<PAGE> 1
As filed with the Securities and Exchange Commission on April 21, 2000
File No. 333- Commission file number: .
- -------------------------- ------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BROADBAND WIRELESS INTERNATIONAL CORPORATION
--------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
Nevada 7370 75-1441442
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<S> <C> <C>
(State or Other Jurisdiction (Primary Standard (Employer
of Incorporation Industrial Classification Identification
or Organization) Code) Number)
</TABLE>
1301 AVENUE M, PO BOX 31, CISCO, TEXAS 76437
--------------------------------------------------
(Address, Including Zip Code, of Principal Executive Offices)
2000 STOCK OPTION PLAN OF BROADBAND WIRELESS INTERNATIONAL CORPORATION
----------------------------------------------------------------------
(Full Title of the Plan)
IVAN W. WEBB
BROADBAND WIRELESS INTERNATIONAL CORPORATION
1301 AVENUE M, PO BOX 31
CISCO, TEXAS 76437
(254) 442-3968
----------------------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to Amount of Shares to Offering Price Per Aggregate Offering Amount of
be Registered be Registered Share (1) Price Registration Fee
---------------------- ------------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock,
par value 8,000,000 $2.30 $18,400,000 $4,858
$0.0125
==================================================================================================================
</TABLE>
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(1) Bona fide estimate of maximum offering price is solely for the purpose of
calculating the registration fee pursuant to Rule 457(h) of the Securities
Act of 1933. It is based on the average bid and asked price of the
Registrant's common stock as of April 19, 2000, a date within five business
days before the date of filing of this registration statement.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the plan described herein.
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.
CROSS-REFERENCE SHEET PURSUANT TO RULE 404(a) UNDER THE SECURITIES ACT OF 1933
Cross-reference between items of Part I of Form S-8 and the Section 10(a)
Prospectus that will be delivered to each employee, officer, director, and
consultant who participates in the Plan.
<TABLE>
<CAPTION>
Registration Statement Item Numbers and Headings Prospectus Heading
- ------------------------------------------------ ------------------
<S> <C> <C>
ITEM 1. PLAN INFORMATION Section 10(a) Prospectus
ITEM 2. REGISTRANT INFORMATION AND Section 10(a) Prospectus
EMPLOYEE PLAN ANNUAL INFORMATION
</TABLE>
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 herein by reference:
A. The Registrant's latest annual report on Form 10-KSB for the fiscal
year ended March 31, 1999.
B. All other reports filed by the Registrant with the Securities and
Exchange Commission 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 ended March 31, 1999.
C. The description and specimen certificate of the Registrant's common
stock contained in the Registrant's registration statement under the
Exchange Act dated June 13, 1977, including any amendment or report
filed for the purpose of updating such description.
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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 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.
The common stock being registered pursuant to this registration statement is
part of a class of securities registered under Section 12(g) of the Exchange
Act. A description of the securities is contained in the registration statement
under the Exchange Act, and is incorporated herein by reference. However, the
description of the securities is modified as set forth below.
The Registrant has the authority to issue an aggregate of 250,000,000
shares of common stock having a par value of $0.0125 per share.
o All stock when issued shall be fully paid and non-assessable.
o No holder of shares of common stock of the Registrant shall be
entitled, as such, to any pre-emptive or preferential right to
subscribe to any unissued stock or any other securities which
the Registrant may now or thereafter be authorized to issue.
The Board of Directors may, however, in its discretion by
resolution determine that any unissued securities of the
Registrant shall be offered for subscription solely to the
holders of any class or classes of such stock, in such
proportions based on stock ownership as said Board in its
discretion may determine.
o Each share of common stock shall be entitled to one vote at
stockholders' meetings, either in person or by proxy.
Cumulative voting in elections of directors and all other
matters brought before stockholders' meetings, whether they be
annual or special, is not permitted. Therefore, the holders of
a majority of the common stock may elect all of the
Registrant's directors standing for office.
o The Board of Directors may cause any stock issued by the
Registrant to be issued subject to such lawful restrictions,
qualifications, limitations, or special rights as they deem
fit; provided, however, that such special restrictions,
qualifications, limitations or special rights shall be
conspicuously noted on the certificate evidencing ownership of
such stock.
o The common stock may be issued and sold from time to time for
such consideration as may be fixed by the Board of Directors,
provided that the considerations so fixed is not less than par
value.
o Subject to the limitations and relative rights herein
expressed, all holders of shares of the common stock will,
subject to the requirements of any applicable law, be entitled
equally (on a per share basis) to all usual rights and
privileges of shareholders.
o Dividends on common stock, if and when declared by the Board
of Directors, will be subject to preferential rights of any
outstanding shares of preferred stock.
