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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 12, 2001
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NOVATEL WIRELESS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 86-0824673
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
9360 TOWNE CENTRE DRIVE, SUITE 110
SAN DIEGO, CA 92121
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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2000 EMPLOYEE STOCK PURCHASE PLAN
AMENDED AND RESTATED 1997 EMPLOYEE STOCK OPTION PLAN
2000 STOCK INCENTIVE PLAN
(FULL TITLE OF THE PLANS)
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JOHN MAJOR
CHIEF EXECUTIVE OFFICER
NOVATEL WIRELESS, INC.
9360 TOWNE CENTRE DRIVER, SUITE 110
SAN DIEGO, CA 92121
(858) 320-8800
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
BLASE P. DILLINGHAM
ORRICK, HERRINGTON & SUTCLIFFE LLP
777 SOUTH FIGUEROA STREET, SUITE 3200
LOS ANGELES, CA 90017
(213) 629-2020
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Maximum Amount Offering Aggregate Amount of
to be Price Per Offering Registration
Title of Securities to be Registered Registered(1) Share Price Fee
------------------------------------- ---------------------- ----------- -------------- ---------------
<S> <C> <C> <C> <C>
COMMON STOCK $0.001 par value... ... 16,847,728 Shares(2) $7.2461(3) $122,081,090 $30,520.27
</TABLE>
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(1) This registration statement on Form S-8 ("Registration Statement") shall
also cover any additional shares of common stock (hereinafter, the
"Common Stock") of Novatel Wireless, Inc. (the "Registrant") which
become issuable under the plans being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Includes 9,504,820 shares of Common Stock issuable pursuant to options
granted under the Amended and Restated 1997 Employee Stock Option Plan,
5,842,908 shares issuable pursuant to options granted under the 2000
Stock Incentive Plan and 1,500,000 shares of Common Stock issuable
pursuant to the 2000 Employee Stock Purchase Plan.
(3) The Proposed Maximum Offering Price Per Share represents a weighted
average of the following estimates calculated in accordance with Rule
457(h) under the Securities Act of 1933, as amended (the "Securities
Act"): with respect to 9,504,820 shares of Common Stock subject to
outstanding options granted under the Amended and Restated 1997 Employee
Stock Option Plan, the Proposed Maximum Offering Price Per Share is
equal to the weighted average exercise price per share of $4.90; with
respect to 341,000 shares of Common Stock subject to outstanding options
granted under the 2000 Stock Incentive Plan, the Proposed Maximum
Offering Price Per Share is equal to the weighted average exercise price
per share of $9.03; with respect to 5,501,908 shares of Common stock
available for future grant under the 2000 Stock Incentive Plan, the
Proposed Maximum Offering Price Per Share is based upon the average of
the high and low sale prices of the Common Stock as reported on The
Nasdaq National Market on January 9, 2001, which is equal to $10.6875
per share; with respect to 1,500,000 shares of Common Stock issuable
under the 2000 Employee Stock Purchase Plan, the Proposed Maximum
Offering Price Per Share is equal to the weighted average exercise price
per share based upon the average of the high and low sale prices of the
Common Stock as reported on The Nasdaq National market on January 9,
2001, which is equal to $10.6875 per share, multiplied by 85%, which is
the percentage of the trading purchase price applicable to purchases
under the 2000 Employee Stock Purchase Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Novatel Wireless, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's prospectus filed on November 16, 2000 pursuant to
Rule 424(b) of the Securities Act relating to the Registrant's registration
statement on Form S-1, as amended (Commission File No. 333-42570) and which
contains audited financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(b) Not Applicable.
(c) The description of the Registrant's Common Stock contained in the
Registrant's registration statement on Form 8-A(12)(g) filed with the Commission
under section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") on September 29, 2000, including any 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 Exchange Act, prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
the shares of Common Stock offered hereunder have been sold or which deregisters
all such shares 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 the filing of such documents; except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this Registration Statement, any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded 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 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 offered hereby will be passed upon for
the Registrant by Orrick, Herrington & Sutcliffe LLP, Los Angeles, California.
Orrick, Herrington & Sutcliffe LLP owns a total of 17,391 shares of the
Registrant's Common Stock and warrants to purchase an aggregate of 3,477 shares
of the Registrant's Common Stock. Individuals who are partners of Orrick,
Herrington & Sutcliffe LLP own an aggregate of 9,044 shares of the Registrant's
Common Stock and warrants to purchase an aggregate of 1,386 shares of Common
Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") authorizes a Delaware corporation to indemnify officers,
directors, employees and agents of the corporation, in connection with actual or
threatened actions, suits or proceedings provided that such officer, director,
employee or agent acted in good faith and in a manner such officer 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 or her conduct was
unlawful. This authority is sufficiently broad to permit indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act.
