As filed with the Securities and Exchange Commission on April 30, 2001.
(File No. 333-______)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
WIRELESS TELECOM GROUP, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
New Jersey 22-2582295
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
E. 64 Midland Avenue, Paramus, New Jersey 07652
(Address of principal executive offices including zip code)
2000 Stock Option Plan
(Full title of the plan)
Edward J. Garcia
c/o Wireless Telecom Group, Inc.
E. 64 Midland Avenue
Paramus, New Jersey 07652
(Name and address of agent for service)
(201) 261-8797
(Telephone number, including area code, of agent for service)
Copy to:
Robert H. Cohen, Esq.
Morrison Cohen Singer & Weinstein, LLP
750 Lexington Avenue, 8th Floor
New York, NY 10022
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Titles of Securities Amount to Offering Price Aggregate Offering Amount of
to be Registered be Registered(1)(2) Per Share Price(3) Registration Fee(3)
-------------------- ------------------- --------- --------- -------------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,500,000 shares $2.30 $3,450,000 $862.50
$.01 per share
----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares of common stock, par value $.01 per share ("Common Stock") issuable
upon the exercise of options granted under the Wireless Telecom Group, Inc.
2000 Stock Option Plan.
(2) Pursuant to Rule 416, there are also being registered an indeterminate
number of shares of Common Stock as may become issuable to prevent
dilution, stock splits, stock dividends or other similar transactions.
(3) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
calculating the registration fee, based upon the average of the high and
low sales prices of the Registrant's Common Stock as reported on the
American Stock Exchange on April 27, 2001 and a registration fee rate of
.000250.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Note: The document(s) containing the employee benefit plan
information required by Item 1 of this Form and the statement of availability of
registrant information, employee benefit plan annual reports and other
information required by Item 2 of this Form will be sent or given to
participants as specified by Rule 428. In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. The Registrant shall maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, the Registrant shall furnish to
the Commission or its staff a copy or copies of all of the documents included in
such file.
Explanatory Note
We have prepared this Registration Statement in accordance with the
requirements of Form S-8 under the Securities Act of 1933, as amended, (the
"Securities Act") to register 1,500,000 shares of common stock, par value $.01
per share ("Common Stock"), (including additional shares that may be reissued or
offered as a result of stock splits, stock dividends or similar transactions
relating to these shares) which we have reserved for issuance upon exercise of
stock options granted under the Wireless Telecom Group, Inc. 2000 Stock Option
Plan (the "Plan").
This registration statement also registers reoffers and resales of
120,000 shares of Common Stock issuable upon the exercise of options granted
under the Plan and acquired by selling stockholders who may be deemed
"affiliates" (as such term is defined in Rule 405 under the Securities Act) of
the Company. These securities may be reoffered and resold on a continuous or
delayed basis in the future under Rule 415 the Securities Act.
This registration statement contains two parts. The first part contains
a "reoffer prospectus" prepared in accordance with Part I of Form S-3 under the
Securities Act. The second part contains information required in the
registration statement pursuant to Part II of Form S-8.
REOFFER PROSPECTUS
120,000 Shares
WIRELESS TELECOM GROUP, INC.
Common Stock, $.01 par value
This Prospectus relates to the public offering and sale by certain
shareholders (the "Selling Shareholders") of up to 120,000 shares of common
stock, par value $.01 per share, which the Selling Shareholders have acquired
under the Wireless Telecom Group, Inc. 2000 Stock Option Plan.
The prices at which the Selling Shareholders may sell the shares will
be determined by the prevailing market price for the shares or in negotiated
transactions. We will not receive any proceeds from the sale of the shares.
Our common stock is listed on the American Stock Exchange under the
symbol "WTT".
This investment involves risk. See "Risk Factors" beginning at page 4
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is April 30, 2001
TABLE OF CONTENTS
Where You Can Find More Information.........................................1
Prospectus Summary..........................................................2
The Offering................................................................3
Risk Factors................................................................4
Use of Proceeds.............................................................7
Dilution....................................................................7
Plan of Distribution........................................................7
Selling Shareholders.......................................................10
Legal Matters..............................................................11
Experts....................................................................11
WHERE YOU CAN FIND MORE INFORMATION
We are a public company. We file annual, quarterly and special reports,
proxy statements and other information with the SEC. You may read and copy any
document we file with the SEC at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public at the SEC's web site at
http://www.sec.gov.
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. 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 Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934 until the Selling Shareholders sell all of their shares of common
stock. This prospectus is part of a registration statement we filed with the
SEC.
1. Annual Report on Form 10-K, for the fiscal year ended December
31, 2000; and
2. The description of the Registrant's Common Stock contained in its
Registration Statement on Form S-4/A dated June 13, 2000.
You may request a copy of these filings, at no cost, by oral request or
by writing to us at the following address:
Wireless Telecom Group, Inc.
East 64 Midland Avenue
Paramus, New Jersey 07652
(201) 261-8797
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. The Selling Shareholders will
not make an offer of these shares of common stock in any state where the offer
is not permitted. You should not assume that the information in this prospectus
or any supplement is accurate as of any date other than the date on the front of
those documents.
1
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this
prospectus. This summary is not complete and may not contain all of the
information that you should consider before investing in the securities. You
should read the entire prospectus carefully. Unless we otherwise say so, when we
discuss our outstanding securities, we exclude all of our shares of common stock
issuable upon the exercise of currently outstanding warrants and options and the
conversion of our convertible securities.
The Company
Wireless Telecom Group, Inc., a New Jersey corporation (the "Company"
or "Wireless"), develops, manufactures and markets a wide variety of electronic
noise sources and electronic testing and measuring instruments including power
meters, voltmeters and modulation meters. The Company's products have
historically been primarily used to test the performance and capability of
cellular/PCS and satellite communications systems, and to measure the power of
RF and microwave systems. Other applications include radio, radar, wireless
local area network (WLAN) and digital television.
On July 7, 2000, a newly formed, wholly-owned subsidiary of the
Company, WTT Acquisition Corp., merged with and into Boonton, a public entity.
Each share of Boonton common stock was converted into .79 shares of the
Company's common stock with aggregated consideration totaling 1,885,713 shares
of Wireless common stock. The merger was accounted for as a pooling of interests
and accordingly, all periods prior to the merger have been restated to include
the results of operations, financial position and cash flows of Boonton.
2
THE OFFERING
<TABLE>
<S> <C>
Securities Offered..............................120,000 shares of common stock acquired or to be
acquired by the Selling Shareholders upon the exercise
of options granted to them under our 2000 Stock Option
Plan. See "Selling Shareholders" and "Plan of Distribution."
