U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
5G WIRELESS COMMUNICATIONS, INC.
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(Exact Name of Company as Specified in its Charter)
Nevada 20-0420885
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
4136 Del Rey Avenue, Marina del Rey, California 90292
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(Address of Principal Executive Offices) (Zip Code)
2006 Non-Employee Directors and Consultants Retainer Stock Plan
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(Full title of the Plan)
Jerry Dix, Chief Executive Officer
5G Wireless Communications, Inc.
4136 Del Rey Avenue
Marina del Rey, California 90292
(310) 448-8034
(Name, Address, and Telephone Number of Agent for Service)
With a copy to:
Brian F. Faulkner, A Professional Law Corporation
27127 Calle Arroyo, Suite 1923
San Juan Capistrano, California 92675
(949) 240-1361
CALCULATION OF REGISTRATION FEE
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Proposed Maximum
Title of Securities to Amount to be Offering Price Proposed Aggregate Amount of
be Registered Registered Per Share Offering Price Registration Fee
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock 1,000,000 $0.815 (1) $815,000 $87.21
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(1) This offering price per share is calculated under Rule 457(h)(1) (reference
to Rule 457(c)) as the offering price is not known: average of the bid and ask
prices as of December 22, 2005 (within 5 business days prior to the date of
filing this registration statement). See 2006 Non-Employee Directors and
Consultants Retainer Stock Plan, attached as Exhibit 4 to this Form S-8.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
See Item 2 below.
ITEM 2. COMPANY INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The documents containing the information specified in Part I, Items 1
and 2, will be delivered to each of the participants in accordance with Form S-8
and Rule 428 promulgated under the Securities Act of 1933. Upon written or oral
request the participants will be provided, without charge, (i) the documents
incorporated by reference in Item 3 of Part II of the registration statement,
and (ii) other documents required to be delivered pursuant to Rule 428(b). The
statement will inform the participants that these documents are incorporated by
reference in the Section 10(a) prospectus, and shall include the address (giving
title or department) and telephone number to which the request is to be
directed.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following are hereby incorporated by reference:
(a) The Company's annual report on Form 10-KSB for the fiscal year
ended December 31, 2004, filed on March 31, 2005.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by
the Form 10-KSB referred to in (a) above, which consists of: Form 8-K
filed on January 7, 2005; Form 8-K filed on January 14, 2005; Form 8-K
filed on March 30, 2005; Form 8-K filed on March 31, 2005; Form 8-K
filed on April 4, 2005; Form 8-K filed on May 5, 2005; Form 10-Q filed
on June 7, 2005; Form 8-K filed on July 20, 2005; Form 8-K filed on
July 25, 2005; Form 8-K/A filed on August 3, 2005; Form 8-K filed on
August 9, 2005; Form 10-Q filed on August 15, 2005; Form 8-K filed on
August 25, 2005; Form 8-K filed on August 31, 2005; Form 10-Q filed on
November 14, 2005; Form 8-K filed on November 22, 2005; and Form 8-K/A
filed on December 16, 2005.
(c) A description of the securities of the Company is contained in a
Form SB-2 filed on January 10, 2002.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in the registration statement and to be
part thereof from the date of filing of such documents.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Other than as set forth below, no named expert or counsel was hired on
a contingent basis, will receive a direct or indirect interest in the small
business issuer, or was a promoter, underwriter, voting trustee, director,
officer, or employee of the Company.
Brian F. Faulkner, A Professional Law Corporation, counsel for the
Company as giving an opinion on the validity of the securities being registered,
will receive shares of common stock under this Form S-8. These shares will be
paid pursuant to the Company's Non-Employee Directors and Consultants Retainer
Stock Plan in exchange for legal services previously rendered, and to be
rendered in the future, to the Company under an attorney-client contract. These
legal services consist of advice and preparation work in connection with reports
of the Company under the Securities Exchange Act of 1934, and other general
corporate and securities work for the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
LIMITATION OF LIABILITY.
(a) ARTICLES OF INCORPORATION.
The articles of incorporation of the Company provide the following with
respect to liability:
"To the fullest extent permitted by the Nevada corporations laws or any
other applicable law as now in effect or as it may hereafter be amended,
officers or directors of this corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for any action taken or any
failure to take any action, as an officer or director."
(b) NEVADA REVISED STATUTES.
NRS 78.747 LIABILITY OF STOCKHOLDER, DIRECTOR OR OFFICER FOR DEBT OR
LIABILITY OF CORPORATION.
1. Except as otherwise provided by specific statute, no stockholder,
director or officer of a corporation is individually liable for a debt or
liability of the corporation, unless the stockholder, director or officer acts
as the alter ego of the corporation.
