As
filed with the Securities and Exchange Commission on March 30, 2009
Registration
No. 333-145759
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1 ON FORM S-3
TO
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
POLARIS
ACQUISITION CORP.
(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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26-0443717
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(State
or Other Jurisdiction of Incorporation or Organization)
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(I.R.S.
Employer Identification Number)
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2200
Fletcher Avenue, 4th
Floor
Fort
Lee, New Jersey 07024
(201)
242-3500
(Address,
Including Zip Code, and Telephone Number,
Including
Area Code, of Registrant’s Principal Executive Offices)
Marc
V. Byron
Chairman
of the Board and Chief Executive Officer
Polaris
Acquisition Corp.
2200
Fletcher Avenue, 4th
Floor
Fort
Lee, New Jersey 07024
(201)
242-3500
(Name,
Address, Including Zip Code, and Telephone Number,
Including
Area Code, of Agent for Service)
Copy
To:
Andrew
J. Nussbaum
Ante
Vucic
Wachtell,
Lipton, Rosen & Katz
51
West 52nd
Street
New
York, New York 10019
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. ¨
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,
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. ¨
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. ¨
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 Securities and Exchange Commission pursuant to Rule 462(e) under the
Securities Act, check the following box. ¨
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. ¨
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Securities and Exchange Act of 1934, as
amended.
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Large
Accelerated Filer ¨
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Accelerated
Filer ¨
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Non-accelerated
filer x
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Smaller
reporting company ¨
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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 Securities and Exchange Commission, acting pursuant to such
Section 8(a), may determine.
Explanatory
Note
This
Post-Effective Amendment No. 1 on Form S-3 relates solely to the shares of
common stock issuable upon exercise of warrants that were previously issued to
public investors in connection with the registrant’s initial public offering,
initially registered by the registrant on the Registration Statement on Form S-1
(File No. 333-145759) declared effective by the Securities and Exchange
Commission on or about January 15, 2008. This Post-Effective Amendment
No. 1 on Form S-3 is being filed to convert such Registration Statement on
Form S-1 into a Registration Statement on Form S-3. All filing fees payable in
connection with the registration of these securities were previously paid in
connection with the filing of the original registration statement for the
initial public offering.
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 or until this registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said 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 March 30, 2009
PROSPECTUS
Polaris
Acquisition Corp.
15,000,000
Shares of Common Stock
This
prospectus relates to 15,000,000 shares of our common stock, par value $0.0001
per share, which are issuable upon the exercise of warrants originally issued in
our initial public offering pursuant to a prospectus dated January 15,
2008. In order to obtain the shares, the holders of the warrants issued in our
initial public offering must pay an exercise price of $7.00 per share for the
15,000,000 shares of common stock underlying these warrants. We will
receive proceeds from any exercise of the warrants. The warrants expire on
January 10, 2012 at 5:00 p.m., New York City time, or upon earlier redemption by
Polaris:
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in
whole and not in part;
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at
a price of $0.01 per warrant at any time after the warrants become
exercisable;
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upon
not less than 30 days’ prior written notice of redemption;
and
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if,
and only if, the reported last sale price of the common stock equals or
exceeds $14.25 per share, for any 20 trading days within a 30 trading day
period ending three business days before we send the notice of
redemption.
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Our
units, shares of common stock and warrants are currently traded on the NYSE AMEX
under the symbols “TKP.U,” “TKP” and “TKP.WS,” respectively. As of March 27,
2009, the closing sale price of our units was $9.20, the closing sale price of
our common stock was $9.08 and the closing sale price of our warrants was
$0.20.
We are
located at 2200 Fletcher Avenue, 4th Floor, Fort Lee, New Jersey 07024. Our
telephone number is (201) 242-3500.
Investing
in our securities involves a high degree of risk. See "Risk Factors" on page [__] for a discussion of
information that should be considered before buying shares of our common stock
and warrants.
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 March , 2009
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with different
information. We are not making an offer of these securities in any jurisdiction
where the offer is not permitted.
TABLE
OF CONTENTS
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Section
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Page
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Explanatory
Note
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Introduction
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Prospectus
Summary
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5
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Polaris
Acquisition Corp.
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5
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Acquisition
of HUGHES Telematics, Inc.
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5
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Business
of HUGHES Telematics, Inc.
