As filed with the Securities and Exchange Commission on April 28, 2005
File No. 333-
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 (I.R.S. Employer
of Incorporation or Identification No.)
Organization)
10601 West 48th Ave.
Wheat Ridge, Colorado 80033
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(Address of Principal Executive Offices) Zip Code
ARC Wireless Solutions, Inc.
401(k) Plan
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(Full Title of the Plan)
Randall P. Marx
Chairman and Chief Executive Officer
ARC Wireless Solutions, Inc.
10601 West 48th Ave.
Wheat Ridge, Colorado 80033
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(Name and Address of Agent For Service)
(303) 421-4063
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(Telephone Number, Including Area Code, of Agent For Service)
Copies to
Alan L. Talesnick
Patton Boggs, LLP
1660 Lincoln Street, Suite 1900
Denver, Colorado 80264
(303) 830-1776
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered(1) Registered(2) per Share(3) Offering Price(3) Fee
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Common Stock, par value $0.0005
per share 416,000 $ .125 $ 52,000 $6.12
(1) Pursuant to Rule 416(c), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the ARC
Wireless Solutions, Inc. 401(k) Plan.
(2) Pursuant to Rule 416(a), also being registered hereby are an indeterminate
number of additional shares as may be issued pursuant to the anti-dilution
provisions of the plan.
(3) In accordance with Rule 457(h)(1), the offering price was computed upon the
basis of the average of the high and low sale prices of the shares reported
on the OTC Bulletin Board on April 26, 2005 which was $.125.
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TABLE OF CONTENTS
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PART I INFORMATION REQUIRED IN A SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
ITEM 4. DESCRIPTION OF SECURITIES
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
ITEM 8. EXHIBITS
ITEM 9. UNDERTAKINGS
SIGNATURES
EXHIBIT INDEX
EX-4.2 401(k) Plan
EX-5.1 Opinion/Consent of Patton Boggs LLP
EX-23.2 Consent of Hein & Associates LLP
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PART I
INFORMATION REQUIRED IN
A SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION (1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION (1)
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(1) Information required by Part I to be contained in a Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
the Note to Part I of the Form S-8 and has been or will be sent or given to
participants in the Plans as specified in Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by ARC Wireless Solutions,
Inc., a corporation organized under the laws of the State of Utah (the "Company"
or the "Registrant"), with the Securities and Exchange Commission (the
"Commission") pursuant to the Securities
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Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference herein and shall be deemed to be a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004, filed with the Commission pursuant to Section 13(a)
under the Exchange Act (Exchange Act File No. 000-18122)
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2004 filed with the Commission pursuant to Section 13(a)
under the Exchange Act (Exchange Act File No. 000-18122)
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 2004 filed with the Commission pursuant to Section 13(a) under the
Exchange Act (Exchange Act File No. 000-18122)
(d) The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2004 filed with the Commission pursuant to Section 13(a)
under the Exchange Act (Exchange Act File No. 000-18122)
(e) The Company's Current Report on Form 8-K filed with the Commission on
August 5, 2003 (Exchange Act File No. 000-18122).
(f) The description of the Company's common stock, par value $.0005 per
share (the "Common Stock") included in the Company's Post-Effective
Amendment No. 1 to Registration Statement on Form SB-2 (Registration
No. 333-100293) filed by the Company with the Commission on October
17, 2002, including any amendment or report filed with the Commission
for the purpose of updating that description.
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All documents 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 shares of common stock covered by this Registration
Statement have been sold or which deregisters all such shares remaining unsold,
shall be deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such documents.
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 Utah Business Corporation Act provides for indemnification by a
corporation of costs incurred by directors, employees, and agents in connection
with an action, suit, or proceeding brought by reason of their position as a
director, employee, or agent. The person being indemnified must have acted in
good faith and in a manner that the person reasonably believed to be in or not
opposed to the best interests of the corporation.
Under our Articles Of Incorporation and Bylaws, we are required to
indemnify our directors, officers, and other representatives for costs incurred
by each of them in connection with any action, suit, or proceeding brought by
reason of their position as a director, officer, or representative.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index, which is incorporated herein by reference.
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (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 post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth 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 and 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 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
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(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 (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or 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 section 15(d) of the Exchange Act that
are incorporated by reference in 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.
4. 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 section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 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.
5. Insofar as indemnification for liabilities arising under the
Securities Act 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
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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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
authorized, in the City of Wheat Ridge, State of Colorado, on April 28, 2005.
ARC WIRELESS SOLUTIONS, INC.
By: /s/ Randall P. Marx
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Randall P. Marx, Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors and
officers of ARC Wireless Solutions, Inc. hereby constitutes and appoints Randall
P. Marx and Monty R. Lamirato, and each of them, severally, as his true and
lawful attorney-in-fact and agent, for him and in his name, place and stead, in
any and all capacities, with full power to act alone, to sign any and all
amendments to this Registration Statement, and to file each such amendment to
this registration statement with all exhibits thereto, and any and all documents
in connection therewith, with the Securities and Exchange Commission, hereby
granting unto said attorney-in-fact and agent full power and authority to do and
perform any and all acts and things 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 said
attorney-in-fact and agent 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 below by the following persons in the
capacities and on the date indicated.
Signatures Title Date
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/s/ Sigmund A. Balaban Director April 28, 2005
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Sigmund A. Balaban
/s/ Donald A. Huebner Director April 28, 2005
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Donald A. Huebner
/s/ Randall P. Marx Director April 28, 2005
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Randall P. Marx
/s/ Gregory E. Raskin Director April 28, 2005
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Gregory E. Raskin
/s/ Monty R. Lamirato Chief Financial Officer April 28, 2005
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Monty R. Lamirato
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EXHIBIT INDEX
Exhibit
Number Description
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3.1 Amended And Restated Articles Of Incorporation dated October 11,
2000 are incorporated by reference to Exhibit 3.1d to the
Company's Annual Report on Form 10-KSB for the year ended
December 31, 2000
3.2 Bylaws of the Company as amended and restated on March 25, 1998
are incorporated by reference to Exhibit 3.2 to the Company's
Annual Report on Form 10-KSB for the year ended December 31, 1997
4.1 Specimen Common Stock Certificate is incorporated by reference to
the Company's Form S-18 Registration Statement dated December 1,
1987 (File No. 33-18854-D)
4.2 ARC Wireless Solutions, Inc. 401(k) Plan is incorporated by
reference to Exhibit 4.2 as filed with the Company's Form S-8
Registration Statement dated September 2, 2003
5.1 Opinion of Patton Boggs LLP concerning the legality of the
securities being registered
23.1 Consent of Patton Boggs LLP (included in Opinion in Exhibit 5.1)
23.2 Consent of Hein & Associates LLP
24.1 Power of Attorney (included in Part II of Registration Statement)
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