Unassociated Document
As
filed with the Securities and Exchange Commission on November 14,
2007
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
Under
the Securities Act of 1933
Wireless
Telecom Group, Inc.
(Exact
name of Registrant as specified in its charter)
|
New
Jersey
|
3825
|
22-2582295
|
|
(State
or other jurisdiction of
incorporation
or organization)
|
(Primary
Standard Industrial
Classification
Code Number)
|
(I.R.S.
Employer
Identification
No.)
|
25
Eastmans Road
Parsippany,
New Jersey 07054
(973)
386-9696
(Address,
including zip code and telephone number, including area code, of registrant’s
principal executive offices)
James
M. Johnson
Vice
Chairman and Chief Executive Officer
Wireless
Telecom Group, Inc.
25
Eastmans Road
Parsippany,
New Jersey 07054
(973)
386-9696
(Name,
address, including zip code and telephone number, including area code, of agent
for service)
Copies
to:
Robert
H. Cohen, Esq.
Greenberg
Traurig, LLP
200
Park Avenue
New
York, NY 10166
(212)
801-9200
Approximate
date of commencement of proposed sale to the public: From
time
to time after this Registration Statement becomes effective.
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, as
amended (the “Securities Act”) other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. x
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If
this
Form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities to be
Registered
|
|
Amount
to be
Registered
|
|
Proposed
Maximum
Offering
Price
Per Share (1)
|
|
Proposed
Maximum
Aggregate
Offering Price (1)
|
|
Registration
Fee
|
|
|
Common
Stock, $0.01 par value per share
|
|
|
6,472,667
|
|
$
|
1.65
|
|
$
|
10,679,900
|
|
$
|
420
|
|
| |
(1)
|
Estimated
solely for the purpose of computing the registration fee pursuant
to Rule
457(c) of the Securities Act, based upon the average of the high
and low
sales prices of the common stock, as reported on the American Stock
Exchange on November 13, 2007.
|
The
registrant hereby amends this registration statement on such date or dates
as
may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, as amended, or until the
registration statement shall become effective on such date as the Commission,
acting pursuant to such Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not
sell these securities until the registration statement filed with the Securities
and Exchange Commission is effective. This prospectus is not an offer to sell
these securities and
is not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
SUBJECT
TO COMPLETION, DATED NOVEMBER 14, 2007
PROSPECTUS
6,472,667
Shares
Wireless
Telecom Group INC.
Wireless
Telecom Group, Inc.
Common
Stock
All
of
the common stock offered hereby may be sold from time to time by and for the
account of the selling stockholder named in this prospectus and the person(s)
to
whom such stockholder may transfer their shares. The selling stockholder may
sell the shares from time to time on the American Stock Exchange in regular
broker transactions, in transactions directly with market makers or in certain
privately negotiated transactions.
The
methods of sale of the common stock offered by this prospectus are described
under the heading “Plan of Distribution” on page 3. We will receive none of the
proceeds from the sale of any of the common stock to which this prospectus
relates. See “Use of Proceeds and Expenses of the Offering” on page 2. We will
pay all expenses incurred in connection with the offering described in this
prospectus.
The
prices at which the selling stockholder may sell the shares of common stock
that
are part of this offering will be determined by the prevailing market price
for
the shares at the time the shares are sold, a price related to the prevailing
market price, at negotiated prices or prices determined, from time to time
by
the selling stockholder. See “Plan of Distribution” on page 3.
Our
common stock is listed on the American Stock Exchange under the symbol “WTT”. On
November 13, 2007, the last reported sale price of our common stock on the
American Stock Exchange was $1.62 per share. You should read this prospectus
carefully before you invest in any of our securities.
INVESTING
IN OUR COMMON STOCK INVOLVES CERTAIN RISKS. SEE “RISK
FACTORS” BEGINNING
ON PAGE 3.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION
HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS
IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The
date of this prospectus is November 14, 2007.
