executive Officer | ||
POWER OF ATTORNEY
Know all persons by these presents, that each person whose signature appears below constitutes and appoints Peter V. Leparulo and Catherine F. Ratcliffe, or either of them, his true and lawful attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and 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, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 their substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Peter V. Leparulo Peter V. Leparulo | Chairman and Chief Executive Officer (principal executive officer) | August 28, 2013 | ||
/s/ Kenneth G. Leddon Kenneth G. Leddon | Senior Vice President and Chief Financial Officer (principal financial and accounting officer) | August 28, 2013 | ||
/s/ James Ledwith James Ledwith | Director | August 28, 2013 | ||
/s/ John D. Wakelin John D. Wakelin | Director | August 28, 2013 | ||
/s/ David A. Werner David A. Werner | Director | August 28, 2013 | ||
/s/ Russell Gerns Russell Gerns | Director | August 28, 2013 | ||
/s/ Sue Swenson Sue Swenson | Director | August 28, 2013 | ||
EXHIBIT INDEX
Exhibit Number | ||
| 5.1* | Legal Opinion of Catherine F. Ratcliffe, Esq. | |
| 23.1* | Consent of Catherine F. Ratcliffe, Esq. is contained in Exhibit 5.1 to this Registration Statement | |
| 23.2* | Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm | |
| 24.1* | Power of Attorney is contained on the signature page of this Registration Statement | |
| 99.1 | Amended and Restated Novatel Wireless, Inc. 2000 Employee Stock Purchase Plan (incorporated by reference to Appendix A to the Company’s Proxy Statement on Schedule 14A, filed on April 30, 2013) | |
| * | Filed herewith |