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.
(Exact Name of Registrant as Specified in its Charter)
Nevada 82-0351882
(State of Incorporation) (I.R.S. Employer ID No.)
2921 North Tenaya Way, Suite 234, Las Vegas, Nevada 89128
(Address of principal executive offices) (Zip Code)
Non-Employee Directors and Consultants Retainer Stock Plan
Amended and Restated Stock Incentive Plan
(Full title of the Plans)
Brian F. Faulkner, A Professional Law Corporation,
3900 Birch Street, Suite 113, Newport Beach, California 92660
(Name and address of agent for service)
(949) 975-0544
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Offering Fee
Registered Price Per Price
Share
Common Stock 25,000,000 $0.001 (1) $ 900 $ 0.22
Common Stock 5,000,000 (2) $0.035 (3) $175,000 $41.83
(1) Offering price per share is established under Rule 457(h)(1):
deemed issuance price as set forth in the Non-Employee Directors and
Consultants Retainer Stock Plan (attached as Exhibit 4.1 to this Form S-8).
(2) The Amended and Restated Stock Incentive Plan authorizes a total of
10,000,000 shares, 5,000,000 of which have already been registered in a
Form S-8 filed on December 10, 2001.
(3) Offering price per share established under Rule 457(c): average of
the bid and ask prices as of January 25, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
See Item 2 below.
ITEM 2. REGISTRANT 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.
The participants shall provided a written statement notifying them that
upon written or oral request they 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 Registrant's latest annual report on Form 10-KSB for the
fiscal year ended December 31, 2000, filed on April 17, 2001.
(b) All other reports filed by the Registrant 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.
(c) A description of the securities of the Registrant is contained
in a Form SB-2 filed on January 10, 2002.
All documents subsequently filed by the Registrant 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.
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 Registrant.
Brian F. Faulkner, A Professional Law Corporation, counsel for the
Registrant as giving an opinion on the validity of the securities being
registered, will be receiving 700,000 shares of common stock pursuant to
the Registrant's Non-Employee Directors and Consultants Retainer Stock
Plan under this Form S-8 for legal services to be rendered in the future
under an attorney-client contract between this firm and the Registrant.
These legal services will consist of advice and preparation work in
connection with reports of the Registrant to be filed under the
Securities Exchange Act of 1934, and other general corporate and
securities work for the Registrant. Marc R. Tow, A Professional Law
Corporation, will similarly receive 300,000 shares of common stock under
this Form S-8 for assistance to be provided to Mr. Faulkner under the
attorney-client contract.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Limitation of Liability.
(a) Articles of Incorporation.
The articles of incorporation of the Registrant 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;
(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 Registrant do not contain any
provisions with regard to indemnification.
(b) Bylaws.
The Bylaws of the Registrant 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.
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.
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.
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.
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 Registrant 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) 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) 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.
(e) To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual
report to security holders that is incorporated by reference in the
prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and,
where interim financial information required to be presented by Article
3 of Regulation S-X are not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information
(h) That insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 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 Act and will be governed by the final adjudication of
such issue.
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 authorize, in the City of Las Vegas, State
of Nevada, on January 30, 2002.
5G Wireless Communications, Inc.
By: /s/ Jerry Dix
Jerry Dix, President
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
/s/ Jerry Dix President/Director January 30, 2002
Jerry Dix
/s/ Brian Corty Secretary/Director January 30, 2002
Brian Corty
/s/ Robert Kirish Treasurer (principal January 30, 2002
Robert Kirish financial and accounting
officer)/Director
/s/ Don Boudewyn Assistant Secretary January 30, 2002
Don Boudewyn
EXHIBIT INDEX
Number Exhibit Description
4.1 Non-Employee Directors and Consultants Retainer Stock Plan,
dated January 30, 2002 (see below).
4.2 Amended and Restated Stock Incentive Plan, dated January 30,
2002 (see below).
5 Opinion Re: Legality (see below).
23.1 Consent of Accountants (see below).
23.2 Consent of Counsel (see below).