AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 16, 2000
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
NETTAXI.COM
(Exact Name of Registrant as Specified in Its Charter)
NEVADA 7370 82-0486102
(State or Other Jurisdiction of (Primary Standard (I.R.S. Employer
Incorporation or Organization) Industrial Classification
Identification Number) Code)
1696 DELL AVENUE
CAMPBELL, CALIFORNIA 95008
(408) 879-9880
(Address, Including Zip Code, and Telephone Number,
Including Area Code, of Registrant's Executive Offices)
1998 Stock Option Plan
1999 Stock Option Plan
(Full Title of the Plan)
ROBERT A. ROSITANO, JR.
DEAN ROSITANO
NETTAXI.COM
1696 DELL AVENUE
CAMPBELL, CALIFORNIA 95008
(408) 879-9880
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Co-Agents for Service)
-----------------------
COPY TO:
JAMES C. CHAPMAN, ESQ.
SILICON VALLEY LAW GROUP
152 NORTH THIRD STREET, SUITE 900
SAN JOSE, CALIFORNIA 95112
(408) 286-6100
<PAGE>
If any of the securities being registered on this Form are being offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT (1) PRICE FEE
- --------------------------------------------------------------------------------
COMMON STOCK,
$.001 PAR VALUE 3,000,000 SHARES $ 6.84 $20,520,000 $ 5,417.28
COMMON STOCK,
$.001 PAR VALUE 3,300,000 SHARES $ 6.84 $22,572,000 $ 5,959.01
TOTAL 6,300,000 SHARES $ 6.84 $43,092,000 $ 11,376.29
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the amount of the
registration fee pursuant to Rule 457(h).
--------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I are being
separately provided to the Registrant's employees, officers, directors and
consultants as specified by Rule 428(b)(1) promulgated under the Securities Act
of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are hereby incorporated by reference in this registration
statement:
(a) The Registrant's registration statement on form S-1 dated February 10,
2000, filed with the Securities and Exchange Commission as of
February 10, 2000 pursuant to Rule 429 of the Securities Act of 1933, as
amended.
(b) The description of Common Stock contained in the section of the
above-referenced registration statement entitled "Description of Capital
Stock".
II-1
<PAGE>
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered herein have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a 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 Registrant's Articles of Incorporation provide for indemnification of
the officers and directors of the Registrant to the full extent permitted by
law. The Nevada Private Corporation Law provides that a corporation may
indemnify any person who was or is a party or is threatened to be made a party,
by reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, to:
- - any action or suit by or in the right of the corporation against expenses,
including amounts paid in settlement and attorneys' fees, actually and
reasonably incurred, in connection with the defense or settlement believed
to be in, or not opposed to, the best interests of the corporation, except
that indemnification may not be made for any claim, issue or matter as to
which such a person has been adjudged by a court of competent jurisdiction
to be liable to the corporation or for amounts paid in settlement to the
corporation; and
- - any other action or suit or proceeding against expenses, including
attorneys' fees, judgments, fines and amounts paid in settlement, actually
and reasonably incurred, if he or she acted in good faith and in a manner
which he or she reasonably believed to be in, or not opposed to, reasonable
cause to believe his or her conduct was unlawful.
To the extent that a director, officer, employee or agent has been "successful
on the merits or otherwise" the corporation must indemnify such person. The
articles of incorporation or bylaws may provide that the expenses of officers
and directors incurred in defending any such action must be paid as incurred and
in advance of the final disposition of such action. The Nevada Private
Corporation Law also permits the corporation to purchase and maintain insurance
on behalf of the corporation's directors and officers against any liability
arising out of their status as such, whether or not the corporation would
have the power to indemnify him against such liability. These provisions may be
sufficiently broad to indemnify such persons for liabilities arising under the
Securities Act.
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<PAGE>
The Company intends to enter into indemnification agreements with its
directors and officers. These agreements provide, in general, that the
Company will indemnify such directors and officers for, and hold them harmless
from and against, any and all amounts paid in settlement or incurred by, or
assessed against, such directors and officers arising out of or in connection
with the service of such directors and officers as a director or officer of the
Company or its affiliates to the fullest extent permitted by Nevada law.
The Company maintains liability insurance for its directors and officers
covering, subject to exceptions, any actual or alleged negligent act, error,
omission, misstatement, misleading statement, neglect or breach of duty by such
directors or officers, individually or collectively, in the discharge of their
duties in their capacity as directors or officers of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as a part of this registration statement:
Exhibit
Number Description of Exhibit
- ------- ------------------------
*10.17 1998 Stock Option Plan of the Registrant.
*10.18 Form of Stock Option Agreement under the 1998 Stock Option Plan of
the Registrant.
4.4 1999 Stock Option Plan of the Registrant.
4.5 Form of Stock Option Agreement under the 1999 Stock Option Plan of the
Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP
24.1 Power of Attorney (see page II-5).
* Incorporated by reference to the exhibits filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-78129) which was
declared effective on August 13, 1999.
II-3
<PAGE>
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 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each 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 undertakes that, for 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 Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities 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 provisions described under Item 6
above, 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 of 1933 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 of 1933 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 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 Campbell, State of California, on March 16, 2000.
NETTAXI.COM
By: /s/ ROBERT A. ROSITANO, Jr.
-------------------------------
Robert A. Rositano, Jr.
Chief Executive Officer
POWER OF ATTORNEY
Each director and/or officer of the Registrant whose signature appears
below hereby appoints Robert A. Rositano and Glenn Goelz, and each of them
severally, as his attorney-in-fact, to sign in his name and behalf, in any and
all capacities stated below, and to file with the Commission any and all
amendments, including post-effective amendments, to this registration statement,
and the Registrant hereby also appoints each such person as its attorney-in-fact
with like authority to sign and file any such amendments in its name and behalf.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ ROBERT A. ROSITANO, JR Chief Executive Officer, March 16, 2000
- ---------------------------
Robert A. Rositano, Jr. Secretary and Director
(principal executive officer)
/s/ DEAN ROSITANO President and Director March 16, 2000
- ---------------------------
Dean Rositano.
/s/ GLENN GOELZ Vice President and Chief March 16, 2000
- ---------------------------
Glenn Goelz Financial Officer (principal
accounting officer)
/s/ ANDREW GARRONI Director March 16, 2000
- ---------------------------
Andrew Garroni
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<PAGE>
/s/ RONALD GOLDIE Director March 16, 2000
- -----------------------------
Ronald Goldie
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------- ------------------------
*10.17 1998 Stock Option Plan of the Registrant.
