U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): July 27, 2008
5G WIRELESS COMMUNICATIONS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Nevada 0-30448 20-0420885
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
409 North Pacific Coast Highway, Suite 799, Redondo Beach, California 90277
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (949) 873-8071
2771 Plaza del Amo, Suite 805, Torrance, California 90503
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (See General Instruction A.2 below):
[ ] Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-
2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-
4(c) under the Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01 ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On September 10, 2008, the Company entered into a Wireless
Creditor Trust agreement with Clear Choice Capital, Inc. (a copy of
this trust is attached as Exhibit 10 to this Form 8-K). The purpose
of this trust is to pay the creditors of the Company. On October 27,
2008, the Company ordered that 100,000,000 restricted shares of
common stock be issued to this trust. Clear Choice Capital has
resigned as trustee of this trust and the Company is exploring its
options in replacing the trustee.
ITEM 5.02 DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF
DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS
On July 27, 2008, the Company's board of directors appointed
James R. Clarke as the new chief executive officer, replacing Jerry
Dix. Subsequently, on that date, Jerry Dix and Don Boudewyn resigned
as officers and directors of the Company.
On December 15, 2008, Mr. Clarke appointed Bo Linton to the
Company's Board of Directors and as Chief Executive Office in place of
himself. Thereafter, on the same date Mr. Clarke resigned from the
Company's Board of Directors.
Mr. Linton, age 38, founded International Capital Group, Inc. in
1998, a successful mergers and acquisitions firm. Under his
leadership as president and CEO, this company advised on numerous
mergers and acquisitions with private and publicly traded companies.
In 2001 Mr. Linton left his previous position to found Berserker
Entertainment, Inc. Mr. Linton served as Chairman of the Board for
this production, distribution, and HD post-production facility until
the end of 2004. From March 2005 to October 2005, he served as the
president of Seamless Skyyfi, Inc., a wholly owned subsidiary of the
public company Seamless Wi-Fi, Inc. In November 2005, Mr. Linton
left his last position and founded the company Carbon Jungle LLC and
served as President and CEO of this environmental company. After
leaving this position, he served as president and a Director of
MagneGas Corporation, a reporting company in the waste to fuel
industry, from March 2007 to July 2008.
Mr. Linton received his Bachelor's degree from Louisiana State
University in the spring of 1994. Some of his studies included:
business law, economics, finance, environmental science,
theater, real estate, and speech.
In 2001, Mr. Linton produced his first feature film (on which he
served as both director/producer and lead actor) entitled "Ronny
Camaro and Seven Angry Women." During 2006, he was a co-executive
producer of the feature film "Living Luminaries," a spiritual
docudrama shown in theaters in 2008.
As yet, Mr. Linton has not been named to any committee of the
Company.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
Exhibits.
Exhibits included are set forth in the Exhibit Index pursuant
to Item 601of Regulation S-K.
SIGNATURE
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly
authorized.
5G Wireless Communications, Inc.
Dated: January 7, 2009 By: /s/ Bo Linton
Bo Linton, President
EXHIBIT INDEX
Number Description
10 The Wireless Creditor Trust between the Company and Clear
Choice Capital, Inc., dated September 10, 2008 (filed herewith).
THE WIRELESS CREDITOR TRUST
This Trust Agreement (this "Agreement") is made effective as of
September 10, 2008, by and between 5G Wireless Communications, Inc.,
located at 2134 Vista Entrada, Newport Beach, CA (herein referred to
as the "Grantor"), Clear Choice Capital, Inc., located at 3920 Birch
Street, Suite 104, Newport Beach, CA (hereinafter referred to as
"Trustee"). The terms "Creditor Trust" or "Creditor Trust Estate"
shall refer to the assets to be administered pursuant to this
Agreement. Grantor declares that:
ARTICLE I. PURPOSES
The Grantor has established the Trust to accomplish the following
objectives and all of the provisions of this Agreement should be
interpreted in a manner consistent with the following objectives:
Section 1.01 Primary Objective.
Grantor desires to establish a Creditor Trust to be administered by
the Trustee pursuant to the terms of this Agreement from which income
and/or principal can be distributed to or applied for the benefit of
a class identified as the Beneficiaries. The mission of the Trust is
to analyze and verify liabilities of the Grantor, and settle each
claim with either cash payment or common stock of the Grantor. The
establishment of this Trust does not deem that the Grantor is neither
insolvent nor is it an assignment for the benefit of Creditors.