Common Stock outstanding as of
April 30, 2001..................................17,835,977
Risk Factors....................................The securities offered hereby involve a high
degree of risk. Only investors who can bear the
loss of their entire investment should invest.
See "Risk Factors."
Use of Proceeds.................................We will not receive any of the proceeds when the
Selling Shareholders sell their shares of common
stock. We may, however, receive proceeds when
such Selling Shareholders exercise their options
to purchase our common stock. See "Use of
Proceeds."
Dividend Policy.................................We currently intend to retain all future earnings to
fund the development and growth of our business.
We do not anticipate paying cash dividends.
American Stock Exchange Symbol.................."WTT"
</TABLE>
3
RISK FACTORS
The following risk factors, in addition to the other information
contained in this prospectus, should be considered carefully by the shareholders
before making an investment decision. The ownership of Wireless common stock
involves risks, including those described below, which could adversely affect
the value of Wireless common stock. The risks described below are not the only
risks facing Wireless. Additional risks not presently known to us or that we
currently deem immaterial may also impair our business operations. Our business,
financial condition or results of operations could be materially adversely
affected by any of these risks. The trading price of our common stock could
decline due to any of these risks, and you may lose all or part of your
investment.
This Prospectus also contains forward-looking statements that involve
risks and uncertainties. Our actual results could differ materially from those
anticipated in these forward-looking statements as a result of certain factors,
including the risks faced by us described below and elsewhere in this
Prospectus.
Risks of Wireless Business
Wireless Faces Aggressive Competition And Rapid Technological Change In The
Information Services And Technology Marketplace
Wireless operates in an industry characterized by aggressive
competition, rapid technological change, evolving technology standards and short
product life cycles. Wireless competes against many companies that utilize
similar technology to that of Wireless, some of which are larger and have
substantially greater resources and expertise in financial, technical and
marketing areas than Wireless. Some of these companies are Agilent Technologies
(formerly Hewlett-Packard), IFR, Rhode and Schwarz, and Anritsu. Wireless
competes by having a niche in several product areas where it capitalizes on its
expertise in manufacturing products with unique specifications. Failure by
Wireless to respond to changing technologies, customer needs and industry
standards could have material adverse consequences to its business and results
of operations. Future operating results of Wireless will depend on the ability
of Wireless to:
o design, develop, introduce, deliver or obtain new and innovative
products and services on a timely and cost-effective basis;
o mitigate the effects of competitive pressures and volatility in the
information services and wireless telecommunications market on
revenues, pricing and margins;
o effectively manage the shift of its business mix; and
o attract and retain highly skilled personnel.
Failure By Wireless To Manage Growth Effectively Could Adversely Affect Its
Business
Current expansion plans of Wireless may place a significant strain on
its personnel and management resources and financial and management control
systems. Personnel, management resources and Wireless management and financial
control systems may not be adequate to address future expansion of its business
and operations. Failure by Wireless to maintain adequate
4
personnel and management resources or to upgrade its operating, management and
financial control systems or any difficulties encountered during such upgrades
could adversely affect its business. The success of Wireless' expansion plans
will depend in part on its ability to expand personnel and management resources
and to improve its management and financial control systems. Wireless may not be
successful in any of these regards.
Wireless Acquisition Strategy May Adversely Affect Its Financial Condition And
Performance
Wireless continues to look for opportunities to acquire businesses and
product lines. To that end, Wireless has had, and continues to have, discussions
with acquisition candidates. The level of this activity will vary from time to
time depending on the type of acquisition candidates Wireless identifies.
Acquiring additional businesses and product lines may require
additional capital and may have a significant impact on the financial position
and results of operations of Wireless. Acquisitions made with Wireless stock
could dilute existing shareholders. Wireless cannot assure the Selling
Stockholders that it will be successful in identifying acceptable acquisition
candidates or that any acquired operations will be profitable or will be
successfully integrated or that any such future acquisitions will not materially
and adversely affect its business, financial condition and results of
operations.
The ability of Wireless to accomplish its strategy will depend upon a
number of factors including, among other things, Wireless' ability to identify
acceptable acquisition candidates, to acquire the necessary funds for such
acquisitions, to consummate such acquisitions on terms favorable to it and to
promptly and profitably integrate the acquired operations into its operations.
Opportunities for growth through acquisitions, future operating results
and the success of acquisitions may be subject to the effects of, and changes
in, United States and foreign trade and monetary policies, laws and regulations,
political and economic developments, inflation rates, and the effect of taxes
and operating conditions.
Wireless Preferred Stock Could Delay, Deter Or Prevent A Change In Control
Although Wireless does not expect to issue Preferred Stock in the
foreseeable future, its Preferred Stock could be used to delay, defer or prevent
a change in control or be used to resist takeover offers opposed by management.
Under some circumstances, Wireless' Board of Directors could create impediments
to or frustrate persons seeking to effect a takeover or otherwise gain control
of Wireless by causing shares of Preferred Stock with voting or conversion
rights to be issued to a holder or holders who might side with its Board of
Directors in opposing a takeover bid that the Board of Directors determines to
be not in the best interest of Wireless and its stockholders.
Maintenance Of Listing On Amex
Wireless common stock is listed on the American Stock Exchange (the
AMEX), and Wireless is subject to the AMEX's maintenance requirements. Wireless'
failure to meet the AMEX's maintenance requirements may result in a delisting of
the common stock. Wireless cannot assure you that its common stock will not be
delisted by the AMEX. The determination by the AMEX to delist a company is not
based on a precise mathematical formula, but rather on a review of all relevant
facts and circumstances in light of the AMEX's policies. The AMEX will normally
consider delisting a company which:
5
o has stockholders' equity of less than $2,000,000 if such company has
sustained losses from continuing operations and/or net losses in two
of its three most recent fiscal years; or
o has sustained losses which are so substantial to its overall
operations or its existing financial resources, or its financial
condition has become so impaired that it appears questionable, in
the opinion of the AMEX, as to whether such company will be able to
continue operations and/or meet its obligations as they mature.
Wireless Stock Price Has Been Volatile
Wireless cannot assure you of the prices at which its common stock will
trade. The market prices for securities of companies such as Wireless
historically have been highly volatile. From January 1, 1999 to April 30, 2001,
the market price of Wireless common stock has ranged from a high of $9.88 per
share, to a low of $1.50 per share. The following factors may have a significant
impact on the market price of the common stock:
o announcements of technological innovations or new commercial
products by
o regulatory developments; Wireless or its competitors;
o disputes concerning patent or proprietary rights; and
o economic and other external factors, as well as period-to-period
fluctuations in financial results.
6
USE OF PROCEEDS
We will not receive any proceeds when the Selling Stockholders sell
their common stock to others. However, we may receive proceeds when the Selling
Stockholders exercise their options to acquire such common stock. We intend to
contribute such proceeds to working capital and to use such proceeds for general
corporate purposes.