TABLE
OF CONTENTS
|
THE
COMPANY
|
2
|
|
RISK
FACTORS
|
2
|
|
USE
OF PROCEEDS AND EXPENSES OF THE OFFERING
|
2
|
|
SELLING
STOCKHOLDERS
|
2
|
|
PLAN
OF DISTRIBUTION
|
3
|
|
LEGAL
MATTERS
|
5
|
|
EXPERTS
|
5
|
|
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
|
5
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
6
|
|
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
|
6
|
|
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
|
7
|
THE
COMPANY
Wireless
Telecom Group, Inc. and its operating subsidiaries, Boonton Electronics
Corporation, Microlab/FXR and Willtek Communications GmbH, develop, manufacture
and market a wide variety of electronic noise sources, electronic testing and
measuring instruments including power meters, voltmeters and modulation meters,
high-power passive microwave components and handset production testers for
wireless products. Our products have historically been primarily used to test
the performance and capability of cellular/PCS and satellite communication
systems and to measure the power of RF and microwave systems. Other applications
include radio, radar, wireless local area network (WLAN) and digital television.
Our customers are located primarily in the United States in addition to
internationally. We were previously known as Noise Com. We went public in 1991
and were reincorporated in our current form in New Jersey in 1994. Our common
stock trades on the American Stock Exchange under the symbol “WTT.”
Our
principal executive offices are located at 25 Eastmans Road, Parsippany, New
Jersey 07054, and our telephone number is (973) 386-9696. Our website is located
at www.wirelesstelecomgroup.com. Information on our website is not, and should
not be considered, part of this prospectus.
RISK
FACTORS
An
investment in our common stock involves a high degree of risk. You should
carefully consider the specific risks set forth under the caption “Risk Factors”
in any of our filings with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 incorporated by reference herein
before making an investment decision to buy our common stock. If any of the
events described in these risks actually occurs, the market price of our common
stock could decline, and you may lose all or part of the money you paid to
buy
our common stock. For more information, see “Where You Can Find More
Information.”
USE
OF PROCEEDS AND EXPENSES OF THE OFFERING
We
will
not receive any of the proceeds from the sale of the shares offered by the
selling stockholder. We have agreed pursuant to our agreements with the selling
stockholder to pay the fees, costs and expenses of this offering, which are
estimated to be $33,500, inclusive of our registration fees, legal and
accounting fees, printing costs and other miscellaneous fees and expenses.
SELLING
STOCKHOLDER
The
following table sets forth, in the first column, the name of the selling
stockholder and the number of shares being registered for sale as of the date
of
the prospectus and sets forth, in the second column, the number of shares of
common stock known by us to be beneficially owned by the selling stockholder
as
of November 14, 2007. The shares offered by this prospectus may be offered
from
time to time by the selling stockholder.
The
third
column lists the shares of common stock being offered by this prospectus by
the
selling stockholder. The fourth column assumes the sale of all of the shares
offered by the selling stockholder pursuant to this prospectus. Unless otherwise
noted below, the selling stockholder is not a broker-dealer. The selling
stockholder may sell all, some or none of their shares in this offering. See
“Plan of Distribution.”
|
|
|
Beneficial
Ownership
|
|
Shares
Registered
|
|
Beneficial Ownership
After this Offering (2)
|
|
|
Name
|
|
Prior to this
Offering (1)
|
|
in this
Offering
|
|
Number of
Shares
|
|
Percent
(3)
|
|
|
Investcorp
Technology Ventures, L.P.
|
|
|
6,472,667
|
|
|
6,472,667
|
|
|
-0-
|
|
|
0
|
%
|
|
(1)
|
Beneficial
ownership as of November 14, 2007, for the selling stockholder based
upon
information provided by the selling stockholder known to
us.
|
|
(2)
|
Assumes
the sale of all shares of common stock registered pursuant to this
prospectus, although the selling stockholder is under no obligation
known
to us to sell any shares of common stock at this
time.
|
|
(3)
|
Based
on 25,886,351 shares of common stock outstanding on August 9, 2007.
The
shares issuable under stock options, warrants and other derivative
securities to acquire our common stock that are currently exercisable
or
convertible within 60 days after November 14, 2007, are treated as
if
outstanding for computing the percentage ownership of the person
holding
these securities, but are not treated as outstanding for purposes
of
computing the percentage ownership of any other person. Unless otherwise
indicated, also includes shares owned by a spouse, minor children,
by
relatives sharing the same home, and entities owned or controlled
by the
named person.
|
PLAN
OF DISTRIBUTION
We
are
registering the shares of common stock to permit the resale of these shares
of
common stock by the holders of the shares of common stock from time to time
after the date of this prospectus. We will not receive any of the proceeds
from
the sale by the selling stockholders of the shares of common stock. We will
pay
all fees and expenses incident to our obligation to register the shares of
common stock.
