As filed with the Securities and Exchange Commission on February 27, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEWCOM, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-4485355
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
31166 Via Colinas
Westlake Village, California 91362
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(Address of Principal (Zip Code)
Executive Offices)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
COPY TO:
Jorge A. del Calvo, Esq.
Sultan W. Khan L. William Caraccio, Esq.
NewCom, Inc. Pillsbury Madison & Sutro LLP
31166 Via Colinas 2550 Hanover Street
Westlake Village, CA 91362 Palo Alto, CA 94305
(818) 597-3200 (650) 233-4500
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(Name, address and telephone number,
including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered per Share(1) Offering Price(1) Fee(2)
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<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $12.75 $12,750,000 $3,761.25
par value $0.001
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(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low sales prices of the Common Stock
on the Nasdaq National Market System.
(2) The Registration fee has been calculated pursuant to Rule 457(h) under the
Securities Act of 1933, as amended.
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The Registration Statement shall become effective upon filing in accordance with
Rule 462 under the Securities Act of 1933, as amended.
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</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act") and Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
- ------ -----------------------------------------------
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(a) The Registrant's Prospectus filed pursuant to rule 424(b)(4) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") on September 17, 1997;
(b) The Registrant's Form 10-Q for the quarter ending August 31,
1997;
(c) The Registrant's Form 10-Q for the quarter ending November 30,
1997;
(d) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated September
15, 1997.
Item 4. Description of Securities.
- ------ -------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
- ------ -----------------------------------------
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses
-2-
<PAGE>
incurred) arising under the Securities Act. The Registrant's Restated
Certificate of Incorporation and the Registrant's Bylaws provide for
indemnification of the Registrant's directors, officers, employees and other
agents to the extent and under the circumstances permitted by the Delaware
General Corporation Law. The Registrant has also entered into agreements with
its directors that will require the Registrant, among other things, to indemnify
them against certain liabilities that may arise by reason of their status or
service as directors to the fullest extent not prohibited by law.
Item 7. Exemption from Registration Claimed.
- ------ -----------------------------------
Not applicable.
Item 8. Exhibits.
- ------ --------
See Index to Exhibits to this Form S-8, which is incorporated herein by
reference.
Item 9. Undertakings.
- ------ ------------
(a) 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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) 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;
PROVIDED, HOWEVER, That paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3, Form
S-8 or Form F-3 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 section 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") that are incorporated by
reference in the registration statement.
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<PAGE>
(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.
(b) The undersigned Registrant hereby further undertakes that, for the
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 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.
(c) 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 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 the final adjudication of such issue.
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<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act, 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 Westlake Village, State of California, on February
24, 1998.
NEWCOM, INC.
By /s/ Sultan W. Khan
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Sultan W. Khan
President and Chief Executive Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Sultan W. Khan and Steven C. Veen, and
each of them his or her true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this registration statement,
and to file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or his or her
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
date indicated:
Name Title Date
---- ----- ----
/s/ Sultan W. Khan President, Chief Executive Officer February 24, 1998
- ------------------------ and Director (Principal Executive
Sultan W. Khan Officer) and Director
/s/ Asif M. Khan Executive Vice President and February 18, 1998
- ------------------------ Director
Asif M. Khan
<PAGE>
/s/ Steven C. Veen Vice President, Finance and Chief February 18, 1998
- ------------------------ Financial Officer (Principal
Steven C. Veen Financial and Accounting Officer)
/s/ Michael I. Froch Secretary and Director February 18, 1998
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Michael I. Froch
/s/ Zane R. Alsabery Director February 23, 1998
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Zane R. Alsabery
/s/ James M. Curran Director February 19, 1998
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James M. Curran
Director February __, 1998
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Saied Kashani
/s/ Gerald S. Papazian Director February 18, 1998
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Gerald S. Papazian
/s/ Richard A. Rappaport Director February 20, 1998
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Richard A. Rappaport
Director February __, 1998
- ------------------------
Alexander Remington
<PAGE>
INDEX TO EXHIBITS
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Exhibit
Number Exhibit
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4.1 Registrant's Amended and Restated Certificate of Incorporation,
incorporated by reference to Exhibit 3(i)(2) to Amendment No. 2 to
the Registrant's Form S-1, filed August 26, 1997.
4.2 Bylaws of the Registrant, as amended, incorporated by reference to
Exhibit 3(ii) to Amendment No. 2 to the Registrant's Form S-1, filed
August 26, 1997.
4.3 Registrant's 1997 Stock Incentive Plan, incorporated by reference to
Exhibit 10.6 to Amendment No. 2 to the Registrant's Form S-1, filed
August 26, 1997.
5.1 Opinion of Pillsbury Madison & Sutro LLP, filed herewith.
23.1 Consent of Pannell Kerr Forster, Certified Public Accountants, a
Professional Corporation, filed herewith.
23.2 Consent of Pillsbury Madison & Sutro LLP, included in Exhibit 5.1.
24.1 Power of Attorney, included on page 5
EXHIBIT 5.1
PILLSBURY MADISON & SUTRO LLP
2550 HANOVER STREET
PALO ALTO, CA 94305
Tel: (650) 233-4500
Fax: (650) 233-4545
February 27, 1998
NewCom, Inc.
31166 Via Colinas
Westlake Village, CA 91362
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
NewCom, Inc., a Delaware corporation (the "Company"), with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, relating to One Million (1,000,000) shares of the Company's Common
Stock issuable pursuant to the Company's 1997 Stock Incentive Plan (the "Plan"),
it is our opinion that such shares of the Common Stock of the Company, when
issued and sold in accordance with the Plan will be legally issued, fully paid
and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
EXHIBIT 23.1
CONSENT OF PANNELL KERR FORSTER
We consent to the incorporation by reference in this Registration
Statement of NewCom, Inc. on Form S-8 of our report dated June 11, 1997, which
appears on page F-2 of NewCom, Inc.'s prospectus dated September 15, 1997.
/s/ PANNELL KERR FORSTER
Pannell Kerr Forster
Los Angeles, California
February 25, 1998