DILUTION
Because our Selling Stockholders will offer and sell the common stock
covered by this Prospectus at various times at prices and at terms then
prevailing or at prices related to the then current market price or in
negotiated transactions, we have not included in this Prospectus information
about the dilution (if any) to the public arising from these sales.
PLAN OF DISTRIBUTION
Wireless is registering 120,000 shares on behalf of the Selling
Stockholders. All of the shares were originally issued by Wireless pursuant to
employee benefit plans. The Selling Stockholders named in the table below or
pledgees, donees, transferees or other successors-in-interest selling shares
received from a named selling Stockholder as a gift, partnership distribution or
other non-sale-related transfer after the date of this Prospectus may sell the
shares from time to time. The Selling Stockholders will act independently of
Wireless in making decisions with respect to the timing, manner and size of each
sale. The sales may be made on one or more exchanges or otherwise, at prices and
at terms then prevailing or at prices related to the then current market price,
or in negotiated transactions. The Selling Stockholders may effect such
transactions by selling the shares to or through broker-dealers or directly to
purchasers (in the event of a private sale). The shares may be sold by one or
more of, or a combination of, the following:
o a block trade in which the broker-dealer so engaged will attempt to
sell the shares as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this Prospectus;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers; and
o in privately negotiated transactions.
To the extent required, this Prospectus may be amended or supplemented
from time to time to describe a specific plan of distribution. In effecting
sales, broker-dealers engaged by the Selling Stockholders may arrange for other
broker- dealers to participate in the resales.
The Selling Stockholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with Selling Stockholders. The
Selling Stockholders may also sell shares short and redeliver the shares to
close out such short positions. The Selling Stockholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this Prospectus.
7
The Selling Stockholders also may loan or pledge the shares to a broker-dealer.
The broker-dealer may sell the shares so loaned, or upon a default the
broker-dealer may sell the pledged shares pursuant to this Prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from Selling Stockholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both. Usual and
customary brokerage fees will be paid by the Selling Stockholders.
Broker-dealers or agents and any other participating broker-dealers or the
Selling Stockholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. Because Selling
Stockholders may be deemed to be "underwriters" within the meaning of Section
2(11) of the Securities Act, the Selling Stockholders will be subject to the
prospectus delivery requirements of the Securities Act. In addition, any
securities covered by this Prospectus which qualify for sale pursuant to Rule
144 promulgated under the Securities Act may be sold under Rule 144 rather than
pursuant to this Prospectus. The Selling Stockholders have advised Wireless that
they have not entered into agreements, understandings or arrangements with any
underwriters or broker-dealers regarding the sale of their securities. There is
no underwriter or coordinating broker acting in connection with the proposed
sale of shares by Selling Stockholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to our common stock for a specified
period prior to the commencement of such distribution. In addition, each Selling
Stockholder will be subject to applicable provisions of the Exchange Act and the
associated rules and regulations under the Exchange Act, including Regulation M,
which provisions may limit the timing of purchases and sales of shares of our
common stock by the Selling Stockholders. Wireless will make copies of this
Prospectus available to the Selling Stockholders and has informed them of the
need for delivery of copies of this Prospectus to purchasers at or prior to the
time of any sale of the shares.
Wireless will file a supplement to this Prospectus, if required,
pursuant to Rule 424(b) under the Securities Act upon being notified by a
Selling Stockholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
o the name of each such Selling Stockholder and of the participating,
o broker-dealer(s),
o the number of shares involved,
o the price at which such shares were sold,
8
o the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable,
o that such broker-dealer(s) did not conduct any investigation to
verify,
o the information set out or incorporated by reference in this
Prospectus, and
o other facts material to the transaction.
Wireless will bear all costs, expenses and fees in connection with the
registration of the shares. The Selling Stockholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The Selling
Stockholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act. The Selling Stockholders
have agreed to indemnify certain persons, including broker-dealers and agents,
against certain liabilities in connection with the offering of the shares,
including liabilities arising under the Securities Act.
9
SELLING STOCKHOLDERS
The shares of common stock to which this prospectus relates are being
registered for reoffers and resales by the Selling Stockholders who have
acquired or may acquire such common stock pursuant to the exercise of options
granted under the Plan. The Selling Stockholders named below may resell all, a
portion or none of their shares of common stock, from time to time.
Participants under the Plan who are deemed to be "affiliates" of
Wireless and who may acquire Common stock under the Plan may be added to the
Selling Stockholders listed below from time to time by use of a prospectus
supplement filed pursuant to Rule 424(b) under the Securities Act. An
"affiliate" is defined in Rule 405 under the Securities Act as a "person that
directly, or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control" with Wireless Telecom Group, Inc.
The table below sets forth with respect to each Selling Stockholder who
is an affiliate of Wireless, the number of shares of Common Stock beneficially
owned before the sale of the common stock offered hereby, the number of shares
of Common Stock to be sold hereby, the number of shares of Common Stock
beneficially owned after the sale of the Common Stock offered hereby, and the
percent of the outstanding shares of common stock owned before and after the
sale of the common stock offered hereby.
<TABLE>
<CAPTION>
COMMON STOCK
BENEFICIALLY OWNED
BEFORE SELLING COMMON STOCK WHICH COMMON STOCK PERCENTAGE OF COMMON
SELLING STOCKHOLDER MAY BE SOLD PURSUANT BENEFICIALLY OWNED STOCK OWNED AFTER
STOCKHOLDERS REOFFER(1) TO THIS PROSPECTUS(2) AFTER REOFFER(1) REOFFER(3)
------------------------- --------------------- ---------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Edward J. Garcia, 237,000 100,000 237,000 1.3%
Chairman of the Board,
Chief Executive Officer
and President(4)
Marc Wolfsohn, -0- 20,000 -0- *
Chief Financial Officer
</TABLE>
*Represents less than 1%
(1) Does not include shares of common stock that may be acquired by the
Selling Stockholders upon exercise of options that have not vested within
60 days of this prospectus. The inclusion in this prospectus of the stated
number of shares does not constitute a commitment to sell any or all of
such shares. The number of shares of common stock offered shall be
determined from time to time by each Selling Stockholder at his or her
sole discretion.
(2) Includes shares of common stock underlying options granted to the Selling
Stockholders under the 2000 Stock Option Plan, whether or not exercisable
as of, or within 60 days of, the date of this prospectus.
(3) Based on an aggregate of 17,835,977 shares of common stock outstanding as
of April 30, 2001.
