As Filed with the Securities and Exchange Commission on December 23, 2003
Registration No.: 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
Registration Statement
Under
The Securities Act of 1933
P-COM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 77-0289371
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3175 S. Winchester Boulevard
Campbell, California 95008
(Address of Principal Executive Offices) (Zip Code)
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1995 STOCK OPTION/STOCK ISSUANCE PLAN
(Full Title of the Plan)
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Samuel Smookler
Chief Executive Officer
P-Com, Inc.
3175 S. Winchester Boulevard
Campbell, CA 95008
(Name and Address of Agent For Service)
(408) 866-3666
(Telephone Number, Including Area Code, for Agent For Service)
Copy to:
C. Thomas Hopkins, Esq.
Sheppard, Mullin, Richter & Hampton LLP
800 Anacapa Street
Santa Barbara, CA 93101
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Securities to be Amount to be Offering Price Per Aggregate Offering
Registered Registered (1) Share (2) Price (2) Amount of Registration Fee
--------------------------------------- ------------------- --------------------- --------------------- ---------------------------
Common Stock, par value $0.0001 per
share (3) 74,800,000 shares $0.14 $10,472,000 $ 963.42
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(1) In accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement shall be deemed to cover any
additional securities that may from time to time be offered or issued
to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of
1933, as amended, based upon the average of the bid and asked prices
per share of P-Com common stock, as reported on the OTC Bulletin Board
on December 22, 2003.
(3) Each share includes one right to purchase shares of P-Com's series A
junior participating preferred stock pursuant to P-Com's rights
agreement dated October 1, 1997, as amended.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed pursuant to General
Instruction E of Form S-8 for the purpose of registering 74,800,000 additional
shares of Common Stock of P-Com, Inc., a Delaware corporation (the
"Registrant"), issuable pursuant to the 1995 Stock Option/Stock Issuance Plan,
as amended through December 3, 2003 (the "Plan"). A Registration Statement on
Form S-8 (File No. 333-07773), registering an aggregate of 320,000 shares of
Common Stock (adjusted to reflect a two-for-one forward stock split effected on
September 26, 1997 and a one-for-five reverse stock split effected on June 27,
2002) issuable pursuant to the Plan, was filed with the Securities and Exchange
Commission on July 8, 1996 (the "Prior Registration Statement"). In accordance
with General Instruction E of Form S-8, the contents of the Prior Registration
Statement, including any amendments thereto or filings incorporated therein, are
incorporated by reference into this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference into this
registration statement:
(a) The Registrant's Annual Report on Form 10-K and Form 10-K/A
for the fiscal year ended December 31, 2002, filed with the
Securities and Exchange Commission on March 31, 2003 and
November 12, 2003, respectively;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since the end of the fiscal year
covered by the Annual Report on Form 10-K referred to in
paragraph (a) above.
(c) The description of the Registrant's Common Stock, which is
contained in the registration statement on Form 8-A filed with
the Securities and Exchange Commission on January 12, 1995
(No. 000-25356), as amended.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 into this registration
statement and to be a part hereof from the date of filing of such documents. Any
statement in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for the purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or deemed to be incorporated by
reference herein modifies or supersedes such 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 authorized, in the City of Campbell, State of California, on this 17th day
of December 23, 2003.
P-COM, INC.
By: /s/ Samuel Smookler
-----------------------------------
Samuel Smookler
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Samuel Smookler, the undersigned's
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for the undersigned and in his name, place and stead, in any and
all capacities (including the undersigned's capacity as a director and/or
officer of P-Com, Inc.), to sign any or all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact 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 for all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact, or his or her substitute, acting
alone, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title Date
------------------------------------------------------------------------------------------------------
/s/ Samuel Smookler Chief Executive Officer (Principal December 23, 2003
----------------------------- Executive Officer) and Director
Samuel Smookler
Acting Chief Financial Officer, Vice
/s/ Daniel W. Rumsey President and General Counsel (Principal
----------------------------- Financial Officer and Principal Accounting
Daniel W. Rumsey Officer) December 17, 2003
/s/ George P. Roberts Chairman of the Board December 23, 2003
-----------------------------
George P. Roberts
/s/ Frederick Fromm Director December 23, 2003
-----------------------------
Frederick Fromm
/s/ Brian T. Josling Director December 23, 2003
-----------------------------
Brian T. Josling
/s/ John A. Hawkins Director December 23, 2003
-----------------------------
John A. Hawkins
INDEX OF EXHIBITS
Exhibit
Number Description of Document
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4.1 (1) Form of Common Stock Certificate
4.2 (2) Amended and Restated Rights Agreement dated as of January 24, 2001
between Registrant and BankBoston, N.A.
4.3 (3) 1995 Stock Option/Stock Issuance Plan, as amended and restated
through July 17, 2002.
4.4 Amendment to 1995 Stock Option/Stock Issuance Plan (as amended and
restated through July 17, 2002), dated as of December 3, 2003.
4.5 (4) Employee Stock Purchase Plan, as amended
5.1 Opinion of Sheppard, Mullin, Richter & Hampton LLP
23.1 Consent of Sheppard, Mullin, Richter & Hampton LLP (included in
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page to this
Registration Statement)
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(1) Incorporated by reference to Exhibit 4.1 to the Registrant's Registration
Statement on Form S-1 (File No. 33-88492) declared effective with the
Securities and Exchange Commission on March 2, 1995.
(2) Incorporated by reference to Exhibit 4.10 to the Registrant's Form 8-A/A
filed with the Securities and Exchange Commission on May 7, 2001.
(3) Incorporated by reference to the Registrant's Proxy Statement, dated June
6, 2002, filed with the Securities and Exchange Commission on June 3, 2002.
(4) Incorporated by reference to Exhibit 99.1 to the Registrant's Registration
Statement on Form S-8 (File No. 333-63762) filed with the Securities and
Exchange Commission on June 25, 2001.