Section 1.02 Use of Assets of Creditor Trust Estate.
It is the Grantor's intention that the assets of the Creditor Trust
Estate be accumulated for the benefit of the Beneficiaries and that
such assets may, based upon settlement agreements approved by the
Trustee, be used to provide for payment of Approved Creditors of the
Grantor, herein referred to as Beneficiaries.
ARTICLE II. DECLARATIONS
Section 2.01 Irrevocability.
This Agreement and all interests in it are irrevocable and neither
the Grantor nor any of the Beneficiaries shall have any power to
alter, amend, revoke, or terminate the Trust or any of its provisions
or interest, whether under the terms of this Trust or any statute or
other rule of law. The only way in which this Agreement may be
altered or amended is pursuant to the power granted to the Trust Protector.
Section 2.02 Conveyance to Trustee.
Grantor hereby irrevocably transfers, sets over, assigns, and
conveys, without consideration, to the Trustee named in this
Agreement all the property described in the attachment to this
Agreement and marked as "Asset Exhibit". The Grantor or any other
person or entity, with the exception of class identified as
Beneficiaries, may also transfer or convey additional property to the
Trustee at any time to be held and administered according to the
terms of this Agreement. Except as modified by the provisions of this
Agreement, the Trustee shall have all the interests, rights, powers,
options, incidents of ownership, advantages, titles, benefits and
privileges which the Grantor now has or hereafter may have in and to
said property.
Section 2.03 Trustee Refusal.
Trustee may refuse to pay any of the Beneficiaries if they bring
legal action against the Trust.
Section 2.04 Name of Trust.
This trust shall be known as the:
THE WIRELESS CREDITOR TRUST
Section 2.05 Identity of Creditor Trust Estate.
All assets described in the attached "Asset Exhibit", any other
property that may hereafter be transferred or conveyed to and
received by the Trustee to be held pursuant to the terms of this
Agreement and any accrued and undistributed income from property
transferred to the Trustees is herein referred to as the "Trust
Estate" and shall be held, administered and distributed by the
Trustee as provided in this Agreement.
Section 2.06 Identity of Parties.
As used in this Agreement:
A. The term "Grantor" shall refer to 5G Wireless Communications,
Inc. and any other corporation and/or individual as listed in
Addendum I.
B. The term "Trustee" shall refer to, the individual and/or
corporation as listed in Addendum I, when serving as Trustee or
to any other individual or corporate trustee then serving in that
position pursuant to the terms of this Agreement.
C. The term "Trust Protector" shall refer to the individual and/or
corporation and, or to any other individual or entity then
serving in that position pursuant to the terms of this Agreement
as listed in "Addendum I".
D. The term "Beneficiary" shall refer to "Approved Creditors" whose
debt as a "Creditor" has been approved by the Trustee for payment.
E. The term "Creditor" shall refer to a debt of the Grantor, of
which the amount claimed as owed may be in dispute with the
Grantor, and whose debt has not been approved by the Trustee.
F. The term "Claimant" shall refer to a potential creditor that may
have a judgment obtained through the courts and or may have
brought suit to perfect a potential claim which the Grantor maybe
be appealing the judgment and or defending against the suit in
the courts.
G. Beneficiary, Creditor and Claimant are collectively referred to
herein as "Beneficiaries."
Section 2.07 Trustee, Successor Trustees and Scope of Authority.
A. The individual and/ or corporation as listed in Addendum I, or
its successor, shall serve as Trustee.
B. The Trust Protector shall name a successor Trustee in the event
that the Trustee, as listed in Addendum I, and/or its successor,
should resign or otherwise be unable to serve as Trustee.
C. The Trust Protector may also remove and replace the Trustee then
serving and name a successor Trustee to serve in its place by
giving a thirty-day written notice to the Trustee then serving
and including with that notice the executed consent of the
Trustee named as a replacement.
D. The Trustee shall invest and manage the assets of the Trust
Estate except that it shall not make any investments, other than
investing cash into a cash sweep account drawing interest.
E. The Trustee may make distributions pursuant to the specific
settlement agreements that a have been reached with a Creditor of
the Grantor, when that Creditor is then listed as a Beneficiary
of this Trust.