The
selling stockholder may sell all or a portion of the shares of common stock
beneficially owned by them and offered hereby from time to time directly or
through one or more underwriters, broker-dealers or agents. If the shares of
common stock are sold through underwriters or broker-dealers, the selling
stockholder will be responsible for underwriting discounts or commissions or
agent's commissions. The shares of common stock may be sold on the American
Stock Exchange or otherwise, in one or more transactions at fixed prices, at
prevailing market prices at the time of the sale, at varying prices determined
at the time of sale, or at negotiated prices. The selling stockholder will
act
independently of us in making decisions regarding the timing, manner and size
of
each sale. These sales may be effected in transactions, which may involve
crosses or block transactions,
| |
·
|
on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of
sale;
|
| |
·
|
in
the over-the-counter market;
|
| |
·
|
in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
|
| |
·
|
through
the writing of options, whether such options are listed on an options
exchange or otherwise;
|
| |
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| |
·
|
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| |
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| |
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| |
·
|
privately
negotiated transactions;
|
| |
·
|
pursuant
to Rule 144 under the Securities
Act;
|
| |
·
|
broker-dealers
may agree with the selling securityholders to sell a specified number
of
such shares at a stipulated price per
share;
|
| |
·
|
a
combination of any such methods of sale;
and
|
| |
·
|
any
other method permitted pursuant to applicable
law.
|
If
the
selling stockholder effects such transactions by selling shares of common stock
to or through underwriters, broker-dealers or agents, such underwriters,
broker-dealers or agents may receive commissions in the form of discounts,
concessions or commissions from the selling stockholder or commissions from
purchasers of the shares of common stock for whom they may act as agent or
to
whom they may sell as principal (which discounts, concessions or commissions
as
to particular underwriters, broker-dealers or agents may be in excess of those
customary in the types of transactions involved). In connection with sales
of
the shares of common stock or otherwise, the selling stockholder may enter
into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the shares of common stock in the course of hedging in positions they
assume. The selling stockholder may also sell shares of common stock short
and
deliver shares of common stock covered by this prospectus to close out short
positions. The selling stockholder may also loan or pledge shares of common
stock to broker-dealers that in turn may sell such shares.
The
selling stockholder may pledge or grant a security interest in some or all
of
the shares of common stock owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and
sell
the shares of common stock from time to time pursuant to this prospectus or
any
amendment to this prospectus under Rule 424(b)(3) or other applicable provision
of the Securities Act of 1933, as amended (the “Securities Act”), amending, if
necessary, the list of selling stockholders to include the pledgee, transferee
or other successors in interest as selling stockholders under this prospectus.
The selling stockholder also may transfer and donate the shares of common stock
in other circumstances in which case the transferees, donees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The
selling stockholder and any broker-dealer participating in the distribution
of
the shares of common stock will be deemed to be “underwriters” within the
meaning of the Securities Act, and any commission paid, or any discounts or
concessions allowed to, any such broker-dealer may be deemed to be underwriting
commissions or discounts under the Securities Act. At the time a particular
offering of the shares of common stock is made, a prospectus supplement, if
required, will be distributed which will set forth the aggregate amount of
shares of common stock being offered and the terms of the offering, including
the name or names of any broker-dealers or agents, any discounts, commissions
and other terms constituting compensation from the selling stockholder(s) and
any discounts, commissions or concessions allowed or reallowed or paid to
broker-dealers.
Under
the
securities laws of some states, the shares of common stock may be sold in such
states only through registered or licensed brokers or dealers. In addition,
in
some states the shares of common stock may not be sold unless such shares have
been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
There
can
be no assurance that the selling stockholder will sell any or all of the shares
of common stock registered pursuant to the shelf registration statement, of
which this prospectus forms a part.
The
selling stockholder and any other person participating in such distribution
will
be subject to applicable provisions of the Securities Exchange Act of 1934,
as
amended, and the rules and regulations thereunder, including, without
limitation, Regulation M of the Exchange Act, which may limit the timing of
purchases and sales of any of the shares of common stock by the selling
stockholder and any other participating person. Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of common
stock to engage in market-making activities with respect to the shares of common
stock. All of the foregoing may affect the marketability of the shares of common
stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of common stock.