10
(4) Includes 75,000 shares of common stock and options to purchase 162,000
shares of common stock vested and exercisable within 60 days of this
Prospectus. Does not include options to purchase 358,000 shares of common
stock not exercisable within 60 days hereof.
LEGAL MATTERS
The legality of Wireless common stock offered by this prospectus will
be passed upon for Wireless by Morrison Cohen Singer & Weinstein, LLP, New York,
New York. Members of Morrison Cohen Singer & Weinstein, LLP hold equity
securities in Wireless.
EXPERTS
The balance sheets as of December 31, 2000 and 1999 and the related
statements of operations, changes in stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 2000 included in
the Annual Report on Form 10-K for the fiscal year ended December 31, 2000 which
is incorporated by reference in this prospectus have been audited by, and are
incorporated by reference herein in reliance upon the report of Lazar Levine &
Felix LLP, independent auditors, given on the authority of that firm as experts
in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Section 14A:2-7(3) of the New Jersey Business Corporation Act permits a
corporation to provide in its Certificate of Incorporation that a director or
officer shall not be personally liable to the corporation or its stockholders
for breach of any duty owed to the corporation of its stockholders, except that
such provision shall not relieve a director or officer from liability for any
breach of duty based upon an act or omission (a) in breach of such persons' duty
of loyalty to the corporation or its stockholders, (b) not in good faith or
involving a knowing violation of law or (c) resulting in receipt by such person
of any improper personal benefit. The Registrant's Certificate of Incorporation
includes limitations on the liability of officers and directors to the full
extent permitted by New Jersey law.
The Registrant's Board of Directors has authorized the Company to
provide a general indemnification of its officers, directors and employees
regarding any claims or liabilities incurred in the course of their employment.
Section 14A:3-5 of the New Jersey Business Corporation Act provides that a
corporation may indemnify its directors, officers, employees and agents against
judgments, fines, penalties, amounts paid in settlement, and expenses, including
attorney's fees, resulting from various types of legal actions or proceedings if
the actions of the party being indemnified meet the standards of conduct
specified therein. Determinations concerning whether or not the applicable
standard of conduct has been met can be made by (a) a disinterested majority of
the Board of Directors, (b) independent legal counsel, or (c) an affirmative
vote of a majority of shares held by the stockholders. No indemnification is
permitted to be made to or on behalf of a corporate director, officer, employee
or agent if a judgment or other final adjudication adverse to such person
establishes that his acts or omissions (a) were in breach of his duty of loyalty
in the corporation or its stockholders, (b) were not in good faith or involved a
knowing violation of law or (c) resulting in receipt by such person of an
improper personal benefit.
The Company has in effect, under a policy effective January 19, 2001
and expiring on January 19, 2002, insurance covering all of its directors and
officers against certain liabilities and
11
reimbursing the Company for obligations for which it incurs as a result of its
indemnification of such directors, officers and employees.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling Wireless
pursuant to the foregoing provisions, Wireless has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
At present, there is no pending litigation or proceeding involving a
director, officer, employee, or other agent of Wireless in which indemnification
is being sought, nor is Wireless aware of any threatened litigation that may
result in a claim for indemnification by any director, officer, employee, or
other agent of Wireless.
12
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant
with the Securities and Exchange Commission (the "Commission") are incorporated
by reference in this Registration Statement:
a) Annual Report on Form 10-K for the fiscal year ended
December 31, 2000; and
b) The description of the Registrant's Common Stock contained
in its Registration Statement on Form S-4/A dated June 13, 2000.
All documents 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") subsequent to the date of this Registration Statement and
prior to the termination of the offering made hereby shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such documents. Any statement contained in this
Registration Statement, in a supplement to this Registration Statement or in a
document 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 subsequently filed
supplement to this Registration Statement or in any document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
II-1
USE OF PROCEEDS
We will not receive any proceeds when the Selling Stockholders sell
their common stock to others. However, we may receive proceeds when the Selling
Stockholders exercise their options to acquire such common stock. We intend to
contribute such proceeds to working capital and to use such proceeds for general
corporate purposes.
DETERMINATION OF OFFERING PRICE
The Selling Stockholders may sell their shares of common stock through
public or private transactions at current market prices, or at previously
negotiated prices.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(i) Limitation of Liability of Directors and Officers. Section
14A:2-7(3) of the New Jersey Business Corporation Act permits a corporation to
provide in its Certificate of Incorporation that a director or officer shall not
be personally liable to the corporation or its stockholders for breach of any
duty owed to the corporation of its stockholders, except that such provision
shall not relieve a director or officer from liability for any breach of duty
based upon an act or omission (a) in breach of such persons' duty of loyalty to
the corporation or its stockholders, (b) not in good faith or involving a
knowing violation of law or (c) resulting in receipt by such person of any
improper personal benefit. The Registrant's Certificate of Incorporation
includes limitations on the liability of officers and directors to the full
extent permitted by New Jersey law.
(ii) Indemnification of Directors and Officers. The
Registrant's Board of Directors has authorized the Company to provide a general
indemnification of its officers, directors and employees regarding any claims or
liabilities incurred in the course of their employment. Section 14A:3-5 of the
New Jersey Business Corporation Act provides that a corporation may indemnify
its directors, officers, employees and agents against judgments, fines,
penalties, amounts paid in settlement, and expenses, including attorney's fees,
resulting from various types of legal actions or proceedings if the actions of
the party being indemnified meet the standards of conduct specified therein.
Determinations concerning whether or not the applicable standard of conduct has
been met can be made by (a) a disinterested majority of the Board of Directors,
(b) independent legal counsel, or (c) an affirmative vote of a majority of
shares held by the stockholders. No indemnification is permitted to be made to
or on behalf of a corporate director, officer, employee or agent if a judgment
or other final adjudication adverse to such person establishes that his acts or
omissions (a) were in breach of his duty of loyalty in the corporation or its
stockholders, (b) were not in good faith or involved a knowing violation of law
or (c) resulting in receipt by such person of an improper personal benefit.
(iii) Insurance. The Company has in effect, under a policy
effective January 19, 2001 and expiring on January 19, 2002, insurance covering
all of its directors and officers
II-2
against certain liabilities and reimbursing the Company for obligations for
which it incurs as a result of its indemnification of such directors, officers
and employees.
Item 7. Exemption From Registration.
Not applicable
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 2000 Stock Option Plan of the Registrant.
5 Opinion of Morrison Cohen Singer & Weinstein, LLP
23.1 Consent of Lazar, Levine & Company LLP
23.2 Consent of Morrison Cohen Singer & Weinstein, LLP
(contained in Exhibit 5)
</TABLE>
Item 9. Undertakings.
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, 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;
(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 (i) and (ii) do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Company pursuant to section 13 or section 15(d)
of the Exchange Act that are incorporated by reference in the
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
II-3
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.