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6
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Definitive
Proxy Statement and Proxy Supplement
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6
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The
Offering
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7
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Forward-Looking
Statements
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8
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Risk
Factors
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10
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Use
of Proceeds
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10
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Determination
of Offering Price
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10
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Plan
of Distribution
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10
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Experts
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10
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Disclosure
of Commission Position on Indemnification for Securities Act
Liabilities
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11
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Incorporation
of Certain Information by Reference
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11
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Where
You Can Find More Information
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11
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Signatures
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17
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Exhibit
Index
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18
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Consents
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PROSPECTUS
SUMMARY
This
summary highlights certain information appearing elsewhere in this prospectus.
For a more complete understanding of this offering, you should read the entire
prospectus carefully, including the risk factors and the financial statements
and other information incorporated by reference from our other filings with the
Securities and Exchange Commission (“SEC”). Unless otherwise stated in this
prospectus, references to "Polaris," “registrant,” “we,” “us” or “the Company”
refer to Polaris Acquisition Corp. An investment in our shares of common stock
involves risks. Therefore carefully consider the information provided under “Summary Information — Risk
Factors.”
Polaris
We were
incorporated in Delaware on June 18, 2007 for the purpose of effecting a merger,
stock exchange, asset acquisition, stock purchase, reorganization or other
similar business combination with an operating business.
The
registration statement for the Company's initial public offering was declared
effective on January 14, 2008. The Company consummated the initial public
offering on January 17, 2008, and received gross proceeds of approximately $154
million including $4.5 million of proceeds from a private placement sale of
4,500,000 sponsors’ warrants to certain affiliates of the Company effected
concurrently with the initial public offering. The net proceeds from these
transactions were approximately $143.4 million.
The Company's management has broad
discretion with respect to the specific application of the net proceeds of this
offering.
Acquisition
of HUGHES Telematics
On June
13, 2008, we entered into an Agreement and Plan of Merger pursuant to which we
agreed to merge with HUGHES Telematics, Inc. The Company and HUGHES
Telematics amended and restated that agreement on November 10, 2008 and again on
March 12, 2009.
On
February 12, 2009, we filed and mailed a definitive proxy statement with the SEC
with respect to this proposed merger with HUGHES Telematics, and on March 20,
2009 we filed a supplemental proxy statement describing the amended and restated
merger agreement of March 12, 2009 as well as certain other developments
relevant to our stockholders voting on the transaction. We have summarized the
terms of the merger agreement and related transactions below. Investors are
urged to review the definitive proxy statement, the proxy supplement and any
other filings relating thereto in their entirety. A special meeting
of stockholders to vote on the merger and certain related transactions is
currently scheduled for March 30, 2009 at 3:00 p.m. at our offices.
The
parties to the merger agreement are Polaris, HUGHES Telematics and
Communications Investors LLC, an affiliate of Apollo Management, L.P. (as
escrow representative). The merger agreement specifies that, at the closing of
the merger, all the outstanding shares of HUGHES Telematics common stock shall
be converted into the right to receive, in the aggregate, approximately
20,000,000 shares of Polaris common stock. In addition, holders of HUGHES
Telematics common stock shall be entitled to receive an aggregate of
approximately 59,000,000 “earn-out” shares of Polaris common stock, in three
tranches, which will be issued into escrow at the closing of the merger and
released to HUGHES Telematics shareholders upon the achievement of certain share
price targets over the five-year period following closing. Outstanding options
exercisable for shares of HUGHES Telematics common stock will be exchanged in
the merger for options exercisable for shares of Polaris common stock. In
connection with the consummation of the merger agreement the company will amend
and restate its certificate of incorporation to, among other things, change its
name to HUGHES Telematics, Inc., to increase the number of authorized shares of
both common and preferred stock, and to amend certain other ministerial
provisions of the certificate of incorporation (including removal of certain
provisions related to the Company’s existence as a special purpose acquisition
company).
The
Merger Agreement also requires that the founders of Polaris deposit 1,250,000
shares of their Polaris common stock into escrow, to be released upon the
achievement of the first stock price target between the first and fifth
anniversaries of closing. The number of shares of Polaris common
stock received by HUGHES Telematics shareholders at the closing will be subject
to possible adjustment for a shortfall in the net working capital of Polaris
below an agreed upon threshold amount.
