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As filed with the Securities and Exchange Commission on November 2, 2000
Registration No. 333-
--------------------------------------------------------------------------------
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 (IRS Employer Identification No.)
of incorporation or organization)
3175 S. Winchester Boulevard
Campbell, California 95008
(Address of principal executive offices) (Zip Code)
______________________
P-COM, INC.
1995 STOCK OPTION/STOCK ISSUANCE PLAN (As Amended and Restated Through November
30, 2000)
(Full title of the Plan)
______________________
George P. Roberts
Chairman of the Board and Chief Executive Officer
P-COM, INC.
3175 S. Winchester Boulevard, Campbell, California 95008
(Name and address of agent for service)
(408) 866-3666
(Telephone number, including area code, of agent for service)
______________________
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Amount to be Offering Price Aggregate Offering Amount of
Title of Securities to be Registered Registered(1) per Share(2) Price(2) Registration Fee
------------------------------------------------- ---------------- ------------------- ------------------ ------------------
<S> <C> <C> <C> <C>
P-Com, Inc. 1995 Stock Option/Stock Issuance Plan
As Amended and Restated Through November 30, 2000)
-------------------------------------------------
Common Stock, $0.0001 par value 714,834 shares $4.5469 $3,250,278.72 $858.08
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the P-Com, Inc. 1995 Stock
Option/Stock Issuance Plan (As Amended and Restated Through November 30,
2000) by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the Registrant's receipt of
consideration which results in an increase in the number of the outstanding
shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling prices per share of Registrant's Common Stock on October
26, 2000, as reported on the Nasdaq National Market.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
---------------------------------------
P-Com, Inc. (the "Registrant") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K and Form 10-K/A for the
fiscal year ended December 31, 1999, filed with the Commission on
April 5, 2000, pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "1934 Act"), and as amended on August 24,
2000;
(b) The Registrant's Annual Report on Form 10-K and Forms 10-K/A for the
fiscal year ended December 31, 1998, filed with the Commission on
April 15, 1999, and as amended on April 21, 1999, June 14, 1999,
September 27, 1999, and April 5, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000, filed with the Commission on August 14, 2000;
(d) The Registrant's Quarterly Report on Form 10-Q and Form 10-Q/A for the
fiscal quarter ended March 31, 2000, filed with the Commission on May
15, 2000, and as amended on August 24, 2000;
(e) The Registrant's Quarterly Report on Form 10-Q and Forms 10-Q/A for
the fiscal quarter ended June 30, 1999, filed with the Commission on
August 16, 1999, and as amended on September 24, 1999, May 11, 2000,
and June 20, 2000;
(f) The Registrant's Quarterly Report on Form 10-Q and Forms 10-Q/A for
the fiscal quarter ended March 31, 1999, filed with the Commission on
May 17, 1999, and as amended on June 14, 1999, September 24, 1999, and
May 11, 2000;
(g) The Registrant's Quarterly Report on Form 10-Q and Forms 10-Q/A for
the fiscal quarter ended September 30, 1998, filed with the Commission
on November, 13, 1998, and as amended on April 30, 1999, June 14,
1999, September 24, 1999, and May 11, 2000;
(h) The Registrant's Quarterly Report on Form 10-Q and Forms 10-Q/A for
the fiscal quarter ended June 30, 1998, filed with the Commission on
August 14, 1998, and as amended on April 30, 1999, June 14, 1999,
September 24, 1999, and May 11, 2000;
(i) The Registrant's Current Reports on Form 8-K, filed with the
Commission on January 6, 2000, January 25, 2000, and August 16, 2000;
and
(j) The Registrant's Registration Statement No. 0-25356 on Form 8-A, filed
with the Commission on January 12, 1995 pursuant to Section 12 of the
1934 Act in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which de-
registers 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
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of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
The Registrant's Certificate of Incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law
provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except for
liability for (i) any breach of their duty of loyalty to the corporation or its
stockholders, (ii) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) unlawful payments of
dividends or unlawful stock repurchases or redemptions as provided in Section
174 of the Delaware General Corporation Law, or (iv) any transaction from which
the director derives an improper personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and may indemnify its officers, employees and other agents to the
fullest extent permitted by law. The Registrant believes that indemnification
under its Bylaws covers at least negligence and gross negligence on the part of
an indemnified party and advancement of the expenses of the defense of any
action or proceeding arising out of such party's status or service as a
director, officer, employee or other agent of the Company upon an undertaking by
such party to repay such advances if it is ultimately determined that such party
is not entitled to indemnification.
The Registrant has entered into separate indemnification agreements with
each of its directors and officers. These agreements require the Registrant,
among other things, to indemnify such director or officer against expenses
(including attorneys' fees), judgments, fines and settlements (collectively,
"Liabilities") paid by such individual in connection with any action, suit or
proceeding arising out of such individual's status or service as a director or
officer of the Registrant (other than Liabilities arising from willful
misconduct or conduct that is knowingly fraudulent or deliberately dishonest)
and to advance expenses incurred by such individual in connection with any
proceeding against such individual with respect to which such individual may be
entitled to indemnification by the Registrant.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not Applicable.
Item 8. Exhibits
--------
Exhibit Number Exhibit
-------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 0-25356 on Form
8-A, including the exhibits thereto, which are incorporated
herein by reference pursuant to Item 3(j).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
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23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 P-Com, Inc. 1995 Stock Option/Stock Issuance Plan (As Amended
and Restated Through November 30, 2000) (Assuming Stockholder
Approval at the 2000 Annual Meeting).
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 1933 Act, (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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; and (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 Registrant's 1995
Stock Option/Stock Issuance Plan (As Amended and Restated Through November 30,
2000).
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into this 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 or
otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 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, 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 second day
of November, 2000.
P-COM, INC.
By: /s/ George P. Roberts
--------------------------
George P. Roberts
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of P-Com, Inc., a Delaware
corporation, do hereby constitute and appoint George P. Roberts the lawful
attorney-in-fact and agent with full power and authority to do any and all acts
and things and to execute any and all instruments which said attorney and agent
determines may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorney and agent shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ George P. Roberts Chairman of the Board and November 2, 2000
-------------------------- Chief Executive Officer
George P. Roberts (Principal Executive Officer)
/s/ Leighton J. Stephenson Chief Financial Officer and Vice November 2, 2000
-------------------------- President, Finance and Administration
Leighton J. Stephenson (Principal Financial and Accounting
Officer)
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/s/ James J. Sobczak Director November 2, 2000
-----------------------
James J. Sobczak
/s/ Brian T. Josling Director November 2, 2000
-----------------------
Brian T. Josling
/s/ John A. Hawkins Director November 2, 2000
-----------------------
John A. Hawkins
/s/ M. Bernard Puckett Director November 2, 2000
-----------------------
M. Bernard Puckett
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EXHIBIT INDEX
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Exhibit Number Exhibit
-------------- -------
4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statement No. 0-25356 on
Form 8-A, including the exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(j).
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 P-Com, Inc. 1995 Stock Option/Stock Issuance Plan (As Amended
and Restated Through November 30, 2000) (Assuming Stockholder
Approval at the 2000 Annual Meeting).