We
will
pay all expenses of the registration of the shares of common stock, estimated
to
be $33,500 in total, including, without limitation, Securities and Exchange
Commission filing fees. We will indemnify the selling stockholder against
liabilities, including some liabilities under the Securities Act, or the selling
stockholder will be entitled to contribution. We may be indemnified by the
selling stockholder against civil liabilities, including liabilities under
the
Securities Act, that may arise from any written information furnished to us
by
the selling stockholder specifically for use in this prospectus, or we may
be
entitled to contribution.
Once
sold
under the shelf registration statement, of which this prospectus forms a part,
the shares of common stock will be freely tradable in the hands of persons
other
than our affiliates.
LEGAL
MATTERS
The
validity of the issuance of the shares of our common stock described herein
has
been passed upon for us by Greenberg Traurig, LLP, New York, New
York.
EXPERTS
The
consolidated financial statements of Wireless Telecom Group, Inc. appearing
in
its Annual Report (Form 10-K) as of and for the year ended December 31, 2006
have been audited by PKF, Certified Public Accountants, A Professional
Corporation, as set forth in their report thereon included therein, and
incorporated herein by reference. Further, the comparative consolidated
financial statements of Wireless Telecom Group, Inc. as of the year ended
December 31, 2005, and for the years ended 2005 and 2004 appearing in its Annual
Report (Form 10-K) for the year ended December 31, 2006, were audited by Lazar,
Levine and Felix, LLP and Ernst and Young AG, as set forth in their report
thereon included therein, and incorporated herein by reference.
Such
financial statements have been incorporated herein by reference in reliance
upon
such report given on the authority of such firm as an expert in accounting
and
auditing.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents instead of having to repeat the information in this prospectus.
The information incorporated by reference is considered to be part of this
prospectus, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the documents
listed below and any future filings made with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Exchange Act between the date of this prospectus
and
the termination of the offering and also between the date of the initial
registration statement and prior to effectiveness of the registration
statement:
| |
·
|
Our
Annual Report on Form 10-K for the fiscal year ended December 31,
2006
filed on April 2, 2007;
|
| |
·
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 2007
filed on May 14, 2007;
|
| |
·
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2007
filed on August 14, 2007;
|
| |
·
|
Our
Registration Statement on Form 8-A filed on April 27,
1993.
|
This
prospectus is part of a registration statement on Form S-3 we have filed with
the SEC under the Securities Act. This prospectus does not contain all of the
information in the registration statement. We have omitted certain parts of
the
registration statement, as permitted by the rules and regulations of the SEC.
You may inspect and copy the registration statement, including exhibits, at
the
SEC’s public reference room or website. Our statements in this prospectus about
the contents of any contract or other document are not necessarily complete.
You
should refer to the copy of each contract or other document we have filed as
an
exhibit to the registration statement for complete information.
You
may
request a copy of any or all of the information incorporated by reference,
at no
cost, by writing or telephoning us at the following address:
Wireless
Telecom Group, Inc.
25
Eastmans Road
Parsippany,
New Jersey 07054
(973)
386-9696
WHERE
YOU CAN FIND MORE INFORMATION
We
file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s public
reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at 1-800-SEC-0330 for further information on the public reference
room. Our filings with the SEC are also available to the public at the SEC’s
website at http://www.sec.gov. You
may
also obtain copies of the documents at prescribed rates by writing to the SEC’s
Public Reference Section at 100 F Street, N.E., Washington, D.C. 20549.
Our
website is located at www.wirelesstelecomgroup.com. The
contents of our website are not part of this prospectus and should not be relied
upon with respect thereto.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus, including the documents that we incorporate by reference, contains
forward-looking statements within the meaning of Section 27A of the Securities
Act and Section 21E of the Securities Exchange Act of 1934, as amended. Any
statements about our expectations, beliefs, plans, objectives, assumptions
or
future events or performance are not historical facts and may be
forward-looking. These statements are often, but not always, made through the
use of words or phrases such as “anticipate,” “estimate,” “plans,” “projects,”
“continuing,” “ongoing,” “expects,” “management believes,” “we believe,” “we
intend” and similar words or phrases. Accordingly, these statements involve
estimates, assumptions and uncertainties which could cause actual results to
differ materially from those expressed in them. Any forward-looking statements
are qualified in their entirety by reference to the factors discussed in this
prospectus or incorporated by reference.
Forward-looking
statements are subject to known and unknown risks and uncertainties that could
cause actual results to differ materially from those expected or implied by
the
forward-looking statements. Our actual results could differ materially from
those anticipated in the forward-looking statements for many reasons, including
the factors described in the reports referenced in the section entitled “Risk
Factors” in this prospectus.