The
obligations of HUGHES Telematics and Polaris to complete the merger are subject
to the satisfaction or waiver by the other party at or prior to the closing date
of various customary conditions, including (i) the receipt of all required
regulatory approvals and consents, (ii) the approval of the merger by a majority
of and conversion by Polaris’ stockholders who hold fewer than 30% of the shares
that were issued in our initial public offering, (iii) subject to certain
exceptions and materiality thresholds, the accuracy of the representations and
warranties of the other party and (iv) compliance of the other party with its
covenants, subject to specified materiality thresholds.
Business
of HUGHES Telematics
HUGHES
Telematics is an automotive telematics services company that currently provides
and is developing a suite of real-time automotive services and applications.
These services and applications will be enabled through a hardware component
that is factory-installed in new vehicles through multi-year contractual
arrangements with automakers. In other instances, these services will be
available through software provided by HUGHES Telematics that interfaces with
compatible third-party hardware already installed by HUGHES Telematics’
automaker clients in certain vehicle models. HUGHES Telematics has contracts to
be the telematics service provider in the United States to Chrysler and
Mercedes-Benz USA starting in the second half of 2009, and continues to market
its telematics service to other automakers. Through Networkfleet, its wholly
owned subsidiary, HUGHES Telematics currently offers remote vehicle monitoring
and other data services through after-market hardware that is purchased
separately and installed on existing fleet vehicles.
HUGHES
Telematics’ principal executive office is located at 41 Perimeter Center East,
Suite 400, Atlanta, Georgia 30346, and its telephone number is (770)
391-6400.
Definitive
Proxy Statement and Proxy Supplement
The
definitive proxy statement filed on February 12, 2009 and the proxy supplement
thereto, filed March 20, 2009
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discuss
the proposed merger with HUGHES
Telematics;
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provide
relevant historical financial information for each of Polaris and HUGHES
Telematics and pro forma financial information for the combined company;
and
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provide
a detailed description of HUGHES Telematics’ business, operations and
financial results.
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The proxy
filings and all exhibits thereto are incorporated herein by reference and we
urge any potential investor in our securities to read them.
Unless
the context otherwise indicates, the information in this prospectus assumes the
proposed merger will be approved by the stockholders of Polaris and the
acquisition will be consummated. If the merger is not approved we will not seek
effectiveness of the registration statement of which this prospectus forms a
part.
THE
OFFERING
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Securities
Offered:
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15,000,000
shares of common stock underlying warrants with an exercise price of $7.00
per share. The warrants expire on January 10,
2012.
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Outstanding shares
before the merger
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Outstanding shares after
the merger assuming no
conversion or repurchases
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Outstanding shares after the
merger assuming the maxi-
mum anticipated conversions
and repurchases
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Number
of shares of common stock outstanding before this
offering:
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18,750,000 |
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95,852,149 |
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84,084,650 |
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Number
of shares of common stock to be outstanding after this
offering:
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33,750,000 |
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110,852,149 |
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99,084,650 |
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NYSE
AMEX symbol for our units1:
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TKP.U
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NYSE
AMEX symbol for our common stock:
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TKP
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NYSE
AMEX symbol for our warrants:
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TKP.WS
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Offering
proceeds:
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Assuming
the exercise of all the warrants, we would receive gross proceeds of up to
$105 million. We intend to use the proceeds to repay indebtedness, for
working capital, operating expenses and other general corporate
purposes.
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* These
figures reflect the number included in the actual number of shares outstanding
as of March 27, 2009, which was 18,750,000, and also 77,102,149 shares of our
common stock issuable in the merger with HUGHES Telematics:
**
We currently expect that we will repurchase approximately 7,267,500 shares and
holders of approximately 4,499,999 shares will exercise their conversion
election.
FORWARD-LOOKING
STATEMENTS
We
believe that some of the information in this prospectus and the Proxy Filings
and other documents and filings incorporated by reference hereby constitutes
forward-looking statements within the definition of the Private Securities
Litigation Reform Act of 1995. You can identify these statements by
forward-looking words such as “may,” “expect,” “anticipate,” “contemplate,”
“believe,” “estimate,” “intends” and “continue” or similar words. You should
read statements that contain these words carefully because they discuss future
expectations, contain projections of future results of operations or financial
condition; or state other “forward-looking” information.:
We
believe it is important to communicate our expectations to our stockholders.
