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 Registrant as Specified in its Charter)
Nevada 82-0351882
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(State of Incorporation) (I.R.S. Employer ID No.)
4136 Del Rey Ave. Marina Del Rey California 90292
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(Address of principal executive offices) (Zip Code)
2004 Non-Employee Directors and Consultants Retainer Stock Plan
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(Full title of the Plan)
Jerry Dix
4136 Del Rey Avenue
Marina Del Rey, California 90292
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(Name and address of agent for service)
(310) 448-8022
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(Telephone number, including area code, of agent for service)
copies to:
Kevin Leung, Esq.
Richardson & Patel LLP
10900 Wilshire Blvd. Suite 500
Los Angeles, CA 90024
(310) 208-1182
CALCULATION OF REGISTRATION FEE
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Proposed
Title of Amount to be Maximum Proposed Amount of
Securities to be Registered Offering Price Aggregate Registration
Registered Per Share Offering Price Fee
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Common Stock 150,000,000 $0.03 (1) $4,500,000 $570.15
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(1) Estimated pursuant to Rule 457(h) solely for purposes of calculating amount
of registration fee, based upon the average of the high and low prices reported
on June 16, 2004, as reported on the OTC Electronic Bulletin Board.
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 be 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, 2003, filed on May 19, 2004, as
amended on May 20, 2004.
(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.
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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.
Richardson & Patel LLP, counsel for the Registrant is giving an opinion
on the validity of the securities being registered. This counsel owns 392,157
shares of the Company's common stock and this counsel may be receiving shares of
common stock pursuant to the 2004 Non-Employee Directors and Consultants Stock
Plan in exchange for legal services consisting of advice and preparation work in
connection with reports of the Registrant under the Securities Exchange Act of
1934 and other general corporate and securities work previously rendered and to
be rendered in the future to the Registrant under an 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.
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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:
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(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.
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(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 Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
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.
4. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
5. 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
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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.
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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 Marina Del Rey, California, on June 21, 2004.
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 Chief Executive Officer (principal June 21, 2004
- ----------------- executive officer)/Director
Jerry Dix
/s/ Don Boudewyn Acting Chief Financial Officer (principal June 21, 2004
- ----------------- accounting & financial office)/Director
Don Boudewyn
/s/ Brian Corty Secretary/Director June 21, 2004
- -----------------
Brian Corty
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EXHIBIT INDEX
Number Exhibit Description
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4 2004 Non-Employee Directors and Consultants Retainer Stock
Plan.
5 Opinion Re: Legality.
23.1 Consent of Accountants.
23.2 Consent of Counsel.
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