*10.18 Form of Stock Option Agreement under the 1998 Stock Option Plan of
the Registrant.
4.4 1999 Stock Option Plan of the Registrant.
4.5 Form of Stock Option Agreement under the 1999 Stock Option Plan of the
Registrant.
5.1 Opinion of Silicon Valley Law Group.
23.1 Consent of Silicon Valley Law Group (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP.
24.1 Power of Attorney (see page II-5).
* Incorporated by reference to the exhibits filed with the Registrant's
Registration Statement on Form S-1 (File No. 333-78129) which was
declared effective on August 13, 1999.
II-7
<PAGE>
EXHIBIT 4.4
NETTAXI.COM
1999 STOCK OPTION PLAN
1. PURPOSES OF THE PLAN
-----------------------
The purposes of this 1999 Stock Option Plan (the "Plan") of Nettaxi.com, a
Nevada corporation (the "Company") are to:
(i) Encourage selected officers, directors, key employees and
consultants to improve operations and increase profits of the Company or its
Affiliates;
(ii) Encourage selected officers and key employees to accept or
continue employment with the Company or its Affiliates; and
(iii) Increase the interest of selected officers, directors, key
employees and consultants in the Company's welfare through participation in the
growth in value of the common stock of the Company ("Common Stock").
Options granted under this Plan ("Options") may be "incentive stock
options" ("ISOs") intended to satisfy the requirements of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), or "nonqualified
options" ("NQOs").
2. ELIGIBLE PERSONS
-----------------
Every person who at the date of grant of an Option is a key employee of the
Company or of any Affiliate (as defined below) (including employees who are also
officers or directors of the Company or of any Affiliate) is eligible to receive
NQOs or ISOs under this Plan. The term "Affiliate" as used in the Plan means a
parent or subsidiary corporation as defined in the applicable provisions
(currently Sections 424(e) and (f), respectively) of the Code. Every person who
is a director of or consultant to the Company or any Affiliate at the date of
grant of an Option is eligible to receive NQOs under this Plan.
3. STOCK SUBJECT TO THIS PLAN
------------------------------
Subject to the provisions of Section 6.1.1 of the Plan, the maximum
aggregate number of shares of stock which may be granted pursuant to this Plan
is three million three hundred thousand (3,300,000) shares of Common Stock. The
shares unexercised shall become available again for grants under the Plan.
4. ADMINISTRATION
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1
<PAGE>
4.1 Option Committee. This Plan shall be administered by the Board of
-----------------
Directors of the Company (the "Board") or by a committee of at least two Board
members, one of which is the President, (hereinafter referred to as the
"Committee Chairman") to which administration of the Plan is delegated (in
either case, the "Option Committee"). No member of the Option Committee shall
be liable for any decision, action, or omission respecting the Plan, any
options, or any option shares.
4.2 Disinterested Administration. From and after such time as the
-----------------------------
Company registers a class of equity securities under Section 12 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), this Plan
shall be administered in accordance with the disinterested administrative
requirements of Rule 16b-3 promulgated by the Securities and Exchange Commission
("Rule 16b-3"), or any successor rule thereto.
4.3 Authority of the Option Committee. Subject to the other
-------------------------------------
provisions of this Plan, the Options Committee shall have the authority, in its
discretion: (i) to grant Options; (ii) to determine the fair market of the
Common Stock subject to Options; (iii) to determine the exercise price of
Options granted; (iv) to determine the persons to whom, and the time or times at
which, Options shall be granted, and the number of shares subject to each
Option; (v) to interpret this Plan; (vi) to prescribe, amend, and rescind rules
and regulations relating to this Plan; (vii) to determine the terms and
provisions of each Option granted (which need not be identical), including but
not limited to, the time or times at which Options shall be exercisable; (viii)
with the consent of the optionee, to modify or amend any Option; (ix) to defer
(with the consent of the optionee) or accelerate the exercise date or vesting of
any Option; (x) to authorize any person to execute on behalf of the Company any
instrument evidencing the grant of an Option; and (xi) to make all other
determinations deemed necessary or advisable for the administration of this
Plan. The Option Committee may delegate nondiscretionary administrative duties
to such employees of the Company as it deems proper.
4.4 Determinations Final. All questions of interpretation,
---------------------
implementation, and application of this Plan shall be determined by the Board or
the Option Committee. Such determinations shall be final and binding on all
persons.
5. GRANTING OF OPTIONS: OPTION AGREEMENT
-----------------------------------------
5.1 Ten-Year Term. No Options shall be granted under this Plan after
--------------
ten years from the date of adoption of this Plan by the Board.
5.2 Option Agreement. Each Option shall be evidenced by a written
-----------------
stock option agreement, in form satisfactory to the Company, executed by the
Company and the person to whom such Option is granted; provided, however, that
the failure by the Company, the optionee, or both to execute such an agreement
shall not invalidate the granting of any Option.
5.3 Designation as ISO or NQO. The agreement shall specify whether
-----------------------------
each Option it evidences is a NQO or an ISO. Notwithstanding designation of any
Option as an ISO or a NQO, if the aggregate fair market value of the shares
under Options designated as ISOs which would become exercisable for the first
time by any Optionee at a rate in excess of $100,000 in any calendar year (under
all plans of the Company), then unless otherwise provided in the stock option
agreement or by the Option Committee, such Options shall be NQOs to the extent
of the excess above $100,000. For purposes of this Section 5.3, Options shall
be taken into account in the order in which they were granted, and the fair
market value of the shares shall be determined as of the time the Option, with
respect to such shares, is granted.
2
<PAGE>
5.4 Grant to Prospective Employees. The Option Committee or the
---------------------------------
Committee Chairman may approve the grant of Options under this Plan to persons
who are expected to become employees of the Company, but who are not employees
at the date of approval. In such cases, the Option shall be deemed granted,
without further approval, on the date the optionee is first treated as an
employee for payroll purposes.
6. TERMS AND CONDITIONS OF OPTIONS
-----------------------------------
Each Option granted under this Plan shall be designated as a NQO or an ISO.