F. When Trustee receives any request to make a distribution, the
Trustee may delay any such action until it has confirmation that
it has good funds from which to make such distribution.
G. The Trustee shall prepare and file the Fiduciary Income Tax
return annually as required by the Internal Revenue Code.
H. Any Trustee then serving shall have all of the powers and duties
assigned and conferred on the Trustee under the terms of this
Agreement and shall be subject to the limitations on its
authority as outlined above.
I. No Trustee then serving shall be liable for any action taken
pursuant to the written settlement agreements while serving as
Trustee.
J. No successor Trustee shall be liable for any act, omission, or
default of a predecessor Trustee. No successor Trustee shall have
any duty to investigate or review any action of a predecessor
Trustee and may accept all the records of the predecessor
Trustee, including the accounting records that disclose the
assets of the Trust, without further investigation and without
incurring any liability to any person who shall claim or have an
interest in the trust.
K. No bond or other security is required of any of those named as
Trustee or successor Trustee, notwithstanding any provisions of
law to the contrary.
Section 2.08 Trust Protector, Successors and Scope of Authority.
A. The individual and/or corporation as listed in Addendum I shall
serve as the Trust Protector.
B. The Trust Protector may name a successor Trust Protector to serve
in the event that he or she should become unable or unwilling to
serve in that capacity.
C. In the event that the Trust Protector then serving becomes unable
or unwilling to serve in that capacity and he or she has not
named a successor Trust Protector, the Grantor shall nominate a
successor Trust Protector subject to confirmation by a Court of
proper jurisdiction. No individual or entity who has contributed
assets to the Trust Estate nor any individual or entity who is a
member of the class identified as Beneficiaries shall serve as
the Trust Protector.
D. Not successor Trust Protector shall be liable for any act,
omission, or default of a predecessor. No successor Trust
Protector shall have any duty to investigate or review any action
of a predecessor and may accept all the records of the
predecessor without further investigation and without incurring
any liability to any person who shall claim or have an interest
in the Trust.
E. The Trust Protector and any successor Trust Protector then
serving shall have the authority to remove and/or replace the
Trustee, then serving.
F. The Trust Protector shall also have the authority to amend or
alter the Agreement so long as any such amendment or alteration
is in writing, so long as the amendment or alteration does not
change the stated objectives of the Grantor in establishing the
Trust and, to the extent that the duties, responsibilities or
possible liability of the Trustee may be adversely affected, the
amendment or alteration is approved by the Trustee then serving.
G. The Trust Protector may even terminate the Trust if, in the
judgment of the Trust Protector, the Trust can no longer meet the
stated objectives of the Grantor in establishing the Trust.
H. No bond or other security is required of any of those named as
Trust Protector or successor Trust Protector, notwithstanding any
provisions of law to the contrary.
ARTICLE III. DISTRIBUTIONS
Section 3.01 Distribution of Accumulated of Trust Principal.
During the term of this Trust, the Trustee may distribute the
principal of the Creditor Trust as approved and/or directed by the
Trustee. Distribution shall be made in the form of cash or common
stock of the Grantor. Any income that is not distributed shall be
added it to the principal of the Trust.
Section 3.02. Termination of Trust
Unless sooner terminated in accordance with other provisions of this
Agreement or pursuant to the exercise of the Limited Power of
Appointment, any bust created under this Agreement shall terminate
four (4) years or/after the last of the group composed of the
individuals included in the class identified as Beneficiaries who
have been paid as per agreement with the Creditor Trust whichever
comes first.
Section 3.03. Distribution Upon Termination.
In the event of the termination of the Trust, the Trustee shall
distribute the remaining assets of the Trust Estate, including all
undistributed income and principal, pursuant to any exercise of the
limited power of appointment granted to the Grantor
Section 3.04 Complete Distribution
Any assets or income not otherwise distributed pursuant to the terms
of this Agreement shall be distributed as follows to the Grantor.
ARTICLE IV. POWERS OF TRUSTEE
Except as specifically restricted by the terms of this Agreement, the
Trustee shall have all the powers enumerated in Nevada Revised
Statutes 163.265 through Nevada Revised Statutes 163.410, inclusive,
as such powers exist at the time of the execution of this Agreement;
and such powers are incorporated herein by reference as permitted by
Nevada Revised Statutes 163.260. In addition, the Trustee shall have
the following powers. In the event any of the powers granted by
Nevada Revised Statutes 163.265 through 163.410 are inconsistent with
any of the powers or discretions hereinafter set forth, the following
powers shall control.