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 section 15(d) of the
Exchange Act and each filing of the Plan's annual report pursuant to section
15(d) of the Exchange Act that are 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.
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 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 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.
II-4
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 New York, state of New York, on the 27th day of April
2001.
WIRELESS TELECOM GROUP, INC.
(Registrant)
By: /s/ Edward Garcia
________________________________
Edward Garcia
Chairman of the Board and Chief Executive Officer
In accordance with the requirements of the Securities Act, this
Registration Statement was signed by the following persons in the capacities and
on the dates stated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Edward Garcia
____________________________________ Chairman of the Board and April 27, 2001
Edward Garcia Chief Executive Officer
/s/ Marc Wolfsohn
____________________________________ Chief Financial Officer April 27, 2001
Marc Wolfsohn
/s/ John Wilchek
____________________________________ Director April 27, 2001
John Wilchek
/s/ Demir Richard Eden
____________________________________ Director April 27, 2001
Demir Richard Eden
/s/ Franklin H. Blecher
____________________________________ Director April 27, 2001
Franklin H. Blecher
/s/ Henry L. Bachman
____________________________________ Director April 27, 2001
Henry L. Bachman
/s/ Reed DuBow
____________________________________ Controller April 27, 2001
Reed DuBow
</TABLE>
II-5
Exhibit Index
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
1.1 2000 Stock Option Plan of the Registrant
5 Opinion of Morrison Cohen Singer & Weinstein, LLP
23.1 Consent of Lazar, Levine & Company LLP
23.2 Consent of Morrison Cohen Singer & Weinstein, LLP
(contained in Exhibit 5)
</TABLE>
II-6
EXHIBIT 1.1
WIRELESS TELECOM GROUP, INC.
2000 STOCK OPTION PLAN
1. Purpose; Types of Awards: Construction.
The purpose of the Wireless Telecom Group, Inc. 2000 Stock
Option Plan (the "Plan") is to provide incentives to directors, officers,
employees, independent contractors, advisers and consultants of Wireless Telecom
Group, Inc. (the "Company") or any subsidiary of the Company which now exists or
hereafter is organized or acquired by the Company, to acquire a proprietary
interest in the Company, to increase their efforts on behalf of the Company and
to promote the success of the Company's business. The Plan is intended to permit
the Committee (as defined in Section 3 hereof) to issue options totaling
1,500,000 shares of the Company's common stock to directors, officers,
employees, independent contractors, advisers and consultants of the Company. The
Committee may grant options which shall constitute either "nonqualified stock
options" ("Nonqualified Stock Options") or "incentive stock options" ("Incentive
Stock Options") within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
2. Definitions.
As used in this Plan, the following words and phrases shall
have the meanings indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Common Stock" shall mean shares of common stock, par
value $.01 per share, of the Company.
(c) "Disability" shall mean the Optionee's incapacity due to
physical or mental illness, as a result of which the Optionee shall have been
absent from his duties of employment with the Company on a full-time basis for
the entire period of three (3) consecutive months, and within thirty (30) days
after written notice of termination is given by the Company (which notice may be
given within thirty (30) days before or at any time after the end of such three
month period) shall not have returned to the performance of such duties on a
fulltime basis.
(d) "Fair Market Value" per share as of a particular date
shall mean the value determined by the Committee in its discretion; provided,
however, that in the event that there is a public market for the Common Stock,
the fair market value is, if available, (i) the closing price of the Common
Stock as of the date of grant as reported (in descending order of priority) on
(A) a national securities exchange listing the Common Stock, (B) the NASDAQ
Stock Market, (C) a national automated quotation system with daily trading
volume in the Common Stock in excess of 10,000 shares, or (D) a regional
securities exchange listing the Common Stock, or (ii) the average of the closing
bid and asked prices of the Common Stock for the previous five trading days.
(e) "Option" or "Options" shall mean a grant to an Optionee of
an option or options to purchase shares of Common Stock. Options granted by the
Committee pursuant to the Plan shall constitute either Nonqualified Stock
Options or Incentive Stock Options, as determined by the Committee.
(f) "Parent Corporation" shall mean any corporation (other
than the Company) in an unbroken chain of corporations ending with the employer
corporation if, at the time of granting an Option, each of the corporations
other than the employer corporation owns stock possessing fifty percent (50%) or
more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
(g) "Subsidiary Corporation" shall mean any corporation (other
than the Company) in an unbroken chain of corporations beginning with the
employer corporation if, at the time of granting an Option, each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(h) "Ten Percent Stockholder" shall mean an Optionee who, at
the time an Incentive Stock Option is granted, owns stock possessing more than
ten percent (10%) of the total combined voting power of all classes of stock of
the Company or of its Parent or Subsidiary Corporations.
1
3. Administration.
(a) The Plan shall be administered by a committee (the
"Committee") established by the Board, the composition of which shall at all
times consist of two (2) or more individuals who are each members of the Board.
If no Committee is appointed by the Board, the functions of the Committee shall
be carried out by the Board, provided, however, that if at any time the
Corporation has outstanding a class of equity securities required to be
registered under Section 12 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), the Corporation shall use reasonable efforts to grant,
designate or amend any Options hereunder through a committee consisting solely
of two or more persons, each of whom shall qualify as (i) a "Non-Employee
Director", as that term is defined in subparagraph (b)(3)(i) of Rule 16b-3
("Rule 16b-3") promulgated under the 1934 Act, and (ii) an "outside director",
within the meaning of Section 162(m) of the Code.
(b) The Committee shall choose one of its members as Chairman
and shall hold meetings at such times and places as it shall deem advisable. A
majority of the members of the Committee shall constitute a quorum and any
action may be taken by a majority of those present and voting at any meeting.
Any action may also be taken without the necessity of a meeting by a written
instrument signed by all members of the Committee. The decision of the Committee
as to all questions of interpretation and application of the Plan shall be
final, binding and conclusive on all persons. The Committee shall have the
authority to adopt, amend and rescind such rules and regulations as, in its
opinion, may be advisable in the administration of the Plan. The Committee may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in any Option Agreement (as defined in Section 8) in the manner and to
the extent it shall deem expedient to carry the Plan into effect and shall be
the sole and final judge of such expediency. No Committee member shall be liable
for any action or determination made in good faith.