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The Registrant's amended and restated certificate of incorporation
reduces the liability of a director or an officer to the corporation or its
stockholders for monetary damages for breaches or alleged breaches of his or her
fiduciary duty as an officer or director, other than in cases of fraud or other
willful misconduct. In addition, the bylaws of the Registrant provide for
indemnification of the Registrant's officers and directors to the maximum extent
permitted by Delaware Law and permit the Registrant to indemnify its other
employees and agents to the maximum extent permitted by Delaware Law. The bylaws
also provide that the Registrant will advance expenses to its officers and
directors as incurred in connection with proceedings against them for which they
may be indemnified.
In addition, the Registrant has, and intends in the future to enter
into, indemnification agreements with its directors and officers in addition to
the indemnification provided for in the Registrant's amended and restated
certificate of incorporation and bylaws. The indemnification agreements require
the Registrant, among other things, to indemnify officers and directors against
liabilities that may arise by reason of their status or service as officers and
directors (but not for liabilities arising from willful misconduct of a culpable
nature), and to advance sums covering the expenses they incurred as a result of
any proceeding against them as to which they could be indemnified. The
Registrant also carries liability insurance covering the Registrant's directors
and officers for claims they would otherwise be required to pay or for which the
Registrant is required to indemnify them.
The Registrant's 2000 Employee Stock Purchase Plan and the Registrant's
2000 Stock Incentive Plan contain 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 administration of the plan, except
those involving gross negligence or willful misconduct.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number
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<S> <C>
4 Reference is made to Registrant's registration statement
No. 000-31659 on Form 8-A(12)(g), together with any
exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(b) to this Registration
Statement.
5 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in
Exhibit 5).
23.2 Consent of independent public accountants Arthur Andersen LLP.
24 Powers of Attorney (included in the signature page to this
Registration Statement).
99.1* 2000 Employee Stock Purchase Plan.
99.2* Amended and Restated 1997 Employee Stock Option Plan.
99.3* 2000 Stock Incentive Plan.
</TABLE>
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* Previously filed as an exhibit to the Registrant's registration statement on
Form S-1 (Commission File No. 333-42570) declared effective by the Commission
on November 15, 2000 and incorporated herein by reference.
Item 9. UNDERTAKINGS.
(a) The 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 therein any prospectus required by section
10(a)(3) of the Securities Act;
(ii) to reflect in such 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 herein; 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 clauses (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
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<PAGE> 5
clauses is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference into this Registration Statement;
(2) that, for purposes 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; 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 Registrant's 2000 Stock Incentive Plan and its Employee Stock
Purchase Plan.
(b) The 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
into 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.
(c) Insofar as the 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, 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 a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, Novatel Wireless, Inc., a corporation organized and existing
under the laws of the State of Delaware, 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 this 12th day of January, 2001.
NOVATEL WIRELESS, INC.
By: /s/ JOHN MAJOR
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John Major
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John Major his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place or stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8, and to file such amendments, together with exhibits and
other documents in connection therewith, with the Securities and Exchange
Commission, granting to said attorney-in-fact and agent, 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, and ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ JOHN MAJOR Chairman of the Board and Chief January 12, 2001
----------------------------- Executive Officer (Principal
John Major Executive Officer)
/s/ MELVIN L. FLOWERS Senior Vice President of Finance January 12, 2001
----------------------------- and Chief Financial Officer
Melvin L. Flowers (Principal Financial and
Accounting Officer)
/s/ ROBERT GETZ Director January 12, 2001
-----------------------------
Robert Getz
/s/ NATHAN GIBB Director January 12, 2001
-----------------------------
Nathan Gibb
/s/ H.H. HAIGHT Director January 12, 2001
-----------------------------
H.H. Haight
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ DAVID OROS Director January 12, 2001
-----------------------------
David Oros
/s/ MARK ROSSI Director January 12, 2001
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Mark Rossi
/s/ STEVEN SHERMAN Director January 12, 2001
-----------------------------
Steven Sherman
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
4 Reference is made to Registrant's registration statement No.
000-31659 on Form 8-A(12)(g), together with any exhibits thereto,
which are incorporated herein by reference pursuant to Item 3(6) to
this Registration Statement.
5 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in
Exhibit 5).
23.2 Consent of independent public accountants Arthur Andersen LLP.
24 Powers of Attorney (included in the signature page to this
Registration Statement).
99.1* 2000 Employee Stock Purchase Plan.
99.2* Amended and Restated 1997 Employee Stock Option Plan.
99.3* 2000 Stock Incentive Plan.
</TABLE>
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* Previously filed as an exhibit to the Registrant's registration statement on
Form S-1 (Commission File No. 333-42570) declared effective by the Commission
on November 15, 2000 and incorporated herein by reference.