However, there may be events in the future that we are not able to predict
accurately or over which we have no control. The risk factors and cautionary
language contained in the Proxy Filings and incorporated herein by reference
provide examples of risks, uncertainties and events that may cause actual
results to differ materially from the expectations described by us or HUGHES
Telematics in such forward-looking statements, including among other
things:
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the
change in control of Polaris once the merger is
consummated;
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Polaris’
expectations regarding consummation and timing of the merger and related
transactions, including the satisfaction of closing conditions to the
merger;
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Polaris’
and HUGHES Telematics’ expectations regarding HUGHES Telematics’ growth
potential;
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the
delisting of Polaris’ securities from the NYSE Amex or an inability to
have Polaris’ securities listed on either the NASDAQ Global Market or the
NASDAQ Capital Market or another exchange following the consummation of
the merger;
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Polaris’
and HUGHES Telematics’ expectations and intentions regarding the use of
the proceeds in Polaris’ trust
account;
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the
financial performance of HUGHES
Telematics;
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slower
than expected development of the telematics industry or any event that
causes telematics to be less attractive to
consumers;
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the
loss of strategic relationships with Chrysler or
Mercedes-Benz;
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the
uncertainties regarding the business soundness of our main customers and
the effects of any possible government intervention in the automotive
industry;
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an
inability to enter into strategic relationships with additional
automakers, thereby limiting HUGHES Telematics’ growth
potential;
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the
introduction and proliferation of competitive
products;
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an
inability to achieve sustained
profitability;
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difficulties
with delays or quality control with our primary
vendors;
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failure
to implement HUGHES Telematics’ short- or long-term growth
strategies;
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the
cost of retaining and recruiting HUGHES Telematics’ key personnel or the
loss of such key personnel;
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risks
associated with the expansion of HUGHES Telematics’ business in size and
geography;
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geopolitical
events and regulatory changes;
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changing
interpretations of generally accepted accounting principles
(“GAAP”);
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general
economic conditions;
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a
downturn in the automotive
industry;
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litigation
and regulatory enforcement risks, including the diversion of management
time and attention and the additional costs and demands on HUGHES
Telematics’
resources;
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costs
related to the proposed merger;
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diminished
liquidity resulting from distributing funds to converting stockholders and
repurchases by HUGHES Telematics and
Polaris;
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failure
to obtain the required approvals of Polaris’
stockholders; and
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risks
that the closing of the transaction is substantially delayed or that the
transaction does not close.
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You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date of this prospectus.
All
forward-looking statements included herein attributable to any of Polaris,
HUGHES Telematics or any person acting on either party’s behalf are expressly
qualified in their entirety by the cautionary statements contained or referred
to in this section. Except to the extent required by applicable laws and
regulations, Polaris and HUGHES Telematics undertake no obligations to update
these forward-looking statements to reflect events or circumstances after the
date of this prospectus or to reflect the occurrence of unanticipated
events.
You
should be aware that the occurrence of the events described in the “Risk
Factors” sections of the Proxy Filings could have a material adverse effect on
Polaris and HUGHES Telematics.
RISK
FACTORS
A
discussion of the risk factors relating to an investment in us and risks related
to the business of HUGHES Telematics are included in the definitive proxy
statement filed and mailed on February 12, 2009, which is incorporated herein by
reference the proxy supplement filed with the SEC and mailed on March 20, 2009
which is also incorporated herein by reference.
You
should carefully consider all of the material risks described in the section of
the Proxy Filings entitled “Risk Factors” together with all of the other
information included or incorporated by reference in this prospectus before
making a decision to exercise your warrants.
USE
OF PROCEEDS
We will
receive gross proceeds of up to $105 million upon the exercise of the warrants.
We will be required to use 25% of the net cash proceeds for the repayment of
senior secured term indebtedness under the HUGHES Telematics credit facility
that we assume in the Merger. We will use the remainder of the
proceeds for working capital, operating expenses and other general corporate
purposes. There is no assurance that the holders of the warrants will
elect to exercise any or all of the warrants.