Each Option shall be subject to the terms and conditions set forth in Section
6.1. NQOs shall be also subject to the terms and conditions set forth in
Section 6.2, but not those set forth in Section 6.3. ISOs shall also be subject
to the terms and conditions set forth in Section 6.3, but not those set forth in
Section 6.2.
6.1 Terms and Conditions to Which Options Are Subject. Options granted
-------------------------------------------------
under this Plan shall, as provided in Section 6, be subject to the following
terms and conditions:
6.1.1 Changes in Capital Structure. The existence of outstanding
-----------------------------
Options shall not affect the Company's right to effect adjustments,
recapitalizations, reorganizations, or other changes in its or any other
corporation's capital structure or business, any merger or consolidation, any
issuance of bonds, debentures, preferred, or prior preference stock ahead of or
affecting Common Stock, the dissolution or liquidation of the Company's or any
other corporation's assets or business or any other corporate act whether
similar to the events described above or otherwise. Subject to Section 6.1.2,
if the stock of the Company is changed by reason of a stock split, reverse stock
split, stock dividend, recapitalization, or other event, or converted into or
exchanged for other securities as a result of a merger, consolidation,
reorganization, or other event, appropriate adjustments shall be made in (i) the
number and class of shares of stock subject to this Plan and each outstanding
Option; provided, however, that the Company shall not be required to issue
fractional shares as a result to any such adjustments. Each such adjustment
shall be subject to approval by the Option Committee in its sole discretion, and
may be made without regard to any resulting tax consequence to the optionee.
6.1.2 Corporate Transactions. In connection with (i) any merger,
-----------------------
consolidation, acquisition, separation, or reorganization in which more than
fifty percent (50%) of the shares of the Company outstanding immediately before
such event are converted into cash or into another security, (ii) any
dissolution or liquidation of the Company or any partial liquidation involving
fifty percent (50%) or more of the assets of the Company, (iii) any sale of more
than fifty percent (50%) of the Company's assets, or (iv) any like occurrence in
which the Company is involved, the Option Committee may, in its absolute
discretion, do one or more of the following upon ten days' prior written notice
to all optionees; (a) accelerate any vesting schedule to which an Option is
subject; (b) cancel Options upon payment to each optionee in cash, with respect
to each Option to the extent then exercisable, of any amount which, in the
3
<PAGE>
absolute discretion of the Option Committee, is determined to be equivalent to
any excess of the market value (at the effective time of such event) of the
consideration that such optionee would have received if the Option had been
exercised before the effective time over the exercise price of the Option; (c)
shorten the period during which such Options are exercisable (provided they
remain exercisable, to the extent otherwise exercisable, for at least ten days
after the date the notice is given); or (d) arrange that new option rights be
substituted for the option rights granted under this Plan, or that the Company's
obligations as to Options outstanding under this Plan be assumed, by an employer
corporation other than the Company or by a parent or subsidiary of such employer
corporation. The actions described in this Section 6.1.2 may be taken without
regard to any resulting tax consequence to the optionee.
6.1.3 Time of Option Exercise. Except as necessary to satisfy the
-----------------------
requirements of Section 422 of the Code and subject to Section 5, Options
granted under this Plan shall be exercisable at such times as are specified in
the written stock option agreement relating to such Option: provided, however,
that so long as the optionee is a director or officer, as those terms are used
in Section 16 of the Exchange Act, such Option may not be exercisable, in whole
or in part, at any time prior to the six-month anniversary of the date of the
Option grant, unless the Option Committee determines that the foregoing
provision is not necessary to comply with the provisions of Rule 16b-3 or that
Rule 16b-3 is not applicable to the Plan. No Option shall be exercisable,
however, until a written stock option agreement in form satisfactory to the
Company is executed by the Company and the optionee. The Option Committee, in
its absolute discretion, may later waive any limitations respecting the time at
which an Option or any portion of an Option first becomes exercisable.
6.1.4 Option Grant Date. Except as provided in Section 5.4 or as
------------------
otherwise specified by the Option Committee, the date of grant of an Option
under this Plan shall be the date as of which the Option Committee approves the
grant.
6.1.5 Nonassignability of Option Rights. No Option granted under
----------------------------------
this Plan shall be assignable or otherwise transferable by the optionee except
by will, by the laws of descent and distribution, or pursuant to a qualified
domestic relations order (limited in the case of an ISO, to a qualified domestic
relations order that effects a transfer of an ISO that is community property as
part of a division of community property). During the life of the optionee, an
Option shall be exercisable only by the optionee.
6.1.6 Payment. Except as provided below, payment in full shall be
-------
made for all stock purchased at the time written notice of exercise of an Option
is given to the Company, and proceeds of any payment shall constitute general
funds of the Company. Payment may be made in cash, by promissory note, by
delivery to the Company of shares of Common Stock owned by the optionee (duly
endorsed in favor of the Company or accompanied by a duly endorsed stock power),
or by any other form of consideration and method of payment to the extent
permitted under applicable law. Any shares delivered shall be valued as of the
date of exercise of the Option in the manner set forth in Section 6.1.12.
Optionees may not exercise Options by delivery of shares more frequently than at
six-month intervals.
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<PAGE>
6.1.7 Termination of Employment. Unless determined otherwise by
---------------------------
the Option Committee in its absolute discretion to the extent not already
expired or exercised, every Option granted under this Plan shall terminate at
the earlier of (a) the Expiration Date (as defined in Section 6.1.12) or (b)
three months after termination of employment with the Company or any Affiliate;
provided, that an Option shall be exercisable after the date of termination of
employment only to the extent exercisable on the date of termination; and
provided further, that if termination of employment is due to the optionee's
"disability" (as determined in accordance with Section 22(e)(3) of the Code),
the optionee, or the optionee's personal representative, may at any time within
one (1) year after the termination of employment (or such lesser period as is
specified in the option agreement but in no event after the Expiration Date of
the Option), exercise the option to the extent it was exercisable at the date of
termination; and provided further that if termination of employment is due to
the Optionee's death, the Optionee's estate or a legal representative thereof,
may at any time within and including six (6) months after the date of death of
Optionee (or such lesser period as is specified in the option agreement but in
no event after the Expiration Date of the Option), exercise the option to the
extent it was exercisable at the date of termination. Transfer of an optionee
from the Company to an Affiliate or vice versa, or from one Affiliate to
another, or a leave of absence due to sickness, military service, or other cause
duly approved by the Company, shall not be deemed a termination of employment
for purposes of this Plan. For the purpose of this Section 6.1.7, "employment"
means engagement with the Company or any Affiliate of the Company either as an
employee, as a director, or as a consultant.