(c) The Committee shall have the authority in its discretion,
subject to and not inconsistent with the express provisions of the Plan, to
administer the Plan and to exercise all the powers and authorities either
specifically granted to it under the Plan or necessary or advisable in the
administration of the Plan, including, without limitation, the authority to
grant Options; to determine the purchase price of the shares of Common Stock
covered by each Option (the "Option Price"); to determine the persons to whom,
and the time or times at which awards shall be granted, (such persons are
referred to herein as "Optionees"); to determine the number of shares to be
covered by each award; to interpret the Plan; to prescribe, amend and rescind
rules and regulations relating to the Plan; to determine the terms and
provisions of the agreements (which need not be identical) entered into in
connection with awards granted under the Plan; to cancel or suspend awards, as
necessary; and to make all other determinations deemed necessary or advisable
for the administration of the Plan. The Committee may delegate to one or more of
its members or to one or more agents such administrative duties as it may deem
advisable, provided, however, that if at any time the Corporation has
outstanding a class of equity securities required to be registered under Section
12 of the 1934 Act, the Committee may not delegate any of its responsibilities
hereunder to any person who is not both a "Non-Employee Director", as that term
is defined in subparagraph (b)(3)(i) of Rule 16b-3, and an "outside director",
within the meaning of Section 162(m) of the Code. The Committee or any person to
whom it has delegated duties as aforesaid may employ one or more persons to
render advice with respect to any responsibility the Committee or such person
may have under the Plan. All decisions, determinations and interpretations of
the Committee shall be final and binding on all Optionees.
(d) The Board shall fill all vacancies, however caused.
(e) No member of the Board or Committee shall be liable for
any action taken or determination made in good faith with respect to the Plan or
any award granted hereunder.
4. Eligibility.
(a) Awards may be granted to directors, officers, employees,
independent contractors, advisers and consultants of the Company. In determining
the persons to whom awards shall be granted and the number of shares to be
covered by each award, the Committee shall take into account the duties of the
respective persons, their present and potential contributions to the success of
the Company and such other factors as the Committee shall deem relevant in
connection with accomplishing the purposes of the Plan.
(b) Options designated as ISOs may be granted only to officers
and other employees of the Company or any "subsidiary corporation" as defined in
Section 424 of the Code. Non-Qualified Stock Options may be granted to any
officer, employee, director, independent contractor, adviser, or consultant of
the Company or of any Subsidiary Corporation. Non-Qualified Stock Options may be
granted to an individual in connection
2
with the hiring or engagement of the individual prior to the date that the
individual first performs services for the Company or any Subsidiary
Corporation.
5. Common Stock Subject to the Plan.
(a) The maximum number of shares of Common Stock reserved for
the grant of Options shall be 1,500,000. Such shares may, in whole or in part,
be authorized but unissued shares or shares that shall have been or may be
reacquired by the Company.
(b) If any outstanding award under the Plan should, for any
reason expire, be canceled or be terminated, without having been exercised in
full, the shares of Common Stock allocable to the unexercised, canceled or
terminated portion of such award shall (unless the Plan shall have been
terminated) become available for subsequent grants of awards under the Plan.
(c) Stock issuable upon exercise of an option granted under
the Plan may be subject to such restrictions on transfer, repurchase rights or
other restrictions as shall be determined by the Committee.
6. Incentive Stock Options.
Options granted pursuant to this Section 6 are intended to
constitute Incentive Stock Options and shall be subject to the following special
terms and conditions, in addition to the general terms and conditions specified
in Section 8 hereof.
(a) Value of Shares. The aggregate Fair Market Value
(determined as of the date that Incentive Stock Options are granted) of the
shares of Common Stock with respect to which Options granted under this Plan and
all other option plans of the Company and any Parent or Subsidiary Corporation
that become exercisable for the first time by an Optionee during any calendar
year shall not exceed $100,000.
(b) Ten Percent Stockholders. In the case of an Incentive
Stock Option granted to a Ten Percent Stockholder, (i) the Option Price shall
not be less than one hundred ten percent (110%) of the Fair Market Value of the
shares of Common Stock on the date of grant of such Incentive Stock Option, and
(ii) the exercise period shall not exceed five (5) years from the date of grant
of such Incentive Stock Option.
7. Nonqualified Stock Options.
Options granted pursuant to this Section 7 are intended to
constitute Non-Qualified Stock Options and shall be subject only to the general
terms and conditions specified in Section 8 hereof.
8. Terms and Conditions of Options.
Each Option granted pursuant to the Plan shall be evidenced by
a written agreement between the Company and the Optionee in such form as the
Committee shall from time to time approve (the "Option Agreement"), which Option
Agreement shall be subject to and set forth the following terms and conditions:
(a) Number of Shares. Each Option Agreement shall state the
number of shares of Common Stock to which the option relates.
(b) Type of Option. Each Option Agreement shall specifically
state whether the Option constitutes a Non-Qualified Stock Option or an
Incentive Stock Option.
(c) Option Price. The option price or prices of shares of the
Company's Common Stock for options designated as Non-Qualified Stock Options
shall be as determined by the Committee, but in no event shall the option price
be less than the minimum legal consideration required therefor under the laws of
the State of New Jersey or the laws of any jurisdiction in which the Company or
its successors in interest may be organized. The option price or prices of
shares of the Company's Common Stock for ISOs shall be the Fair Market Value of
such Common Stock at the time the option is granted as determined by the
Committee.
(d) Method and Time of Payment. Each Option Agreement shall
require that the Option Price be paid in full, at the time of exercise of an
Option, in cash, by certified or cashier's check.
3
(e) Term and Exercisability of Options. Except as otherwise
provided in this Section 8 or Section 9 hereof or unless otherwise determined by
the Committee and set forth in the Option Agreement, at the discretion of the
Committee, options may become exercisable in such number of cumulative
installments as the Committee may establish, provided, however, no option may be
exercisable until at least six months and one day from the date of grant
provided, however, that, the Committee shall have the authority to accelerate
the exercisability of any outstanding Option at such time and under such
circumstances as it, in its sole discretion, deems appropriate. Except as
specifically provided in Sections 8(f) and 8(g) hereof, all Options shall expire
ten (10) years from the date of grant of such Option (five (5) years in the case
of an Incentive Stock Option granted to a Ten Percent Stockholder) or on such
earlier date as may be prescribed by the Committee and set forth in the Option
Agreement. An Option may be exercised, as to any or all full shares of Common
Stock as to which the Option has become exercisable, by giving written notice of
such exercise to the Committee or its designated agent; provided, however, that
an Option may not be exercised at any one time as to fewer than 100 shares (or
such number of shares as to which the Option is then exercisable if such number
of shares is less than 100).
(f) Termination of Employment. Except as provided in this
Section 8(f) and in Sections 8(e) and (g) hereof, each Option granted hereunder
shall expire, to the extent not theretofore exercised, sixty (60) days after the
date the Optionee ceases to be employed by the Company or any of its Parent or
Subsidiary Corporations (or on such other date as may be prescribed by the
Committee and set forth in any Option Agreement).