A. Power as Owner. To do all the acts, to take all the proceedings,
and to exercise all the rights, powers, and privileges which an
absolute owner of the same property would have, subject always to
the discharge of the Trustee's fiduciary obligations. The
enumeration of certain powers in this Agreement shall not limit
the general or implied powers of an owner.
B. Additional Powers as Necessary. The Trustee shall have all
additional powers that may now or hereafter be conferred by law
or that may be necessary to enable the Trustee to administer the
assets of the Creditor Trust Estate in accordance with the
provisions of this Agreement.
C. Limitation on Liability. The Creditor Trust Estate and not the
Trustee shall be liable for any loss which may occur so long as
the Trustee has acted within the discretion and powers granted
herein.
D. Presumption if Securities in Trustee's Name. It shall be
conclusively presumed that any assets held in the Trustee's own
name which are also listed as an asset of the Creditor Trust
Estate on one or more of the schedules attached to this Agreement
are assets of the Creditor Trust Estate. There shall be no
requirement that the Trustee or any other party reveal a business
relationship with respect to any assets of the Creditor Trust Estate.
E. Broad Powers of Division. To divide any Trust into separate
shares to be retained as separate Trusts when the Trustee is
directed to do so or when the Trustee deems it advisable to make
such division and in making such division, to apportion and
allocate the assets of the Creditor Trust Estate in cash or in
kind, or partly in cash and partly in kind, even if shares be
composed differently, or in undivided interests, in the manner
deemed advisable in the discretion of the Trustee and to sell any
property deemed necessary by the Trustee to make the division or
distribution. After any division of the Creditor Trust Estate,
the Trustee may make joint investments with funds from some or
all of the several shares or trusts, but the Trustee shall keep
separate accounts for each share or !lust.
F. Power to Abandon. To abandon any trust assets or interest therein
at the discretion of the Trustee.
G. Power to Disburse. To disburse money from the Creditor Trust
Estate to any Beneficiary or to any other person or entity on
such terms and conditions as the Trustee shall deem advisable.
H. Power to Rely on Advice of Attorney. The Trustee may consult with
the attorney employed by them concerning any question which may
arise with regard to the duties of the Trustee and, provided
reasonable care has been exercised in selecting the attorney, the
opinion of the attorney shall be full and complete authorization
and protection in regard to any action taken or suffered by the
Trustee in good faith and in accordance with the opinion of the
attorney.
I. Power of Arbitration. To Arbitrate any claim if the Trustee so
chooses to do so with an Arbitrator located in Orange County,
California, and recognized as one by the California State Bar
Association and accepted by the Trustee and either the
Beneficiary, Unknown Creditor, Claimant and/or Unknown Claimant
in the state of California. In any such Arbitration both side
would pay their own respective costs.
J. Power to Make Tax Elections. To make any and all elections
permitted by any tax law applicable to any trust, to the Grantor
or the estate of the Grantor, and no adjustments shall be
necessary among the beneficiaries of any trust as to the income
or principal of such trust as a result of the exercise of such
election.
K. Certain Powers Void. Any power, duty or discretionary authority
granted to the Trustee shall be void (i) to the extent that the
power, duty or discretionary authority would cause the assets of
any Trust created hereunder to be included in the estate of any
Trustee other than the Grantor for Federal estate tax purposes or
(ii) to the extent that the power, duty or discretionary
authority would cause the income of any Trust created hereunder
to be attributable to any Trustee other than the Grantor for
Federal income tax purposes.
L. Power to Resign. To resign as Trustee by providing written notice
of resignation to the beneficiaries then entitled to
distribution. Any such resignation shall become effective the
earlier of the appointment of the successor trustee by the
Trustee and/ or 60 days after receipt of the written notice of
resignation.
ARTICLE V. GENERAL PROVISIONS
Section 5.01 No Contest Provision.