6.1.8 Repurchase of Stock. In addition to the right of first
---------------------
refusal set forth in Section 6.1.9, at the time it grants Options under this
Plan, the Company may retain, for itself or others, rights to purchase the
shares acquired under the Option or impose other restrictions on the transfer of
such shares. The terms and conditions of any such rights or other restrictions
shall be set forth in the option agreement evidencing the Option.
6.1.9 Company's Right of First Refusal.
------------------------------------
(i) Company's Right; Notice. Stock delivered pursuant to the
exercise of any option granted under this Plan shall be subject to a right of
first refusal by the Company in the event that the holder of such shares
proposes to sell, pledge, or otherwise transfer such shares or any interest in
such shares to any person or entity. Any holder of shares purchased under this
Plan desiring to transfer such shares or any interest in such shares shall give
a written notice (the "Offer Notice") to the Company describing the proposed
transfer, including the number of shares proposed to be transferred, the
proposed transfer price and terms, and the name and address of the proposed
transferee. The Company's rights under this Section 6.1.9 shall be freely
assignable.
(ii) Exercise. Except as provided under any repurchase right
imposed under Section 6.1.8, if the Company fails to exercise its right of first
refusal within 20 days from the date on which the Company receives the Offer
Notice, the shareholder may, within the next 90 days, conclude a transfer to the
proposed transferee of the exact number of shares covered by that notice on
terms not more favorable to the transferee than those described in the notice.
Any subsequent proposed transfer shall again be subject to the Company's right
of first refusal. If the Company exercises its right of first refusal, the
shareholder shall endorse and deliver to the Company the stock certificates
representing the shares being repurchased. The Company shall pay the
shareholder the total repurchase price for the shares no later than the later of
(a) sixty (60) days after receipt of the Offer Notice and (b) the end of such
period for payment offered by the bona fide third-party transferor. The holder
of the shares being repurchased shall cease to have any rights with respect to
such shares immediately upon receipt of the repurchase price.
5
<PAGE>
(iii) Exceptions. Notwithstanding the foregoing provisions of
this Section 6.1.9, no notice of a proposed transfer shall be required and no
right of first refusal shall exist with respect to transfers, including sales,
to an optionee's children, grandchildren, or parents or to trusts, estates, or
custodianships of or for the account of an optionee or an optionee's children,
grandchildren, or parents; provided, however, that the transferee shall take
such shares subject to the provisions of Sections 6.1.8. and 6.1.9.
(iv) Termination of Company's Right. The right of first
refusal set forth in this Section 6.1.9 shall terminate upon the earlier of the
consummation of an underwritten public offering of the Company's Common Stock
registered under the Securities Act of 1933 or the date on which the Common
Stock is registered under Section 12 of the Exchange Act.
(v) No Limitation. Nothing in this Section 6.1.9 shall limit
the rights of the Company under any repurchase right imposed under Section
6.1.8.
(vi) Conflict. In the event that the terms of this paragraph
6.1.9 conflict or are inconsistent with any provision in the Bylaws of the
Company, the terms of the Bylaws shall control.
6.1.10 Withholding and Employment Taxes. At the time of exercise
---------------------------------
of an Option (or at such later time(s) as the Company may prescribe), the
optionee shall remit to the Company in cash all applicable (as determined by the
Company in its sole discretion) federal and state withholding taxes. The Option
Committee may, in the exercise of its sole discretion, permit an optionee to pay
some or all of such taxes by means of a promissory note on such terms as the
Option Committee deems appropriate. If authorized by the Option Committee in
its sole discretion, and if the Option has been held for six months or more, an
optionee may elect to have shares of Common Stock which are acquired upon
exercise of the Option withheld by the Company or to tender to the Company other
shares of Common Stock or other securities of the Company owned by the optionee
on the date of determination of the amount of tax to be withheld as a result of
the exercise of such Option (the "Tax Date") to pay the amount of tax that is
required by law to be withheld by the Company as a result of the exercise of
such Option, provided that the election satisfies the following requirements:
(i) the election shall be irrevocable, shall be made at least six
months before the Option exercise, and shall be subject to the disapproval of
the Option Committee at any time before consummation of the Option exercise; or
(ii) the election shall be made in advance to take effect in a
subsequent "window period" (as defined below) in which the Option is exercised,
and the Option Committee shall approve the election when it is made or at any
time thereafter up to consummation of the Option exercise; or
6
<PAGE>
(iii) the election shall be made in a window period and the
approval of the Option Committee shall be given after the election is made and
within the same window period, and the Option exercise shall be consummated
within such window period; or
(iv) shares or other previously owned securities shall be
tendered (but stock shall not be withheld) at any time up to the consummation of
the Option exercise (in which event, neither a prior irrevocable election nor
window period timing shall be required).
Notwithstanding the foregoing, clauses (ii) and (iii) shall not be
available until the Company has been subject to the reporting requirements of
the Securities Exchange Act of 1934 for at least one year.
A "window period" is the period beginning on the third business day
following the date of release for publication of quarterly or annual summary
statements of sales and earnings and ending on the 12th business day following
such date. Any securities so withheld or tendered shall be valued by the
Company as of the Tax Date.
6.1.11 Other Provisions. Each Option granted under this Plan may
-----------------
contain such other terms, provisions, and conditions not consistent with this
Plan as may be determined by the Option Committee, and each ISO granted under
this Plan shall include such provisions and conditions as are necessary to
qualify the Option as an "incentive stock option" within the meaning of Section
422 of the Code.
6.1.12 Determination of Value. For purposes of the Plan, the
------------------------
value of Common Stock or other securities of the Company shall be determined as
follows:
(i) If the stock of the Company is listed on any established
stock exchange or a national market system, including without limitation the
National Market System of the National Association of Securities Dealers
Automated Quotation System, its fair market value shall be the closing sales
price for such stock or the closing bid if no sale was reported, as quoted on
such system or exchange (or the largest such exchange) for the date the value is
to be determined (or if there is no sale for such date, then for the last
preceding business day on which there was at least one sale), as reported in the
Wall Street Journal.
- ---------------------
(ii) If the stock of the Company is regularly quoted by a
recognized securities dealer but selling prices are not reported, its fair
market value shall be the mean between the high bid and low asked prices for the
stock on the date the value is to be determined (or if there is no quoted price
for the date of grant, then for the last preceding business day on which there
was a quoted price).
