SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ARC Wireless Solutions, Inc.
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(Exact Name of Registrant as Specified in its Charter)
Utah 87-0454148
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10601 West 48th Avenue
Wheat Ridge, Colorado, 80033-2660
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(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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2007 Stock Incentive Plan
(Full Name of Plan)
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Randall P. Marx, Chief Executive Officer
10601 West 48th Avenue
Wheat Ridge, Colorado, 80033-2660
(303) 421-4063
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copy to:
Alan Talesnick, Esq.
Melissa Mong, Esq.
Patton Boggs LLP
1801 California Street, Suite 4900
Denver, Colorado 80202
(303) 830-1776
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Offering Price per Aggregate Offering Registration Fee
Registered Registered (1) Share (2) Price (2) (2)
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Common Stock, par value 300,000 $5.06 $1,518,000 $46.60
$.0005 per share
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(1) This Registration Statement covers 300,000 shares of common stock and shares of common stock
underlying stock options or restricted stock units that may be issued from time to time pursuant to
the 2007 Stock Incentive Plan, collectively. To the extent additional shares of common stock may be
issued or become issuable as a result of a stock split, stock dividend, or other distribution
involving the common stock while this registration statement is in effect, this registration
statement hereby is deemed to cover all such additional shares of common stock in accordance with
Rule 416 under the Securities Act of 1933, as amended. (2) The price of $5.06 per share, which was
the average of the high and low prices of the Registrant's common stock, as reported on the NASDAQ
Capital Market (the "NASDAQ CM") on September 17, 2007, is set forth solely for purposes of
calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) of the Securities Act of
1933, as amended.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 (this "Registration Statement")
registers shares of Common Stock, par value $0.0005 per share (the "Common
Stock"), of ARC Wireless Solutions, Inc., a Utah corporation (the "Company" or
the "Registrant"), issuable under the ARC Wireless Solutions, Inc. 2007 Stock
Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.**
Item 2. Registrant Information and Employee Plan Annual Information.**
** The documents containing the information specified in Part I of Form S-8
will be delivered to participants in the Plan, covered by this Registration
Statement, in accordance with Form S-8 and Rule 428(b)(1) under the
Securities Act of 1933, as amended (the "Securities Act"). Such documents
are not required to be, and are not, filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424 of the
Securities Act. These documents and the documents incorporated by reference
into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Company pursuant
to the Exchange Act of 1934, as amended (the "Exchange Act"), and the Securities
Act are incorporated by reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2006 filed with the Commission April 2, 2007;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2007, filed with the Commission on August 6, 2007 and the Company's
Quarterly Report on Form 10-Q for the quarter ended March 31, 2007, filed with
the Commission on May 15, 2007;
(c) The Company's Current Report on Form 8-K, filed with the Commission on
August 8, 2007, May 21, 2007, February 9, 2007 (except for Item 7.01 and
Exhibits 99.1); and
(d) The description of the Company's Common Stock set forth under the
caption "Description of Securities" in the prospectus contained in the Company's
Registration Statement on Form SB-2, File No. 333-100293, as originally filed
with the Securities and Exchange Commission on October 3, 2002 or as
subsequently amended.
In addition, all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement, which indicates that
all securities offered herein have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing of such documents with the
Commission.
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Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference in this Registration Statement, modifies or supersedes such prior
statement. Any statement contained in this Registration Statement shall be
deemed to be modified or superseded to the extent that a statement contained in
a subsequently filed document that is or is deemed to be incorporated by
reference in this Registration Statement modifies or supersedes such prior
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in the Section 10(a) prospectus), other documents
required to be delivered to eligible employees pursuant to Rule 428(b) of the
Securities Act or additional information about the Plan are available without
charge to participants by contacting the Secretary, ARC Wireless, Inc., 10601
West 48th Avenue, Wheat Ridge, Colorado, 80033-2660 (telephone number: (303)
421-4063).
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The validity of the common stock covered by this Registration Statement has
been passed upon for the Company by Patton Boggs LLP. A copy of this opinion is
attached as exhibit 5.1 to this Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The following summary is qualified in its entirety by reference to the
complete copy of the Utah Revised Business Corporation Act, or URBCA, and the
Company's Amended and Restated Articles of Incorporation and Bylaws.
The Company's Amended and Restated Articles of Incorporation provide that
the Company shall indemnify, except to the extent otherwise required by the
URBCA, any director or officer of the Company who was or is a party, or is
threatened to be made a party to any threatened, pending or completed proceeding
against all fees and expenses reasonably incurred by him in connection with such
proceeding, if he acted in good faith, in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and with respect to any
criminal action or proceeding, had not reasonable cause to believe his conduct
was unlawful. The Company's Bylaws also include provisions for the
indemnification of the Company's directors and officers to the fullest extent
permitted by Section 16-10a-841of the URBCA.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISRTATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
The following documents are filed as exhibits to this Registration
Statement:
Exhibit
Number Exhibit
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5.1 Opinion and Consent of Patton Boggs LLP
10.1 2007 Stock Incentive Plan (Incorporated by reference from
the Current Report on Form 8-K filed on August 8, 2007)
23.1 Consent of Hein & Associates LLP.
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto)
ITEM 9. UNDERTAKINGS
The 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 to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information in
the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end
of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-8 and the information required to be
included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by
reference to the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to the directors, officers and controlling persons of the
registrant pursuant to the foregoing provision, or otherwise, the registrant has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act and will be governed by final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant
certifies that it has reasonable grounds to believe that its 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
authorized, in Wheat Ridge, Colorado on the 20th day of September 2007.
ARC WIRELESS SOLTUIONS, INC.
By: /s/ Randall P. Marx
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Randall P. Marx, Chief Executive Officer
ARC WIRELESS SOLTUIONS, INC.
By: /s/ Monty R. Lamirato
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Monty R. Lamirato, Chief Financial Officer
Each person whose signature appears below appoints Randall P. Marx, as true
and lawful attorney-in-fact and agent, with full power of substitution to sign
any amendments (including post-effective amendments) to this Registration
Statement and to each registration statement amended hereby, and to file the
same, with all exhibits and other related documents, with the Commission, with
full power and authority to perform any necessary or appropriate act in
connection with the amendment(s).
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
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/s/Randall P. Marx Chief Executive Officer; September 20, 2007
------------------ Chairman of Board;
Randall P. Marx Secretary; Director
/s/Sigmund A. Balaban Director; Audit Committee September 20, 2007
--------------------- Chairman
Sigmund A. Balaban
/s/Robert E. Wade Director; Compensation September 20, 2007
------------------ Committee Chairman
Robert E. Wade
/s/Donald A. Huebner Director September 20, 2007
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Donald A. Huebner
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EXHIBIT INDEX
Exhibit
Number Exhibit
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5.1 Opinion and Consent of Patton Boggs LLP
10.1 2007 Stock Incentive Plan (Incorporated by reference from
the Current Report on Form 8-K filed on August 8, 2007)
23.1 Consent of Hein & Associates LLP.
23.2 Consent of Patton Boggs LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page hereto)