As of
March 30, 2009, HUGHES Telematics had outstanding senior secured term
indebtedness under the credit facility with an aggregate principal balance of
$60.0 million. The proceeds from the incurrence of indebtedness under the credit
facility were used by HUGHES Telematics for general corporate purposes and to
pay fees and expenses related to the credit facility transaction. The
senior secured term indebtedness bears interest, at the election of HUGHES
Telematics, at (i) the Prime Lending Rate plus 10.00% or (ii) for Eurocurrency
borrowings, 11.00% plus the greater of LIBOR or 3.00%. In accordance with an
agreement between HUGHES Telematics and one of the senior secured note holders,
the interest rate on term indebtedness with a principal amount of $5.0 million
will have an interest rate of no higher than 14.00% for the term of the debt. As
of December 31, 2008, HUGHES Telematics had elected to convert all outstanding
amounts of the term indebtedness to Prime Lending borrowings which resulted in
the term indebtedness bearing an interest rate of 13.25%.
DETERMINATION
OF OFFERING PRICE
The
offering price of the shares of common stock offered hereby is determined by
reference to the exercise price of the warrants issued in our initial public
offering. The exercise price of the warrants covering 15,000,000 shares of
common stock is $7.00 per share.
PLAN
OF DISTRIBUTION
Pursuant
to the terms of the warrants, the shares of common stock will be distributed to
those warrant holders who surrender the certificates representing the warrants
and provide payment of the exercise price through their brokers to our warrant
agent, Continental Stock Transfer & Trust Company.
EXPERTS
The financial statements of Polaris
Acquisition Corp. as of December 31, 2008, for the year ended December 31, 2008
and for the cumulative period from June 18, 2007 (inception) to December 31,
2008, incorporated herein by reference from our Annual Report on Form 10-K and
the March 20, 2009 proxy statement supplement, have been audited by McGladrey
& Pullen, LLP, an independent registered public accounting firm, as stated
in their report referenced therein. The financial statements and the
report of McGladrey & Pullen, LLP are included in reliance upon such report
given upon the authority of McGladrey & Pullen, LLP as experts in auditing
and accounting.
The financial statements of Polaris
Acquisition Corp. as of December 31, 2007 and for the period from June 18, 2007
(inception) to December 31, 2007 incorporated herein by reference from our
Annual Report on Form 10-K, the February 12, 2009 definitive proxy statement and
the March 20, 2009 proxy statement supplement, have been audited by Goldstein
Golub Kessler LLP, the previous independent registered public accounting firm
for Polaris Acquisition Corp., as stated in their report referenced therein
(which report includes an explanatory paragraph as to our ability to continue as
a going concern). The financial statements and the report of
Goldstein Golub Kessler LLP are included in reliance upon such report given upon
the authority of Goldstein Golub Kessler LLP as experts in auditing and
accounting.
The
audited historical financial statements included on page F-16 of Polaris
Acquisition Corp.'s Definitive Proxy Supplement filed March 20, 2009 have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP, an
independent registered public accounting firm, given on the authority of said
firm as experts in auditing and accounting.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
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 Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act and is,
therefore, unenforceable
INCORPORATION OF CERTAIN
INFORMATION BY
REFERENCE
We
incorporate by reference the filed documents listed below, except as superseded,
supplemented or modified by this prospectus, and any future filings we make with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”):
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our
description of our capital stock on Form 8-A For Registration of Certain
Classes of Securities Pursuant to Section 12(b) Or 12(g) of the ’34 Act
filed November 29, 2007;
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our
Annual Report on Form 10-K for the fiscal year ended December 31,
2008;
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our
Current Reports on Form 8-K filed, January 30, 2009, February 12, 2009,
March 3, 2009, March 12, 2009 and March 20,
2009;
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our
definitive proxy statement filed February 12, 2009 and the proxy
supplement thereto filed March 20, 2009;
and
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all
documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus and prior
to the termination of this offering of
securities.
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Potential
investors may obtain a copy of any of the agreements summarized herein (subject
to certain restrictions because of the confidential nature of the subject
matter) or any of our SEC filings without charge by written or oral request
directed to Polaris Acquisition Corp., 2200 Fletcher Avenue, 4th Floor, Fort
Lee, New Jersey 07024, Attention: Jerry Stone or (201)
242-3500.