(iii) If the stock of the Company is as described in Section
6.1.12(i) or (ii), but is restricted by law, contract, market conditions, or
otherwise as to salability or transferability, its fair market value shall be as
set forth in Section 6.1.12(i) or (ii), as appropriate, less, as determined by
the Option Committee, an appropriate discount, based on the nature and terms of
the restrictions.
7
<PAGE>
(iv) In the absence of an established market for the stock, the
fair market value thereof shall be determined by the Option Committee, with
reference to the Company's net worth, prospective earning power, dividend-paying
capacity, and other relevant factors, including the goodwill of the Company, the
economic outlook in the Company's industry, the Company's position in the
industry and its management, and the values of stock of other corporations in
the same or a similar line of business.
6.1.13 Option Term. No Option shall be exercisable more than ten
------------
years after the date of grant, or such lesser period of time as set forth in the
option agreement (the end of the maximum exercise period stated in the option
agreement is referred to in this Plan as the "Expiration Date"). No ISO granted
to any person who owns, directly or by attribution, stock possessing more than
ten percent of the total combined voting power of all classes of stock of the
Company of any Affiliate ( a "Ten Percent Stockholder") shall be exercisable
more than five years after the date of grant.
6.1.14 Exercise Price. The exercise price of any Option granted
---------------
to any Ten Percent Stockholder shall in no event be less than 110 percent of the
fair market value (determined in accordance with Section 6.1.12) of the stock
covered by the Option at the time the Option is granted.
6.1.15 Compliance with Securities Laws. The Company shall not be
--------------------------------
obligated to offer or sell any shares upon exercise of an Option unless the
shares are at that time effectively registered or exempt from registration under
the federal securities laws and the offer and sale of the shares are otherwise
in compliance with all applicable state and local securities laws. The Company
shall have no obligation to register the shares under the federal securities
laws or take whatever other steps may be necessary to enable the shares to be
offered and sold under federal or other securities laws. Upon exercising all or
any portion of an Option, an optionee may be required to furnish representations
or undertakings deemed appropriate by the Company to enable the offer and sale
of the Option shares or subsequent transfers of any interest in the shares to
comply with applicable securities laws. Stock certificates evidencing shares
acquired upon exercise of options shall bear any legend required by, or useful
for purposes of compliance with, applicable securities laws, this Plan, or the
option agreement evidencing the Option.
6.2 Terms and Conditions to Which Only NQOs Are Subject. Options
----------------------------------------------------
granted under this Plan which are designated as NQOs shall be subject to the
following additional terms and conditions:
6.2.1 Exercise Price. Except as set forth in Section 6.1.14,
--------------
the exercise price of a NQO shall not be less than 85 percent of the fair market
value (determined in accordance with Section 6.1.12) of the stock subject to the
Option on the date of grant.
6.3 Terms and Conditions to Which Only ISOs Are Subject. Options
----------------------------------------------------
granted under this Plan which are designated as ISOs shall be subject to the
following additional terms and conditions:
8
<PAGE>
6.3.1 Exercise Price. Except as set forth in Section 6.1.14,
--------------
the exercise price of an ISO shall be determined in accordance with the
applicable provisions of the Code and shall in no event be less than the fair
market value (determined in accordance with Section 6.1.12) of the stock covered
by the Option at the time the Option is granted.
6.3.2 Disqualifying Dispositions. If stock acquired upon
---------------------------
exercise of an ISO is disposed of in a "disqualifying disposition" within the
meaning of Section 422 of the Code, the holder of the stock immediately before
the disposition shall notify the Company in writing of the date and terms of the
disposition and comply with any other requirements imposed by the Company in
order to enable the Company to secure any related income tax deduction to which
it is entitled.
7. MANNER OF EXERCISE
--------------------
7.1 Notice of Exercise. An optionee wishing to exercise an Option
------------------
shall give written notice to the Company at its principal executive office, to
the attention of the officer of the Company designated by the Option Committee,
accompanied by payment of the exercise price as provided in Section 6.1.6. The
date the Company receives written notice of an exercise hereunder accompanied by
payment of the exercise price and, if required, by payment of any federal or
state withholding or employment taxes required to be withheld by virtue of
exercise of the Option will be considered as the date such Option was exercised.
7.2 Issuance of Certificates. Promptly after receipt of written
--------------------------
notice of exercise of an Option, the Company shall, without stock issue or
transfer taxes to the optionee or other person entitled to exercise the Option,
deliver to the optionee or such other person a certificate or certificates for
the requisite number of shares of stock. Unless the Company specifies
otherwise, an optionee or transferee of an optionee shall not have any
privileges as a shareholder with respect to any stock covered by the Option
until the date of issuance of a stock certificate. Subject to Section 6.1.1
hereof, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date the certificates are delivered.
8. EMPLOYMENT RELATIONSHIP
------------------------
Nothing in this Plan or any Option granted hereunder shall interfere with
or limit in any way the right of the Company or of any of its Affiliates to
terminate any optionee's employment at any time, nor confer upon any optionee
any right to continue in the employ of the Company or any of its Affiliates.
9. AMENDMENTS TO PLAN
--------------------
The Board may amend this Plan at any time. Without the consent of an
optionee, no amendment may affect outstanding Options except to conform this
Plan and ISOs granted under this Plan to federal or other tax laws relating to
incentive stock options. No amendment shall require shareholder approval unless
shareholder approval is required to preserve incentive stock option treatment
for tax purposes or the Board otherwise concludes that shareholder approval is
advisable.
9
<PAGE>
10. SHAREHOLDER APPROVAL: TERM
----------------------------
The Board of Directors of the Company adopted this Plan as of ___________
and the Company's shareholders approved this Plan as of __________. This Plan
shall terminate ten years after initial adoption by the Board unless terminated
earlier by the Board. The Board may terminate this Plan without shareholder
approval. No Options shall be granted after termination of this Plan, but
termination shall not affect rights and obligations under then-outstanding
Options.
10
<PAGE>
EXHIBIT 4.5
NETTAXI.COM
STOCK OPTION AGREEMENT
[FORM]
This Nettaxi.com Stock Option Agreement (the "Agreement"), by and between
Nettaxi.com, a Nevada corporation (the "Company"), and _______________
("Optionee"), is made effective as of this day of _____________, 199__.
