U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 POS
(Amendment No. 2)
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
5G WIRELESS COMMUNICATIONS, INC.
(Exact Name of Company as Specified in its Charter)
Nevada 20-0420885
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
4136 Del Rey Avenue, Marina del Rey, California 90292
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 2006 Stock and Option Plan
(Full title of the Plan)
Andrew D. McCormac, Chief Financial 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
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Aggregate Registration
to be Offering Price Offering Price Fee
Registered Per Share
Common Stock 4,800,000 $0.185 (1) $888,000 $95.02
(1) The 2006 Stock and Option Plan authorizes a total of 6,000,000
shares, 1,200,000 of which were registered under Form S-8's filed on
December 29, 2005 and January 25, 2006. 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 13, 2006 (within 5 business days prior to the date of filing
this registration statement). See 2006 Stock and Option Plan, attached
as Exhibit 4 to this Form S-8 POS.
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.
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:
(1) The Company's latest annual report on Form 10-K for the fiscal
year ended December 31, 2005, filed on April 7, 2006.
(2) 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-K referred to in (a) above, which consists
of the following: (a) Form 8-K filed on February 21, 2006; (b) Form
10-QSB filed on May 22, 2006; (c) Form 8-K filed on June 23, 2006;
(d) Form 8-K filed on July 14, 2006; (e) Form 8-K/A filed on July
14, 2006; (f) Form 10-QSB filed on August 21, 2006; (g) Form 8-K
filed on September 11, 2006; (h) Form 8-K filed on September 25,
2006; (i) Form 8-K filed on October 11, 2006; (j) Form 8-K filed on
October 31, 2006; (k) Form 8-K filed on November 15, 2006; and (l)
Form 10-QSB filed on November 20, 2006.
(3) A description of the securities of the Company as contained in
a Form SB-2 filed on August 8, 2006.
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.
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;
(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.
(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 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) Include any additional or changed material
information on the plan of distribution;
(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;
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;
iii. 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.
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 13, 2006.
5G Wireless Communications, Inc.
By: /s/ Jerry Dix
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
/s/ Jerry Dix President/Chief Executive December 13, 2006
Jerry Dix Officer/Director
/s/ Don Boudewyn Executive Vice December 13, 2006
Don Boudewyn President/Secretary/Treasurer
/Director
/s/ Andrew D. McCormac Chief Financial Officer December 13, 2006
Andrew D. McCormac
EXHIBIT INDEX
Number Description
4 Amended and Restated 2006 Stock and Option Plan, dated
November 28, 2006 (filed herewith).
5 Opinion of Brian F. Faulkner, A Professional Law Corporation
(filed herewith).
23.1 Consent of Squar, Milner, Peterson, Miranda & Williamson,
LLP (filed herewith).
23.2 Consent of Brian F. Faulkner, A Professional Law Corporation
(filed herewith).
24 Power of Attorney (see signature page).