Form S-8

View:

Download DOC

Download PDF

Download XLS

As filed with the Securities and Exchange Commission on August 15, 2007

Registration No. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

NOVATEL WIRELESS, INC.

(Exact Name Of Registrant as Specified in Its Charter)

9645 Scranton Road, Suite 205

San Diego, California 92121

(858) 812-3400

(Address of Principal Executive Offices)

Amended and Restated 2000 Stock Incentive Plan

Amended and Restated 2000 Employee Stock Purchase Plan

(Full Title of the Plan)

Catherine F. Ratcliffe

Senior Vice President, Business Affairs

Novatel Wireless, Inc.

9645 Scranton Road, Suite 205

San Diego, California 92121

(Name and Address of Agent For Service)

(858) 812-3400

(Telephone Number, Including Area Code, of Agent For Service)

CALCULATION OF REGISTRATION FEE

Approximate date of commencement of proposed sale to the public: As soon as practicable after the Registration Statement becomes effective.

Novatel Wireless, Inc. is hereby registering 2,000,000 additional shares of its Common Stock, $0.001 par value per share (“Common Stock”), for issuance under the Amended and Restated Novatel Wireless 2000 Stock Incentive Plan and 268,000 additional shares of Common Stock for issuance under the Amended and Restated Novatel Wireless 2000 Employee Stock Purchase Plan. Registration Statement No. 333-53692 on Form S-8, filed with the Securities and Exchange Commission (the “SEC”) on January 12, 2001 and amended pursuant to Post Effective Amendments filed with the SEC on October 9, 2003 and August 2, 2004, relating to the same class of securities is currently effective and, in accordance with General Instruction E to Form S-8, the contents of such Registration Statement are incorporated herein by reference.

The validity of the Common Stock to be registered hereby will be passed upon for the Company by Patrick T. Waters, the Company’s Deputy General Counsel. As of the date hereof, Mr. Waters beneficially owns 43,771 shares of Common Stock, which includes 38,375 shares of Common Stock issuable within 60 days of the date hereof upon the exercise of stock options.

UNDERTAKINGS

(a) 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, as amended (the “Securities Act”);

(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the 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 the effective registration statement.

(iii) 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;

Provided, however, that paragraphs (a)(i) and (a)(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 section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are incorporated by reference in the registration statement.

(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) 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.

(d) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

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 San Diego, State of California, on August 15, 2007.

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints BRAD WEINERT AND CATHERINE F. RATCLIFFE and each or either one of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, 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, 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 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 any of them, or their or his substitutes or substitute, 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 by the following persons in the capacities and on the dates indicated.

EXHIBIT INDEX

Exhibit 5.1

August 15, 2007

Novatel Wireless, Inc.

9645 Scranton Road, Suite 205

San Diego, CA 92121

Ladies and Gentlemen:

I am the Deputy General Counsel of Novatel Wireless, Inc., a Delaware corporation (the “Company”), and as such, I have acted as counsel for the Company in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) proposed to be filed with the Securities and Exchange Commission (the “SEC”) for the purpose of registering under the Securities Act of 1933, as amended (the “Act”), up to 2,268,000 shares (the “Shares”) of the Company’s Common Stock, $0.001 par value per share, which is comprised of (i) 2,000,000 Shares reserved for issuance upon the exercise of options granted under the Amended and Restated Novatel Wireless 2000 Stock Incentive Plan (the “Incentive Plan”) and (ii) 268,000 Shares reserved for issuance under the Amended and Restated Novatel Wireless 2000 Employee Stock Purchase Plan (the “Purchase Plan”).

In connection with this opinion, I have examined and relied upon such documents, records, certificates, memoranda and other instruments as in my judgment are necessary or appropriate to enable me to render the opinion expressed below. In performing such examination, I have assumed the following (i) the authenticity of original documents and the genuineness of all signatures, (ii) the conformity to the originals of all documents submitted to me as copies and (iii) the truth, accuracy, and completeness of the information, representations, and warranties contained in the records, documents, and certificates that I have reviewed.

On the basis of the foregoing, and in reliance thereon, I am of the opinion that the Shares, when issued and sold in accordance with the Incentive Plan or the Purchase Plan, as the case may be, and the Registration Statement and related prospectus, will be validly issued, fully paid and nonassessable.

I hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration Statement, and to all references to me included in such Registration Statement. In giving such consent, I do not thereby admit that I come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder.

Very truly yours,

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

The Board of Directors

Novatel Wireless, Inc. and subsidiaries:

We consent to the use of our reports dated March 16, 2007, with respect to the consolidated balance sheets of Novatel Wireless, Inc. and subsidiaries (the Company) as of December 31, 2006 and 2005, and the related consolidated statements of operations, stockholders’ equity and comprehensive income, and cash flows for each of the years in the three-year period ended December 31, 2006, the accompanying financial statement Schedule II, management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2006, and the effectiveness of internal control over financial reporting as of December 31, 2006, incorporated herein by reference.

Our report on the consolidated financial statements refers to the Company’s adoption of Statement of Financial Accounting Standards No. 123 (R), Share-Based Payment, effective January 1, 2006.