You
should rely only on the information incorporated by reference or provided in
this prospectus or any prospectus supplement. We have not authorized anyone else
to provide you with different information. We are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus or any prospectus supplement is accurate
as of any date other than the date on the front of those documents.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
This
prospectus, which is part of a registration statement filed with the SEC, does
not contain all of the information set forth in the registration statement or
the exhibits filed therewith. For further information with respect to us and the
common stock offered by this prospectus, please see the registration statement
and exhibits filed with the registration statement.
You may
also read and copy any materials we have filed with the SEC at the SEC’s public
reference room, located at 100 F Street, N.E., Washington, DC 20549. Please call
the SEC at 1-800-SEC-0330 for further information on the public reference room.
In addition, our SEC filings, including reports, proxy statements and other
information regarding issuers that file electronically with the SEC, are also
available to the public at no cost from the SEC’s website at http://www.sec.gov.
No person
is authorized to give any information or to make any representation other than
those contained in this prospectus, and if made such information or
representation must not be relied upon as having been given or authorized. This
prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any security other than the securities offered by this prospectus, or an
offer to sell or a solicitation of an offer to buy any securities by anyone in
any jurisdiction in which the offer or solicitation is not authorized or is
unlawful. The delivery of this prospectus will not, under any circumstances,
create any implication that the information is correct as of any time subsequent
to the date of this prospectus.
Polaris
Acquisition Corp
15,000,000 shares
of common stock
PROSPECTUS
March
, 2009
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses
of Issuance and Distribution.
The other
expenses payable by the registrant in connection with the issuance and
distribution of the securities being registered are estimated as
follows:
|
SEC
Registration Fee
|
|
$ |
0 |
* |
|
Legal
Fees
|
|
$ |
10,000 |
|
|
Accounting
Fees
|
|
$ |
15,000 |
|
|
Miscellaneous
|
|
$ |
5,000 |
|
|
TOTAL
|
|
$ |
30,000 |
|
*Previously
paid. See Explanatory Note following cover page of this Post-Effective Amendment
No. 1 on Form S-3 to Form S-1.
Item
15. Indemnification
of Directors and Officers.
The registrant’s Amended and Restated
Certificate of Incorporation provides that all directors, officers, employees
and agents of the Registrant shall be entitled to be indemnified by the
Registrant to the fullest extent permitted by Section 145 of the Delaware
General Corporation Law.
Section 145 of the Delaware General
Corporation Law concerning indemnification of officers, directors, employees and
agents is set forth below.
“Section 145. Indemnification of
officers, directors, employees and agents; insurance.
(a) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person’s conduct was
unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in good
faith and in a manner which the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that the person’s
conduct was unlawful.
(b) A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in right of the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation, or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses (including attorneys’ fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c) To the extent that a present or
former director or officer of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue or
matter therein, such person shall be indemnified against expenses (including
attorneys’ fees) actually and reasonably incurred by such person in connection
therewith.
(d) Any indemnification under
subsections (a) and (b) of this section (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made, with respect to a person who is a
director or officer at the time of such determination, (1) by a majority vote of
the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) by a committee of such directors designated by
majority vote of such directors, even though less than a quorum, or (3) if there
are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders.
(e) Expenses (including attorneys’
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys’ fees) incurred by former
directors and officers or other employees and agents may be so paid upon such
terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in such person’s official capacity and as to action in another
capacity while holding such office.
(g) A corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person’s status as such, whether or not the
corporation would have the power to indemnify such person against such liability
under this section.
(h) For purposes of this section,
references to “the corporation” shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or was a
director, officer, employee or agent of such constituent corporation, or is or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this section
with respect to the resulting or surviving corporation as such person would have
with respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section,
references to “other enterprises” shall include employee benefit plans;
references to “fines” shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to “serving at the request
of the corporation” shall include any service as a director, officer, employee
or agent of the corporation which imposes duties on, or involves services by,
such director, officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best interests of the corporation” as
referred to in this section.
(j) The indemnification and advancement
of expenses provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby
vested with exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this section or under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a corporation’s
obligation to advance expenses (including attorneys’ fees).”
Item
16.
Exhibits.
See the Exhibit Index immediately
following the signature pages, which is incorporated herein by
reference.
Item
17.
Undertakings.