RECITALS
1. Pursuant to the Nettaxi.com 1999 Stock Option Plan (the "Plan"), the
Board of Directors of the Company (the "Board") has authorized the grant of an
option to purchase common stock of the Company ("Common Stock") to Optionee,
effective on the date indicated above, thereby allowing Optionee to acquire a
proprietary interest in the Company in order that Optionee will have further
incentive for continuing his or her employment by, and increasing his or her
efforts on behalf of, the Company or an Affiliate of the Company.
2. The Company desires to issue a stock option to Optionee and
Optionee desires to accept such stock option on the terms and conditions set
forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. Option Grant. The Company hereby grants to the Optionee, as a
-------------
separate incentive and not in lieu of any fees or other compensation for his or
her services, an option to purchase, on the terms and conditions hereinafter set
forth, all or any part of an aggregate of ____________________
(________________) shares of authorized but unissued shares of Common Stock, at
the Purchase Price set forth in paragraph 2 of this Agreement.
2. Purchase Price. The Purchase Price per share (the "Option Price")
---------------
shall be $__________, which is not less than ___________________ percent (____%)
of the fair market value per share of Common Stock on the date hereof. The
Option Price shall be payable in the manner provided in paragraph 9 below.
3. Adjustment. The number and class of shares specified in paragraph 1
----------
above, and the Option Price, are subject to appropriate adjustment in the event
of certain changes in the capital structure of the Company such as stock splits,
recapitalizations and other events which alter the per share value of Common
Stock or the rights of holders thereof. In connection with (i) any merger,
consolidation, acquisition, separation, or reorganization in which more than
fifty percent (50%) of the shares of the Company outstanding immediately before
1
<PAGE>
such event are converted into cash or into another security, (ii) any
dissolution or liquidation of the Company or any partial liquidation involving
fifty percent (50%) or more of the assets of the Company, (iii) any sale of more
than fifty percent (50%) of the Company's assets, or (iv) any like occurrence in
which the Company is involved, the Company may, in its absolute discretion, do
one or more of the following upon ten days' prior written notice to the
Optionee: (a) accelerate any vesting schedule to which this option is subject;
(b) cancel this option upon payment to the Optionee in cash, to the extent this
option is then exercisable, of any amount which, in the absolute discretion of
the Company, is determined to be equivalent to any excess of the market value
(at the effective time of such event) of the consideration that the Optionee
would have received if this option had been exercised before the effective time
over the Option Price; (c) shorten the period during which this option is
exercisable (provided that this option shall remain exercisable, to the extent
otherwise exercisable, for at least ten days after the date the notice is
given); or (d) arrange that new option rights be substituted for the option
rights granted under this option, or that the Company's obligations under this
option be assumed, by an employer corporation other than the Company or by a
parent or subsidiary of such employer corporation. The actions described in
this paragraph 3 may be taken without regard to any resulting tax consequence to
the Optionee.
4. Option Exercise. Commencing on the date of this Agreement the right
---------------
to exercise this option will accrue as to __________ ( ) of the number of
shares subject to this option. Thereafter, the right to exercise the remainder
of this option will accrue in ______ (__) equal quarterly installments. Shares
entitled to be, but not, purchased as of any accrual date may be purchased at
any subsequent time, subject to paragraphs 5 and 6 below. The number of shares
which may be purchased as of any such anniversary date will be rounded up to the
nearest whole number. No partial exercise of the option may be for an aggregate
exercise price of less than One Hundred Dollars ($100). In order to exercise
any part of this option, Optionee must agree to be bound by the Company's
Shareholder Buy-Sell Agreement, if any, existing at the time of the exercise of
this Option.
5. Termination of Option. The right to exercise this option will lapse
---------------------
in four (4) equal installments of the number of shares subject to this option on
each of the sixth, seventh, eighth, and ninth anniversaries of the effective
date of this Agreement. Notwithstanding any other provision of this Agreement,
this option may not be exercised after, and will completely expire on, the close
of business on the date ten (10) years after the effective date of this
Agreement, unless terminated sooner pursuant to paragraph 6 below.
2
<PAGE>
6. Termination of Employment. In the event of termination of
---------------------------
Optionee's employment with the Company for any reason, this option will
terminate three (3) months after the date of the termination of Optionee's
employment, unless terminated earlier pursuant to paragraph 5 above. However,
(i) if termination is due to the death of Optionee, the Optionee's estate or a
legal representative thereof, may at any time within and including six (6)
months after the date of death of Optionee, exercise the option to the extent it
was exercisable at the date of termination; or (ii) if termination is due to
Optionee's "disability" (as determined in accordance with Section 22(e)(3) of
the Internal Revenue Code), Optionee may, at any time, within one (1) year
following the date of this Agreement, exercise the option to the extent it was
exercisable at the date of termination. If the Optionee or his or her legal
representative fails to exercise the option within the time periods specified in
this paragraph 6, the option shall expire. The Optionee or his or her legal
representative may, on or before the close of business on the earlier of the
date for exercise set forth in paragraph 5 or the dates specified in paragraph 4
above, exercise the option only to the extent Optionee could have exercised the
option on the date of such termination of employment pursuant to paragraphs 4
and 5 above.
7. Repurchase Option of Company. Pursuant to Section 6.1.8 of the
-------------------------------
Plan, in the event of termination of Optionee's employment with the Company for
any reason, the Company shall have an option to repurchase ("Repurchase Option")
any Common Stock owned by the Optionee or his or her heirs, legal
representatives, successors or assigns at the time of termination, or acquired
thereafter by any of them at any time, by way of an option granted hereunder.
The Repurchase Option must be exercised, if at all, by the Company within ninety
(90) days after the date of termination upon notice ("Repurchase Notice") to the
Optionee or his or her heirs, legal representatives, successors or assigns, in
conformance with paragraph 13 below. The purchase price to be paid for the
shares subject to the Repurchase Option shall be One Hundred Fifteen Percent
(115%) of their book value. For the purposes of this paragraph, the Company's
book value shall be determined in accordance with generally accepted accounting
principles applied on a basis consistent with those previously applied by the
Company. The book value shall be fixed under this paragraph by the accountants
of the Company and shall be computed as of the last day of the Company's fiscal
quarter most recently preceding the Repurchase Notice. Any shares issued
pursuant to an exercise of an option hereunder shall contain the following
legend condition in addition to any other applicable legend condition:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO REPURCHASE
PROVISIONS IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY.