In the event that any person or entity who is among the class
identified as Beneficiaries of this Trust, singly or in conjunction
with any other person, persons or entity, should contest the validity
of this Agreement in any court, should seek to obtain an adjudication
that this Agreement or any provision thereof is void or
unenforceable, the person or entity shall receive the sum of $1.00
and the terms of this Agreement shall be interpreted as if such
person or entity was never a member of the class identified herein as
Beneficiaries.
The Trustee is hereby authorized and directed to defend, at the
expense of the Creditor Trust, any such contest or attack on the
validity of this Agreement and the validity of any specific term of
this Agreement.
Section 5.02 Spendthrift Trusts.
Each trust created by this Agreement shall be a spendthrift trust. No
Beneficiary of any trust established under this Agreement shall have
any right or power to sell, transfer, assign, pledge, mortgage,
alienate or hypothecate his or her interest in the principal or
income of the Trust Estate in any manner whatsoever. To the fullest
extent of the law, the interest of each and every Beneficiary shall
not be subject to the claims of any of his or her creditors or liable
to attachment, execution, bankruptcy proceedings, or any other legal
process. The Trustee shall pay, disburse and distribute principal and
income of the Trust Estate only in the manner provided for in this
Agreement, and not upon any attempted transfer or assignment, whether
oral or written, neither of any Beneficiary nor
by operation of law.
Section 5.03 Reports to Beneficiaries.
The Trustee hereunder is relieved from any obligation to file or make
any inventory, appraisement, return or report to any court, but shall
render an annual statement showing the condition of the Creditor
Trust Estate including the current assets, the receipts and the
disbursements during the preceding year, to the Trustee and to any of
the Beneficiaries.
Section 5.04 Trusts to Include Shares or Partial Shares.
The terms "trust", "trusts", or "any trust provided for in this
Agreement" shall, as used in this Agreement, unless otherwise
specifically provided herein, refer to each of the separate trusts
provided for, respectively, and the Trust Estate of each trust. There
need be no physical segregation or division of the various trusts
except as segregation or division may be required by termination of
any of the trusts, but the Trustee shall keep separate accounts for
the different individual interests.
Section 5.05 Law for Construction of Trusts.
The trusts provided for in this Agreement have been accepted by the
Trustee in the State of California, will be administered by the
Trustee in California, and their validity, construction, and all
rights under them shall be governed by the laws of the State of
California.
Section 5.06 Headings.
The headings in this Agreement are for convenience only and are not
part of the text of the Agreement.
Section 5.07 Disclaimers.
Any Beneficiary of any trust created by this Agreement, or such
Beneficiary's personal representative, without the necessity of any
prior court authorization or approval of any kind, may disclaim all
or any part or portion of his or her benefits or powers, by written
instrument delivered to the Trustee or in any other manner recognized
by law.
Section 5.08 Invalidity of Any Provision.
Should any provision of this Agreement be or become invalid or
unenforceable, the remaining provisions of this Agreement shall be
and continue to be fully effective.
Section 5.09 Singular and Plural Interchangeable.
As used in this Agreement, the singular and plural of any word shall
be deemed to include the other whenever the facts and context so require.
Section 5.10 Trustee Fees.
The Trustee, its affiliates, and advisors, shall be entitled to
reasonable and customary fees, and shall also be entitled to be
reimbursed for all expenses incurred by the Trust, the Trustee, its
affiliates, and its advisors in connection with the services provided
to the Trust. Said expenses include, but are not limited to
accounting, legal, copies, telephone, travel, and facsimile.
EXECUTED at Newport Beach, on September 10, 2008
GRANTOR
5G Wireless Communications, Inc.
By: James Clarke
James Clarke, President
EXECUTED at Newport Beach, on September 10, 2008
TRUSTEE
Clear Choice Capital, Inc.
By: Marc R. Tow
Marc R Tow, President
ADDENDUM I
A. The term "Grantor" shall refer to 5G Wireless Communications, Inc.
and approved creditors.
B. The term "Trustee" shall refer to
ASSET EXHIBIT
"Trust Assets" mean those assets irrevocably assigned, transferred,
conveyed and delivered to the described herein as shares of common
stock of 5G Wireless Communications, Inc. on the Effective Date.
The Trust shall be funded by the Grantor by delivering the shares to
the Trustee on the Effective Date.
The Trustee shall use the shares consistent with the purposes of the
Trust and subject to the terms and conditions of this Trust
Agreement. Additional Deposit(s) may be made at the discretion of the
Grantor.