2. A stockholder, director or officer acts as the alter ego of a
corporation if:
(a) The corporation is influenced and governed by the stockholder,
director or officer;
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(b) There is such unity of interest and ownership that the corporation
and the stockholder, director or officer are inseparable from each other; and
(c) Adherence to the corporate fiction of a separate entity would
sanction fraud or promote a manifest injustice.
3. The question of whether a stockholder, director or officer acts as
the alter ego of a corporation must be determined by the court as a matter of
law.
INDEMNIFICATION.
(a) ARTICLES OF INCORPORATION.
The articles of incorporation of the Company do not contain any
provisions with regard to indemnification.
(b) BYLAWS.
The Bylaws of the Company provide the following with respect to
indemnification:
"Any person made a party to any action, suit or proceeding, by reason
of the fact that he, his testator or interstate representative is or was a
director, officer or employee of the Corporation or of any corporation in which
he served as such at the request of the Corporation shall be indemnified by the
Corporation against the reasonable expenses, including attorneys fees, actually
and necessarily incurred by him in connection with the defense of such action,
suit or proceeding, or in connection with any appeal therein, except in relation
to matters as to which it shall be adjudged in such action, suit or proceeding,
or in connection with any appeal therein that such officer, director or employee
is liable for gross negligence or misconduct in the performance of his duties.
The foregoing right of indemnification shall not be deemed exclusive of
any other rights to which any officer or director -or employee may be entitled
apart from the provisions of this section.
The amount of indemnity to which any officer or any director may be
entitled shall be fixed by the Board of Directors, except that in any case in
which there is no disinterested majority of the Board available, the amount
shall be fixed by arbitration pursuant to the then existing rules of the
American Arbitration Association."
(c) NEVADA REVISED STATUTES.
"NRS 78.7502 DISCRETIONARY AND MANDATORY INDEMNIFICATION OF OFFICERS,
DIRECTORS, EMPLOYEES AND AGENTS: GENERAL PROVISIONS.
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(1) A corporation may 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,
except an action by or in the right of the corporation, by reason of the fact
that he 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 him in
connection with the action, suit or proceeding if he:
(a) Is not liable pursuant to NRS 78.138 [directors and officers duty
to exercise their powers in good faith and with a view to the interests
of the corporation]; or
(b) Acted in good faith and in a manner which he 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 his 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, does
not, of itself, create a presumption that the person is liable pursuant to NRS
78.138 or did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, or that, with
respect to any criminal action or proceeding, he had reasonable cause to believe
that his conduct was unlawful.
(2) A corporation may 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 the right of the corporation to procure a judgment in its favor by
reason of the fact that he 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 amounts paid in
settlement and attorneys' fees actually and reasonably incurred by him in
connection with the defense or settlement of the action or suit if he:
(a) Is not liable pursuant to NRS 78.138; or
(b) Acted in good faith and in a manner which he reasonably believed to
be in or not opposed to the best interests of the corporation.
Indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction, after
exhaustion of all appeals therefrom, to be liable to the corporation or for
amounts paid in settlement to the corporation, unless and only to the extent
that the court in which the action or suit was brought or other court of
competent jurisdiction determines upon application that in view of all the
circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
(3) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2, or in defense of
any claim, issue or matter therein, the corporation shall indemnify him against
expenses, including attorneys' fees, actually and reasonably incurred by him in
connection with the defense.
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NRS 78.751 AUTHORIZATION REQUIRED FOR DISCRETIONARY INDEMNIFICATION;
ADVANCEMENT OF EXPENSES; LIMITATION ON INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES.
(1) Any discretionary indemnification pursuant to NRS 78.7502, unless
ordered by a court or advanced pursuant to subsection 2, may be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made:
(a) By the stockholders;
(b) By the board of directors by majority vote of a quorum consisting
of directors who were not parties to the action, suit or proceeding;
(c) If a majority vote of a quorum consisting of directors who were not
parties to the action, suit or proceeding so orders, by independent
legal counsel in a written opinion; or
(d) If a quorum consisting of directors who were not parties to the
action, suit or proceeding cannot be obtained, by independent legal
counsel in a written opinion.
(2) The articles of incorporation, the bylaws or an agreement made by
the corporation may provide that the expenses of officers and directors incurred
in defending a civil or criminal action, suit or proceeding must be paid by the
corporation as they are incurred and in advance of the final disposition of the
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the director or officer to repay the amount if it is ultimately determined by a
court of competent jurisdiction that he is not entitled to be indemnified by the
corporation. The provisions of this subsection do not affect any rights to
advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
(3) The indemnification pursuant to NRS 78.7502 and advancement of
expenses authorized in or ordered by a court pursuant to this section:
(a) Does not exclude any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under the
articles of incorporation or any bylaw, agreement, vote of stockholders
or disinterested directors or otherwise, for either an action in his
official capacity or an action in another capacity while holding his
office, except that indemnification, unless ordered by a court pursuant
to NRS 78.7502 or for the advancement of expenses made pursuant to
subsection 2, may not be made to or on behalf of any director or
officer if a final adjudication establishes that his acts or omissions
involved intentional misconduct, fraud or a knowing violation of the
law and was material to the cause of action.