(a) The
undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this registration
statement:
i. To include any prospectus required
by Section 10(a)(3) of the Securities Act of 1933;
ii. To reflect in the prospectus any
facts or events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than 20 percent change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective registration statement;
and
iii. To include any material
information with respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such information in the
registration statement;
provided, however, that
paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement
is on Form S-3, Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of
determining any liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the 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.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in 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.
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 Post-Effective
Amendment No. 1 on Form S-3 to Form S-1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on March 30, 2009.
|
POLARIS
ACQUISITION CORP.
|
|
By:
|
|
|
Name:
|
Jerry
Stone
|
|
Title:
|
Vice
President
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on March
30, 2009. This document may be executed by the signatories hereto on any number
of counterparts, all of which shall constitute one and the same
instrument.
|
|
|
Position
|
|
Date
|
|
|
|
|
|
/s/
Marc V. Byron
|
|
Chairman
of the Board and CEO
|
|
March
30, 2009
|
|
Marc
V. Byron
|
|
|
|
|
|
|
|
|
|
/s/
Lowell D. Kraff
|
|
President
and Director
|
|
March
30, 2009
|
|
Lowell
D. Kraff
|
|
|
|
|
|
|
|
|
|
/s/
Brian B. Boorstein
|
|
Director
|
|
March
30, 2009
|
|
Brian
B. Boorstein
|
|
|
|
|
|
|
|
|
|
/s/
Stuart I. Oran
|
|
Director
|
|
March
30, 2009
|
|
Stuart
I. Oran
|
|
|
|
|
|
|
|
|
|
/s/
David L. Moore
|
|
Director
|
|
March
30, 2009
|
|
David
L. Moore
|
|
|
|
|
EXHIBIT
INDEX
Some
of the agreements included as exhibits to this prospectus (whether incorporated
by reference to earlier filings or otherwise) may contain representations and
warranties, recitals or other statements that appear to be statements of fact.
These agreements are included solely to provide investors with information
regarding their terms and are not intended to provide any other factual or
disclosure information about us or the other parties to the
agreements.
Representations
and warranties, recitals, and other common disclosure provisions have been
included in the agreements solely for the benefit of the other parties to the
applicable agreements and often are used as a means of allocating risk among the
parties. Accordingly, such statements (i) should not be treated as categorical
statements of fact; (ii) may be qualified by disclosures that were made to the
other parties in connection with the negotiation of the applicable agreements,
which disclosures are not necessarily reflected in the agreement or included as
exhibits hereto; (iii) may apply standards of materiality in a way that is
different from what may be viewed as material by or to investors in or lenders
to us; and (iv) were made only as of the date of the applicable agreement or
such other date or dates as may be specified in the agreement and are subject to
more recent developments. Accordingly, representations and
warranties, recitals or other disclosures contained in agreements may not
describe the actual state of affairs as of the date they were made or at any
other time and should not be relied on by any person other than the parties
thereto in accordance with their terms. Additional information about us may be
found in this prospectus and Polaris’s other public filings, which are available
without charge through the SEC’s website at http://www.sec.gov.
|
Exhibit
|
|
Description
|
| |
|
|
|
2.1
|
|
Second
Amended and Restated Agreement and Plan of Merger (incorporated by
reference from Exhibit 10.1 to Registrant’s Current Report on Form 8-K
dated March 12, 2009)
|
|
4.1
|
|
Specimen
Unit Certificate (incorporated by reference from Exhibit 4.1 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
4.2
|
|
Specimen
Common Stock Certificate (incorporated by reference from Exhibit 4.2 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
4.3
|
|
Specimen
Warrant Certificate (incorporated by reference from Exhibit 4.3 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
4.4
|
|
Form
of Unit Purchase Option (incorporated by reference from Exhibit 4.4 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
4.5
|
|
Form
of Warrant Agreement (incorporated by reference from Exhibit 4.5 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
5.1
|
|
Opinion
of legal counsel (incorporated by reference from Exhibit 5.1 to
Registrant’s Registration Statement on Form S-1 (File No.
333-145759))
|
|
23.1*
|
|
Consent
of McGladrey & Pullen, LLP
|
|
23.2*
|
|
Consent
of PricewaterhouseCoopers LLP
|
|
23.3*
|
|
Consent
of Goldstein Golub Kessler LLP
|
|
23.4
|
|
Consent
of legal counsel (included in Exhibit
5.1)
|