You
should not unduly rely on these forward-looking statements, which speak only
as
of the date on which it is made. We undertake no obligation to publicly revise
any forward-looking statement to reflect circumstances or events after the
date
of this prospectus or to reflect the occurrence of unanticipated events. You
should, however, review the factors and risks we describe in the reports we
file
from time to time with the SEC after the date of this prospectus. The reports
we
file from time to time with the SEC are available to the public over the
Internet at the SEC’s website http://www.sec.gov
as
described under the heading “Where You Can Find More Information.”
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT
LIABILITIES
New
Jersey Business Corporation Act
New
Jersey’s Business Corporation Act permits New Jersey corporations to include in
their certificates of incorporation a provision eliminating or limiting the
personal liability of directors and officers for damages arising from certain
breaches of fiduciary duty. Our certificate of incorporation includes a
provision eliminating the personal liability of our directors and officers
of
the company and its stockholders for damages to the maximum extent permitted
by
New Jersey law, including exculpation for acts or omissions in violation of
directors’ and officers’ fiduciary duties of care. Under current New Jersey law,
liability is not eliminated in the case of a breach of a director’s or officer’s
duty of loyalty (i.e., the duty to refrain from transactions involving improper
conflicts of interest) to the company or its stockholders, the failure to act
in
good faith, the knowing violation of law or the obtainment of an improper
personal benefit. Our certificate of incorporation does not have an effect
on
the availability of equitable remedies (such as an injunction or rescissions)
for breach of fiduciary duty. However, as a practical matter, equitable remedies
may not be available in particular circumstances. The Company also has in effect
under a policy effective July 1, 2007, and expiring on October 1, 2008 insurance
covering all of its directors and officers against certain liabilities and
reimbursing the company for obligations for which it occurs as a result of
its
indemnification of such directors, officers and employees.
Wireless
Telecom Group INC.
WIRELESS
TELECOM GROUP, INC.
Common
Stock
Prospectus
November
14, 2007
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses
of Distribution
The
following table lists the costs and expenses payable by the registrant in
connection with the sale of the common stock covered by this prospectus other
than any sales commissions or discounts, which expenses will be paid by us.
All
amounts shown are estimates except the SEC registration fee.
|
SEC
registration fee
|
|
$
|
420
|
|
|
Legal
fees and expenses
|
|
$
|
25,000
|
|
|
Accounting
fees and expenses
|
|
$
|
7,500
|
|
|
Miscellaneous
fees and expenses
|
|
$
|
580
|
|
|
Total
|
|
$
|
33,500
|
|
Item
15. Indemnification
of Directors and Officers
Under
the
Business Corporation Act of the State of New Jersey (“New Jersey Law”), we can
indemnify our directors and officers against liabilities they may incur in
such
capacities, including liabilities under the Securities Act of 1933, as amended
(the “Securities Act”). Our certificate of incorporation includes a provision
eliminating or limiting the personal liability of directors and officers for
damages arising from certain breaches of fiduciary duty. Our certificate of
incorporation includes a provision eliminating the personal liability of our
directors and officers of the company and its stockholders for damages to the
maximum extent permitted by New Jersey law, including exculpation for acts
or
omissions in violation of directors’ and officers’ fiduciary duties of care.
Under current New Jersey law, liability is not eliminated in the case of a
breach of a director’s or officer’s duty of loyalty (i.e., the duty to refrain
from transactions involving improper conflicts of interest) to the company
or
its stockholders, the failure to act in good faith, the knowing violation of
law
or the obtainment of an improper personal benefit. Our certificate of
incorporation does not have an effect on the availability of equitable remedies
(such as an injunction or rescissions) for breach of fiduciary duty. However,
as
a practical matter, equitable remedies may not be available in particular
circumstances.
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Item
16.