(g) Death or Disability of Optionee. If an Optionee shall die
while employed by the Company or a Parent or Subsidiary Corporation (or within
such longer period as the Committee may have provided pursuant to Section 8(f)
hereof), or if the Optionee's employment shall terminate by reason of
Disability, all Options theretofore granted to such Optionee (to the extent
otherwise exercisable) may, unless earlier terminated in accordance with their
terms, be exercised by the Optionee or by the Optionee's estate or by a person
who acquired the right to exercise such Options by bequest or inheritance or
otherwise by reason of the death or Disability of the Optionee, at any time
within six (6) months after the date of death or Disability of the Optionee;
provided, however, that the Committee may, in any Option Agreement, extend such
period of exercisability. In the event that an Option granted hereunder shall be
exercised by the legal representatives of a deceased or former Optionee, written
notice of such exercise shall be accompanied by a certified copy of letters
testamentary or equivalent proof of the right of such legal representative to
exercise such option.
(h) Other Provisions. The Option Agreements evidencing Options
under the Plan shall contain such other terms and conditions, not inconsistent
with the Plan, as the Committee may determine.
9. Effect of Certain Changes.
(a) If there is any change in the shares of Common Stock
through the declaration of extraordinary dividends, stock dividends,
re-capitalization, stock splits, or combinations or exchanges of such shares, or
in the event of a sale of all or substantially all of the assets of the Company
(an "Asset Sale"), or the merger or consolidation of the Company with or into
another corporation (a "Merger"), or in the event of other similar transactions,
the Committee shall promptly make an appropriate adjustment to the number and
class of shares of Common Stock available for awards, to the number of shares
covered by outstanding awards after the effective date of such transaction, and,
if applicable, to the price thereof; provided, however, that any fractional
shares resulting from such adjustment shall be eliminated.
(b) In the event of the dissolution or liquidation of the
Company, in the event of any corporate separation or division, including, but
not limited to, split-up, split-off or spin-off or in the event of other similar
transactions, the Committee may provide that:
(i) the Optionee of any Option shall have the right to
exercise such Option; and/or
(ii) each Option granted under the Plan shall terminate
as of a date to be fixed by the Committee, and that not be less than thirty (30)
days notice of the date so fixed shall be given to each Optionee, who shall have
the right, during the period of thirty (30) days preceding such termination, to
exercise (to the extent exercisable) with respect to such Option all or any part
of the shares of Common Stock covered thereby.
(c) In the event of an Asset Sale or a Merger, any award then
outstanding may be assumed or an equivalent award may be substituted by such
successor corporation or a parent or subsidiary of such successor corporation.
If such successor corporation does not agree to assume the award or to
substitute an equivalent award, the Board may, in lieu of such assumption or
substitution, provide for the realization of such outstanding award in the
manner set forth in subsections 9(b)(i) or 9(b)(ii) above.
4
(d) In the event of a change in the Common Stock of the
Company as presently constituted that is limited to a change of all of its
authorized shares of Common Stock into the same number of shares with a
different par value or without par value, the shares resulting from any such
change shall be deemed to be the Common Stock within the meaning of the Plan.
(e) Except as hereinbefore expressly provided in this Section
9, the Optionee of an award hereunder shall have no rights by reason of any
subdivision or consolidation of shares of stock of any class or the payment of
any stock dividend or any other increase or decrease in the number of shares of
stock of any class or by reason of any dissolution, liquidation, Merger or
spin-off of assets or stock of another company; and any issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall not affect, and no adjustment by reason thereof shall be
made with respect to, the number or price of shares of Common Stock subject to
an award. The grant of an award pursuant to the Plan shall not affect in any way
the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structures or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or part of its
business or assets or engage in any similar transactions.
10. Period During Which Options May Be Granted.
Awards may be granted pursuant to the Plan from time to time
within a period of ten (10) years from the date the Plan is adopted by the
Board, or the date the Plan is approved by the stockholders of the Company,
whichever is earlier.
11. Nontransferability of Awards.
The right of any Optionee to exercise any option granted to
him or her shall not be assignable or transferable by such Optionee otherwise
than by will or the laws of descent and distribution, or pursuant to a domestic
relations order, and any such option shall be exercisable during the lifetime of
such Optionee only by him; provided, however, that the Committee may permit the
further transferability on a general or specific basis and may impose conditions
and limitations on any permitted transferee. Any option granted under the Plan
shall be null and void and without effect upon the bankruptcy of the Optionee to
whom the option is granted, or upon any attempted assignment or transfer, except
as herein provided, including without limitation any purported assignment,
whether voluntary or by operation of law, pledge, hypothecation or other
disposition, attachment, divorce, except as provided above with respect to
Non-Qualified Stock Options, trustee process or similar process, whether legal
or equitable, upon such option.
12. Beneficiary.
An Optionee may file with the Committee a written designation
of a beneficiary on such form as may be prescribed by the Committee and may,
from time to time, amend or revoke such designation. If no designated
beneficiary survives the Optionee, the executor or administrator of the
Optionee's estate shall be deemed to be the Optionee's beneficiary.
13. Agreement by Optionee Regarding Withholding Taxes.
If the Committee shall so require, as a condition of exercise
of an Option granted hereunder, each Optionee shall agree that no later than the
date of exercise, the Optionee will pay to the Company or make arrangements
satisfactory to the Committee regarding payment of any federal, state or local
taxes of any kind required by law to be withheld upon the exercise of an Option.
To the extent provided in the applicable Option Agreement, such payment may be
made by the Optionee with shares of Common Stock (whether previously owned by,
or issuable upon the exercise of an Option awarded to, such Optionee) having a
Fair Market Value equal to the amount of such taxes. Alternatively, the
Committee may provide that an Optionee may elect, to the extent permitted or
required by law, to have the Company deduct federal, state and local taxes of
any kind required by law to be withheld upon the exercise of an Option from any
payment of any kind due to the Optionee.
14. Rights as a Stockholder.
An Optionee or a transferee of an award shall have no rights
as a stockholder with respect to any shares of Common Stock covered by the
Option until the date of the issuance of a stock certificate to him for such
shares. No adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other
5
property) or distributions of other rights for which the record date is prior to
the date such stock certificate is issued, except as provided in Section 9
hereof.
15. No Rights to Employment.
Nothing contained in the Plan or in any option granted under
the Plan shall confer upon any option holder any right with respect to the
continuation of his employment by the Company (or any subsidiary) or interfere
in any way with the right of the Company (or any subsidiary), subject to the
terms of any separate employment agreement to the contrary, at any time to
terminate such employment or to increase or decrease the compensation of the
option holder from the rate in existence at the time of the grant of an option.
Whether an authorized leave of absence, or absence in military or government
service, shall constitute termination of employment shall be determined by the
Committee at the time.