8. Transferability. This option will be exercisable during Optionee's
---------------
lifetime only by Optionee. Except as otherwise set forth in the Plan, this
option will be non-transferable.
9. Method of Exercise. Subject to paragraph 10 below, this option may
-------------------
be exercised by the person then entitled to do so as to any shares which may
then be purchased by delivering to the Company an exercise notice in the form
attached hereto as Exhibit A and:
----------
3
<PAGE>
(a) full payment of the Option Price thereof (and the amount of
any tax the Company is required by law to withhold by reason of such exercise)
in the form of:
(i) cash or readily available funds; or
(ii) delivery of a promissory note in the amount of the
aggregate Option Price of the exercised shares (the "Note") in a form acceptable
to the Company in its sole discretion together with delivery by the Optionee of
a Security Agreement in a form acceptable to the Company in its sole discretion;
or
(iii) a written request to Net Exercise, as defined in this
paragraph 9(a)(iii). In lieu of exercising this Option via cash payment or
promissory note, Optionee may elect to receive shares equal to the value of this
Warrant (or portion thereof being canceled) by surrender of this Option at the
principal office of the Company together with notice of election to exercise by
means of a Net Exercise in which event the Company shall issue to Optionee a
number of shares of the Company computed using the following formula:
X = Y (A-B)
-------
A
where X is the number of shares of stock to be issued to Optionee; Y is the
number of shares purchasable under this Option; A is the fair market value of
the stock determ8ined in accordance with Section 6.1.12 of the Plan; and B is
the Option Price as adjusted to the date of such calculation.
(b) payment of any withholding or employment taxes, if any;
(c) an executed Shareholders Buy-Sell Agreement, if any, binding
the Company's shareholders and restricting the transfer of their shares,
executed appropriately by the Optionee and his or her spouse, if any.
The Company will issue a certificate representing the shares so purchased within
a reasonable time after its receipt of such notice of exercise, payment of the
Option Price and withholding or employment taxes, and execution of any existing
Shareholders Buy-Sell Agreement, with appropriate certificate legends.
10. Securities Laws. The issuance of shares of Common Stock upon the
----------------
exercise of the option will be subject to compliance by the Company and the
person exercising the option with all applicable requirements of federal and
state securities and other laws relating thereto. No person may exercise the
option at any time when, in the opinion of counsel to the Company, such exercise
is permitted under applicable federal or state securities laws. Nothing herein
will be construed to require the Company to register or qualify any securities
under applicable federal or state securities laws, or take any action to secure
an exemption from such registration and qualification for the issuance of any
securities upon the exercise of this option.
4
<PAGE>
11. No Rights as Shareholder. Neither Optionee nor any person claiming
------------------------
under or through Optionee will be, or have any of the rights or privileges of, a
shareholder of the Company in respect of any of the shares issuable upon the
exercise of the option, unless and until this option is properly and lawfully
exercised.
12. No Right to Continued Employment. Nothing in this Agreement will
----------------------------------
be construed as granting Optionee any right to continued employment. EXCEPT AS
THE COMPANY AND OPTIONEE WILL HAVE OTHERWISE AGREED IN WRITING, OPTIONEE'S
EMPLOYMENT WILL BE TERMINABLE BY THE COMPANY, AT WILL, WITH OR WITHOUT CAUSE FOR
ANY REASON OR NO REASON. Except as otherwise provided in the Plan, the Board in
its sole discretion will determine whether any leave of absence or interruption
in service (including an interruption during military service) will be deemed a
termination of employment for the purpose of this Agreement.
13. Notices. Any notice to be given to the Company under the terms of
-------
this Agreement will be addressed to the Company, in care of its Secretary, at
its executive offices, or at such other address as the Company may hereafter
designate in writing. Any notice to be given to Optionee will be in writing and
delivered or mailed by registered or certified mail, return receipt requested,
postage prepaid, addressed to Optionee at the address set forth beneath
Optionee's signature in writing. Any such notice will be deemed to have been
duly given where deposited in a United States post office in compliance with the
foregoing.
14. Non-Transferrable. Except as otherwise provided in the Plan or in
-----------------
this Agreement, the option herein granted and the rights and privileges
conferred hereby will not be transferred, assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise). Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option, or of
any right or upon any attempted sale under any execution, attachment or similar
process upon the rights and privileges conferred hereby, this option will
immediately become null and void.
15. Successor. Subject to the limitation on the transferability of the
---------
option contained herein, this Agreement will be binding upon and inure to the
benefit of the heirs, legal representatives, successors and assigns of the
parties hereto.
16. California Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of California.
17. Type of Option. The option granted in this Agreement:
----------------
[ ] Is intended to be an Incentive Stock Option ("ISO") within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended.
[ ] Is a non-qualified Option and is not intended to be an ISO.
18. Plan Provisions Incorporated by Reference. A copy of the Plan is
-------------------------------------------
attached hereto as Exhibit "A" and incorporated herein by this reference. In
the case of conflict between any provision in this Agreement and any provision
in the Plan or a Shareholder Buy-Sell Agreement, if any, the terms of this
Agreement shall prevail. In the case of conflict between any provision in the
Plan and a provision in a Shareholders Buy-Sell Agreement, if any, the terms of
the Plan shall prevail.
5
<PAGE>
19. Term. Capitalized terms used herein, except as otherwise
----
indicated, shall have the same meaning as those terms have under the Plan.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year written below.
COMPANY: NETTAXI.COM
By:
Its:______________________________
OPTIONEE:
(print name)
(signature)
Address:
6
<PAGE>
------
EXHIBIT A
EXERCISE NOTICE
NETTAXI.COM
1696 Dell Avenue
Campbell, California 95008
Attention: Secretary
1. Exercise of Option. Effective as of today, ____________________,
the undersigned ("Purchaser") hereby elects to purchase ____________________
shares (the "Shares") of the Common Stock of Nettaxi.com (the "Company") under
and pursuant to the Nettaxi.com 1999 Stock Option Plan (the "Plan") and the
Stock Option Agreement dated _______________ (the "Option Agreement"). The
purchase price for the Shares shall be $_______, as required by the Option
Agreement.