(b) Continues for a person who has ceased to be a director, officer,
employee or agent and inures to the benefit of the heirs, executors and
administrators of such a person.
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NRS 78.752 INSURANCE AND OTHER FINANCIAL ARRANGEMENTS AGAINST LIABILITY
OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS.
1. A corporation may purchase and maintain insurance or make other
financial arrangements on behalf of any person who 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 for any
liability asserted against him and liability and expenses incurred by him in his
capacity as a director, officer, employee or agent, or arising out of his status
as such, whether or not the corporation has the authority to indemnify him
against such liability and expenses.
2. The other financial arrangements made by the corporation pursuant to
subsection 1 may include the following:
(a) The creation of a trust fund.
(b) The establishment of a program of self-insurance.
(c) The securing of its obligation of indemnification by granting a
security interest or other lien on any assets of the corporation.
(d) The establishment of a letter of credit, guaranty or surety.
No financial arrangement made pursuant to this subsection may provide protection
for a person adjudged by a court of competent jurisdiction, after exhaustion of
all appeals therefrom, to be liable for intentional misconduct, fraud or a
knowing violation of law, except with respect to the advancement of expenses or
indemnification ordered by a court.
3. Any insurance or other financial arrangement made on behalf of a
person pursuant to this section may be provided by the corporation or any other
person approved by the board of directors, even if all or part of the other
person's stock or other securities is owned by the corporation.
4. In the absence of fraud:
(a) The decision of the board of directors as to the propriety of the
terms and conditions of any insurance or other financial arrangement
made pursuant to this section and the choice of the person to provide
the insurance or other financial arrangement is conclusive; and
(b) The insurance or other financial arrangement:
(1) Is not void or voidable; and
(2) Does not subject any director approving it to personal
liability for his action, even if a director approving the insurance or
other financial arrangement is a beneficiary of the insurance or other
financial arrangement.
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5. A corporation or its subsidiary which provides self-insurance for
itself or for another affiliated corporation pursuant to this section is not
subject to the provisions of Title 57 of NRS."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable
ITEM 8. EXHIBITS.
The Exhibits required by Item 601 of Regulation S-B, and an index
thereto, are attached.
ITEM 9. UNDERTAKINGS.
The undersigned Company hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this 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;
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to
be the initial bona fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(4) For determining liability of the undersigned small
business issuer under the Securities Act to any purchaser in the
initial distribution of the securities, the undersigned small business
issuer undertakes that in a primary offering of securities of the
undersigned small business issuer pursuant to this registration
statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned small business issuer will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned small business issuer relating to the offering
required to be filed pursuant to Rule 424;
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(ii) Any free writing prospectus relating to the
offering prepared by or on behalf of the undersigned small
business issuer or used or referred to by the undersigned
small business issuer;
(ii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned small business issuer or its securities
provided by or on behalf of the undersigned small business
issuer; and
(iv) Any other communication that is an offer in the
offering made by the undersigned small business issuer to the
purchaser.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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
authorize, in the City of Marina del Rey, California, on December 29, 2005.
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
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Jerry Dix, Chief Executive Officer
SPECIAL POWER OF ATTORNEY
The undersigned constitute and appoint Jerry Dix their true and lawful
attorney-in-fact and agent with full power of substitution, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this Form S-8 registration
statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting such
attorney-in-fact the full power and authority to do and perform each and every
act and thing requisite and necessary to be done in and about the premises, as
fully and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that such attorney-in-fact may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
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/s/ Jerry Dix President/Chief Executive Officer/Director December 29, 2005
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Jerry Dix
/s/ Don Boudewyn Executive Vice December 29, 2005
- ------------------------- President/Secretary/Treasurer/Director
Don Boudewyn
/s/ Lawrence C. Early Chief Financial Officer December 29, 2005
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Lawrence C. Early
/s/ Phil E. Pearce Director December 29, 2005
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Phil E. Pearce
/s/ Stanley A. Hirschman Director December 29, 2005
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Stanley A. Hirschman
/s/ Murray H. Williams Director December 29, 2005
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Murray H. Williams
/s/ Kirk Haney Director December 29, 2005
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Kirk Haney
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EXHIBIT INDEX
Number Description
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4 2006 Non-Employee Directors and Consultants Retainer Stock Plan, dated
December 21, 2005 (filed herewith).
5 Opinion of Brian F. Faulkner, A Professional Law Corporation (filed
herewith).
23.1 Consent of Squar, Milner, Reehl & Williamson, LLP (filed herewith).
23.2 Consent of Brian F. Faulkner, A Professional Law Corporation (filed
herewith).
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