16. Approval of Stockholders.
The Plan, and any grants of Options thereunder, shall be
subject to approval by the holder(s) of a majority of the issued and outstanding
shares of the Company's capital stock which are entitled to vote on the subject
matter thereof and are present in person or represented by proxy at a
duly-called meeting of the stockholders of the Company which approval must occur
within one year after the date that the Plan is adopted by the Board. In the
event that the stockholders of the Company do not approve the Plan at a meeting
of the stockholders at which such issue is considered and voted upon, then, upon
such event, this Plan and all rights hereunder or under any Option Agreement
entered into in connection herewith shall immediately terminate and no Optionee
(or any permitted transferee thereof) shall have any remaining rights under the
Plan.
17. Amendment and Termination of the Plan.
The Board at any time and from time to time may suspend,
terminate, modify or amend the Plan; provided, however, that any amendment that
would materially increase the aggregate number of shares of Common Stock as to
which awards may be granted under the Plan or materially increase the benefits
accruing to Optionees under the Plan or materially modify the requirements as to
eligibility for participation in the Plan shall be subject to the approval of
the holders of a majority of the Common Stock issued and outstanding, except
that any such increase or modification that may result from adjustments
authorized by Section 9 hereof shall not require such approval. Except as
provided in Section 9 hereof, no suspension, termination, modification or
amendment of the Plan may adversely affect any award previously granted, without
the express written consent of the Optionee.
18. Compliance with Section 16(b).
In the case of Optionees who are or may be subject to Section
16 of the 1934 Act, it is the intent of the Company that the Plan and any award
granted hereunder satisfy and be interpreted in a manner that satisfies the
applicable requirements of Rule 16b-3 so that such persons will be entitled to
the benefits of Rule 16b-3 or other exemptive rules under Section 16 of the 1934
Act and will not be subjected to liability thereunder. If any provision of the
Plan or any award would otherwise conflict with the intent expressed herein,
that provision, to the extent possible, shall be interpreted and deemed amended
so as to avoid such conflict. To the extent of any remaining irreconcilable
conflict with such intent, such provision shall be deemed void as applicable to
Optionees who are or may be subject to Section 16 of the 1934 Act.
19. Restrictions on Issue of Shares.
(a) Notwithstanding the provisions of Section 8, the Company
may delay the issuance of shares of Common Stock covered by the exercise of an
option and the delivery of a certificate for such shares of Common Stock until
the delivery or distribution of any shares of Common Stock issued under this
Plan complies with all applicable laws (including without limitation, the
Securities Act of 1933, as amended), and with the applicable rules of any stock
exchange upon which the shares of Common Stock of the Company are listed or
traded.
(b) It is intended that all exercises of options shall be
effective, and the Company shall use its best efforts to bring about compliance
with all applicable legal and regulatory requirements within a reasonable time,
except that the Company shall be under no obligation to qualify shares of Common
Stock or to cause a registration statement or a post-effective amendment to any
registration statement to be prepared for the purpose of covering the issue of
shares of Common Stock in respect of which any option may be exercised, except
as otherwise agreed to by the Company in writing.
6
20. Loans.
The Company may make loans to Optionees to permit them to
exercise options. If loans are made, the requirements of all applicable Federal
and state laws and regulations regarding such loans must be met.
21. Modification of Outstanding Options.
The Committee may authorize the amendment of any outstanding
option with the consent of the Optionee when and subject to such conditions as
are deemed to be in the best interests of the Company and in accordance with the
purposes of this Plan.
22. Reservation of Stock.
The Company shall at all times during the term of the Plan
reserve and keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of the Plan and shall pay all fees and
expenses necessarily incurred by the Company in connection therewith.
23. Limitation of Rights in the Option Shares.
Any communication or notice required or permitted to be given
under the Plan shall be in writing, and mailed by registered or certified mail
or delivered by hand, if to the Company, to its principal place of business,
attention: President, and, if to an Optionee, to the address as appearing on the
records of the Company.
24. Governing Law.
The Plan and all determinations made and actions taken
pursuant hereto shall be governed by the laws of the State of New Jersey without
giving effect to the conflict of laws principles thereof.
25. Effective Date and Duration of the Plan.
This Plan shall, subject to Section 16 hereof, be effective as
of June 6, 2000, the date of its adoption by the Board of Directors, and
shall terminate on the later of (a) the tenth anniversary of the date so
determined or (b) the last expiration of awards granted hereunder.
EXHIBIT 5
MORRISON COHEN SINGER & WEINSTEIN, LLP
750 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022
(212) 735-8600
FACSIMILE: (212) 735-8705
April 26, 2001
Wireless Telecom Group, Inc.
E. 64 Midland Avenue
Paramus, New Jersey 07652
Re: Registration Statement on Form S-8
Gentlemen:
You have requested our opinion with respect to the offer and
sale by you, Wireless Telecom Group, Inc., a New Jersey corporation (the
"Company"), pursuant to a Registration Statement (the "Registration Statement")
on Form S-8 under the Securities Act of 1933, as amended (the "Act"), of up to
1,500,000 shares (the "Shares") of common stock, par value $.01 per share, of
the Company (the "Common Stock"), issuable upon exercise of stock options (the
"Options") available for grant under the 2000 Stock Option Plan.
In our capacity as counsel to the Company in the connection
referred to above, we have examined originals, or copies certified or otherwise
identified to our satisfaction, of such documents and corporate and public
records as we deem necessary as a basis for the opinion hereinafter expressed.
With respect to such examination, we have assumed the genuineness of all
signatures appearing on all documents presented to us as originals, and the
conformity to the originals of all documents presented to us as conformed or
reproduced copies. Where factual matters relevant to such opinion were not
independently established, we have relied upon certificates of executive
officers and responsible employees and agents of the Company.
Based upon the foregoing, it is our opinion that the Shares
have been duly and validly authorized and when sold, paid for and issued as
contemplated by the Registration Statement and the Options will be duly and
validly issued and fully paid and nonassessable.
We hereby consent to the use of this opinion as Exhibit 5 to
the Registration Statement. In giving this consent, we do not thereby concede
that we come within the categories of persons whose consent is required by the
Act or the General Rules and Regulations promulgated thereunder.
Very truly yours,
/s/ MORRISON COHEN SINGER & WEINSTEIN, LLP
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MORRISON COHEN SINGER & WEINSTEIN, LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 2, 2001 which
appears on page F-2 of Form 10-K for Wireless Telecom Group, Inc. for the year
ended December 31, 2000.
/s/ LAZAR, LEVINE & FELIX LLP
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LAZAR, LEVINE & FELIX LLP
New York, New York
March 30, 2001