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Exhibits
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| |
|
|
|
Exhibit
Number
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|
|
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5.1
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Opinion
of Greenberg Traurig, LLP, counsel to the registrant
|
| |
|
|
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23.1
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Consent
of PKF, Certified Public Accountants, A Professional Corporation,
an
Independent Registered Public Accounting Firm
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| |
|
|
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23.2
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Consent
of Greenberg Traurig, LLP (contained in Exhibit 5.1)
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| |
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23.3
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Consent
of Lazar, Levine and Felix, LLP, an Independent Registered Public
Accounting Firm
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| |
|
|
|
23.4
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Consent
of Ernst & Young, AG Wirtschaftsprufungsgesellschaft, an Independent
Registered Public Accounting Firm
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| |
|
|
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24.1
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Power
of attorney (contained on signature
page)
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Item
17. Undertakings
(a) The
undersigned registrant, hereby undertakes:
(1)
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.
(2)
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.
(3)
That
for the purpose of determining liability under the Securities Act to any
purchaser:
(a)
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed
to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement, and
(b)
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness
or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating to
the
securities in the registration statement to which that prospectus relates,
and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into
the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made
in
any such document immediately prior to such effective date.
(4)
That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities, 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:
(a)
Any
preliminary prospectus or prospectus of the undersigned registrant relating
to
the offering required to be filed pursuant to Rule 424;
(b)
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;
(c)
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
(d)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b)
The
undersigned registrant hereby further 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
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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c)
The
undersigned registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given,
the
latest annual report to security holders that is incorporated by reference
in
the prospectus and furnished pursuant to and meeting the requirements of Rule
14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to
be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Parsippany, State of New Jersey, on this 14th day
of
November 2007.
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|
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By:
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/s/
James M. Johnson
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James
M. Johnson
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Vice
Chairman and Chief Executive Officer
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(principal
executive officer)
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|
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By:
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|
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Paul
Genova
|
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President
and Chief Financial Officer
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| |
(principal
accounting and financial officer)
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POWER
OF ATTORNEY
KNOW
ALL
PERSONS BY THESE PRESENT, that each person whose signature appears below
constitutes and appoints James M. Johnson and Paul Genova and each or either
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 or any abbreviated registration statement and any amendments thereto
filed pursuant to Rule 462(b) increasing the number of securities for which
registration is sought) 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 of 1933, as amended, this registration
statement has been signed by the following persons in the capacities and on
the
dates indicated:
|
/s/
James M. Johnson
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|
Vice
Chairman and Chief Executive Officer
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|
November
14, 2007
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|
James
M. Johnson
|
|
(Principal
Executive Officer)
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|
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| |
|
|
|
|
|
/s/
Paul Genova
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|
Chief
Financial Officer
|
|
November
14, 2007
|
|
Paul
Genova
|
|
(Principal
Accounting and Financial Officer)
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|
|
| |
|
|
|
|
|
/s/
Savio W. Tung
|
|
Director
|
|
November
14, 2007
|
|
Savio
W. Tung
|
|
|
|
|
| |
|
|
|
|
|
/s/
Hazem Ben-Gacem
|
|
Director
|
|
November
14, 2007
|
|
Hazem
Ben-Gacem
|
|
|
|
|
| |
|
|
|
|
|
/s/Henry
L. Bachman
|
|
Director
|
|
November
14, 2007
|
|
Henry
L. Bachman
|
|
|
|
|
|
/s/
Rick Mace
|
|
Director
|
|
November
14, 2007
|
|
Rick
Mace
|
|
|
|
|
| |
|
|
|
|
|
/s/
Adrian Nemcek
|
|
Director
|
|
November
14, 2007
|
|
Adrian
Nemcek
|
|
|
|
|
| |
|
|
|
|
|
/s/
Joseph Garrity
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|
Director
|
|
November
14, 2007
|
|
Joseph
Garrity
|
|
|
|
|
| |
|
|
|
|
EXHIBIT
INDEX
|
Exhibit
Number
|
|
|
|
5.1
|
|
Opinion
of Greenberg Traurig, LLP, counsel to the registrant
|
| |
|
|
|
23.1
|
|
Consent
of PKF, Certified Public Accountants, A Professional Corporation,
an
Independent Registered Public Accounting Firm
|
| |
|
|
|
23.2
|
|
Consent
of Greenberg Traurig, LLP (contained in Exhibit 5.1)
|
| |
|
|
|
23.3
|
|
Consent
of Lazar, Levine and Felix, LLP, an Independent Registered Public
Accounting Firm
|
| |
|
|
|
23.4
|
|
Consent
of Ernst & Young, AG Wirtschaftsprufungsgesellschaft, an Independent
Registered Public Accounting Firm
|
| |
|
|
|
24.1
|
|
Power
of attorney (contained on signature
page)
|