As Filed with the Securities and Exchange Commission on November 12, 2004
Registration No.: 333-
    

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
(State or other jurisdiction of
incorporation or organization)
77-0289371
(I.R.S. Employer
Identification No.)
   
3175 S. Winchester Boulevard
Campbell, California
(Address of Principal Executive Offices)
95008
(Zip Code)
 
 
2004 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
 
 

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)
 
 
CALCULATION OF REGISTRATION FEE
                           
Title of Each Class of Securities to be Registered
    
Amount to be Registered (1)
 
  
Proposed Maximum Offering Price Per Share (2)
 
  
Proposed Maximum Aggregate Offering Price (2)
 
  
Amount of Registration Fee
  
Common Stock, par value $0.0001 per share (3)
    
3,000,000 shares
  
$
0.55
 
$
1,650,000
 
$
209.06
 
 
   
 
(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 last reported sale price per share of P-Com common stock on the OTC Bulletin Board on November 11, 2004.

   
(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.

 
     
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 for the fiscal year ended December 31, 2003, filed with the Securities and Exchange Commission on March 30, 2004;
     
  (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.
   
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 102 of the Delaware General Corporation Law allows a corporation to include in its certificate of incorporation a provision that eliminates the personal liability of the directors of that corporation to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Registrant's certificate of incorporation contains a provision that eliminates the personal liability of its directors in accordance with Section 102 of the Delaware General Corporation Law.
 
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation's board of directors to grant, indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Article VII of the Registrant's bylaws provides for mandatory indemnification of its directors and permissible indemnification of its officers, employees and other agents to the maximum extent permitted under the Delaware General Corporation Law. The Registrant has entered into indemnification agreements with its officers and directors, which are intended to provide the Registrant's officers and directors with indemnification to the maximum extent permitted under the Delaware General Corporation Law.

 
     
 

Item 7.
Exemption from Registration Claimed.
   
 
Not applicable.
   
Item 8.
Exhibits.
   
 
See Index of Exhibits on page II-4.
   
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 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;
     
  (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.
     
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 Securities Exchange Act of 1934, as amended, 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.
 
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 indemnification provisions summarized in Item 6, 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.

 
     
 
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 12th day of November, 2004.
 
     
  P-COM, INC.
 
 		  
 		  
 
By:   /s/ Samuel Smookler
 
  Samual 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 Executive Officer)
 
November 12, 2004
Samuel Smookler
   and Director  
         
/s/ Daniel W. Rumsey
  
Acting Chief Financial Officer, Vice President and General Counsel (Principal Financial Officer and Principal
 
November 12, 2004
Daniel W. Rumsey
   Accounting Officer)    
         
/s/ George Rberts
  
Chairman of the Board
  
November 12, 2004
George P. Roberts
        
         
/s/ Frederick Fromm
 
Director
  
November 12, 2004
Frederick Fromm
        
         
/s/ Brian T. Josling
  
Director
  
November 12, 2004

 Brian T. Josling

        
         
/s/ John A. Hawkins 
  
Director
  
November 12, 2004
John A. Hawkins
        
         
/s/ R. Craig Roos
  
Director
  
November 12, 2004
R. Craig Roos
        
 
 
     
 
INDEX OF EXHIBITS
 
Exhibit
Number
  
Description of Document
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.
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 Aidman, Piser & Company, P.A.
23.3
  
Consent of PricewaterhouseCoopers LLP
24.1
  
Power of Attorney (included on the signature page to this Registration Statement)
99.1
  
P-Com, Inc. 2004 Equity Incentive Plan.
 
   
   
(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.