2. Delivery of Payment. Purchaser herewith delivers to the Company the
full purchase price for the Shares in the form of:
[ ] Cash or readily available funds;
[ ] Promissory Note and Security Agreement;
[ ] Formal Request to Net Exercise;
3. Representations of Purchaser. Purchaser acknowledges that Purchaser
has received, read and understood the Plan and the Option Agreement and agrees
to abide by and be bound by their terms and conditions. Additionally, in
connection with the purchase of the Shares, Purchaser represents to the Company
the following:
(a) Investment Intent. Purchaser is purchasing the Shares solely
------------------
for his own account for investment. Purchaser has no present intention to resell
or distribute the Shares or any portion thereof. The entire legal and beneficial
interest of the Shares is being purchased, and will be held, for Purchaser's
account only, and neither in whole or in part for any other person.
(b) Information Concerning Company. Purchaser has significant prior
------------------------------
experience and knowledge of the affairs of the Company. Purchaser is aware of
the Company's business and financial condition and has acquired sufficient
information about the Company to make an informed and acknowledgeable decision
to purchase the Shares.
(c) Economic Risk. Purchaser realizes that the purchase of the
--------------
Shares will be a highly speculative investment and involves a high degree of
risk. Purchaser is able, without impairing his financial condition, to hold the
Shares for an indefinite period of time and to suffer a complete loss of
Purchaser's investment.
(d) Restriction of Transfer. Purchaser understands that the Shares
------------------------
must be held indefinitely unless they are subsequently registered under the
Securities Act or an exemption from such registration is available. Purchaser
understands that the certificate evidencing the Shares will be imprinted with a
legend that prohibits the transfer of the Securities unless they are registered
or unless the Company receives an opinion of counsel reasonably satisfactory to
the Company that such registration is not required.
7
<PAGE>
(e) Sales Under Rule 144. Purchaser is aware of the adoption of
-----------------------
rule 144 by the Securities and Exchange Commission (the "Commission")
promulgated under the Securities Act, which permits limited public resale of
securities acquired in a non-public offering subject to the satisfaction of
certain conditions, including among other things: (i) the availability of
certain current public information about the Company, (ii) the resale occurring
not less than one (1) year after the party has purchased and paid for the
securities to be sold, (iii) the sale being made through a broker in an
unsolicited "broker's transaction" or in transactions directly with a "market
maker," and (iv) the amount of securities sold during any three-month period not
exceeding specified limitations (generally 1% of the total shares outstanding).
(f) Limitation on Rule 144 Sales. Purchaser further acknowledges
-------------------------------
and understands that the Company is not now and at the time he wishes to sell
the Shares may not be satisfying the current public information requirement of
Rule 144, and, in such case, Purchaser could be precluded from selling the
Shares under Rule 144 even if the one-year minimum holding period has been
satisfied.
(g) Sales Not Under Rule 144. Purchaser further acknowledges that, if
-------------------------
all or the requirements of Rule 144 are not met, then registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, although Rule 144 is not exclusive, the
staff of the Commission has expressed its opinion (i) that persons proposing to
sell private placement securities other than in a registered offering and other
than pursuant to Rule 144 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers or
sales, and (ii) that such persons and the brokers who participate in the
transactions do so at their own risk.
4. Rights as Stockholder. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the Shares, no right to vote or receive dividends or
any other rights as a stockholder shall exist with respect to the Option,
notwithstanding the exercise of the Option. The Shares so acquired shall be
issued to the Optionee as soon as practicable after exercise of the Option. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date of issuance, except as provided in the Plan.
5. Tax Consultation. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. Entire Agreement; Governing Law. The Plan and Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the Option
Agreement constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Purchaser with respect to the subject matter
hereof, and may not be modified adversely to the Purchaser's interest except by
means of a writing signed by the Company and Purchaser. This agreement is
governed by the law of the State of California.
8
<PAGE>
Submitted by: Accepted by:
PURCHASER: NETTAXI.COM
________________________________ By ______________________
Signature
________________________________ Its________________________
Print Name
Address: ______________________
Date
Received:_______________________
________________________________
9
<PAGE>
EXHIBIT 5.1
[LETTERHEAD]
March 16, 2000
Nettaxi.com
1696 Dell Avenue
Campbell, California 95008
Re: Nettaxi.com
Registration Statement on Form S-8
6,300,000 shares of Common Stock issuable upon
exercise of options granted under 1998 Stock Option Plan and 1999
-----------------------------------------------------------------
Stock Option Plan
-----------------
Gentlepersons:
We are counsel to Nettaxi.com, a Nevada corporation (the "Company"). We
have assisted the Company in its preparation of a Registration Statement on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Securities Act"), registering 6,300,000 shares of common stock, $.001 par
value, of the Company (the "Common Stock") issuable upon exercise of options
granted and to be granted under the Company's 1998 Stock Option Plan and 1999
Stock Option Plan (collectively, the "Plans").
In rendering this opinion, we have considered such questions of law and
examined such statutes and regulations, corporate records, certificates and
other documents and have made such other examinations, searches and
investigations as we have considered necessary. In such examinations we have
assumed the genuineness of all signatures and the authenticity of all documents
submitted to us as originals and the conformity to original documents of all
documents submitted to us as certified or as photocopies or telecopies. We have
not made an independent examination of the laws of any jurisdiction other than
California and the federal laws of the United States, and we do not express or
imply any opinions in respect to the laws of any other jurisdiction. The
opinions expressed herein are based on legislation and regulations in effect on
the date hereof.
Based on and subject to the foregoing, we are of the opinion that the
Common Stock, when issued pursuant to the exercise of options under the Plans
and the purchase price therefor has been paid, will be duly and validly issued,
fully paid and nonassessable shares of Common Stock.
1
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We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. This consent is not to be construed as an admission
that we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Securities Act.
Very truly yours,
/s/ SILICON VALLEY LAW GROUP
SILICON VALLEY LAW GROUP
2
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EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Nettaxi.com
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 16, 1999 (except for matters
discussed in Note 2 for which the date is June 5, 1999, and Note 15 for which
the date is February 2, 2000) relating to the consolidated financial statements
of Nettaxi.com appearing in the Company's Registration Statement No. 333-30074
on Form S-1 filed with the Securities and Exchange Comminssion on February 10,
2000. Our report contains an explanatory paragraph regarding the Company's
ability to continue as a going concern.
BDO SEIDMAN, LLP
San Jose, California
March 16, 2000
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