The aggregate number of shares of preferred stock which the Registrant has the
authority to issue is 25,000,000 shares which preferred stock will have a par
value of $0.10 per share. The preferred stock may be divided and issued from
time to time in one or more series as may be designated by the Board of
Directors,
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each such series to be distinctly titled and to consist of the number of shares
designated by the Board. All shares of any one series of preferred stock as
designated by the Board will be alike in every particular, except that shares
of any one series issued at different times may differ as to the date from which
dividends thereon, if any, will accrue or be cumulative, or both. The
designations or preferences, qualifications, limitations, restrictions, and
other optional, special, participating or relative rights, if any, of the
preferred stock and each series thereof, which may be designated by the Board,
including but without limiting the generality of the foregoing, will include
the following:
o the voting rights and powers, if any, of such preferred stock
and each series thereof;
o the rates and times at which, and the terms and conditions on
which dividends, if any, on each series of preferred stock
will be paid, and any dividend preferences or rights of
cumulating;
o the rights, if any, of holders of preferred stock, and each
series thereof, to convert the same into, or exchange the same
for, shares of other classes or series of classes, of capital
stock of the Registrant and the terms and conditions for each
conversion or exchange, including provisions for adjustments
of conversion or exchange prices or rates in such events as
the Board shall determine;
o the redemption rights, if any, of the Registrant and the
holders of the preferred stock and each series thereof and the
terms at which, and the terms and conditions on which,
preferred stock, and each series thereof, may be redeemed;
o the rights and preferences, if any, of the holders of
preferred stock, and each series thereof, upon the voluntary
or involuntary liquidation, dissolution or winding up of the
Registrant; and
o a stated value per share for dividend and conversion purposes.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
No expert is named as preparing or certifying all or part of the registration
statement to which this prospectus pertains, and no counsel which is named in
this prospectus as having given an opinion on the validity of the securities
being offered hereby was hired on a contingent basis or has or is to receive, in
connection with this offering, a substantial interest, direct or indirect, in
the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation or Bylaws will be amended to 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:
o A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, except an action by
or in the right of the corporation, by reason of the fact that
he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with the action, suit
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<PAGE> 5
or proceeding if he acted in good faith and in a manner which
he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any
criminal action or proceeding, he had reasonable cause to
believe that his conduct was unlawful.
o A corporation may indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request
of the corporation as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or
other enterprise against expenses, including amounts paid in
settlement and attorneys' fees actually and reasonably
incurred by him in connection with the defense or settlement
of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation. Indemnification may not
be made of any claim, issue or matter as to which such a
person has been adjudged by a court of competent jurisdiction,
after exhaustion of all appeals therefrom, to be liable to the
corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in
which the action or suit was brought or other court of
competent jurisdiction determines upon application that in
view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses
as the court deems proper.
o To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in the
above subsections, or in defense of any claim, issue or matter
therein, the corporation shall indemnify him against expenses,
including attorneys' fees, actually and reasonably incurred by
him in connection with the defense.
The Nevada Private Corporation Law also permits the Registrant to purchase and
maintain insurance on behalf of its directors and officers against any liability
arising out of their status as such, whether or not the Registrant 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 of 1933.
The Registrant intends to enter into indemnification agreements with its
directors and officers. These agreements provide, in general, that the
Registrant 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 Registrant or its affiliates to the fullest extent permitted by
Nevada law.
The Registrant will maintain 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 Registrant.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No restricted securities are being reoffered or resold pursuant to this
registration statement.
ITEM 8. EXHIBITS.
The exhibits that are attached to this Form S-8 are listed in the Index to
Exhibits, which is found on page 8.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which it offers or sells
securities, 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;
(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 together,
represent a fundamental change in the information set
forth in the registration statement; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that paragraphs (a)(i) and (a)(ii) of this
section do not apply if the registration statement is on Form
S-1 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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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 of 1933, 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.
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
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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 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 1933 Act
and will be governed by the final adjudication of such issue.
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 Cisco, State of Texas, on April 21, 2000.
BROADBAND WIRELESS INTERNATIONAL CORPORATION
By: /s/ Ivan W. Webb .
----------------------------------------------
Ivan W. Webb, President
POWER OF ATTORNEY
The undersigned directors and officers of BroadBand Wireless International
Corporation hereby constitute and appoint Ivan W. Webb, with full power to act
without the other and with full power of substitution and resubstitution, our
true and lawful attorney-in-fact with full power to execute in our name and
behalf in the capacities indicated below any and all amendments (including
post-effective amendments and amendments thereto) to this Registration Statement
under the Securities Act of 1933 and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission and hereby ratify and confirm each and every act and thing that such
attorney-in-fact, or his substitute, shall lawfully do or cause to be done by
virtue thereof.
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.
/s/ Ivan W. Webb April 21, 2000
- --------------------------------------- --------------
Ivan W. Webb, President and Director Date
/s/ Tommy K. Hill April 21, 2000
- --------------------------------------- --------------
Tommy K. Hill, Chief Financial Officer Date
/s/ Gifford Dieterle April 21, 2000
- --------------------------------------- --------------
Gifford Dieterle, Director Date
/s/ Howard B. Siegel April 21, 2000
- --------------------------------------- --------------
Howard B. Siegel, Director Date
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit No. Location Description of Exhibit
----------- -------- ----------------------
<S> <C> <C>
4.1 Filed Herewith 2000 Stock Option Plan of
the Company
5.1 Filed Herewith Opinion of Counsel
23.1 Filed Herewith Consent of Jackson &
Rhodes P.C.
23.2 Contained in Opinion Consent of Counsel
Filed as Exhibit 5.1
to this Registration
Statement
</TABLE>
<PAGE> 1
EXHIBIT 4.1
2000 STOCK OPTION PLAN OF
BROADBAND WIRELESS INTERNATIONAL CORPORATION
1.
PURPOSES OF THE PLAN
The purposes of this 2000 Stock Option Plan of BroadBand Wireless
International Corporation (the "Plan"), a Nevada corporation (the "Company"),
are to:
o encourage selected officers, directors, employees and
consultants to improve operations and increase profits of the
Company or its Affiliates;
o encourage selected officers and employees to accept or
continue employment with the Company or its Affiliates; and
o increase the interest of selected officers, directors,
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") are nonqualified options
which are not intended to satisfy the requirements for incentive stock options
under Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2.
ELIGIBLE PERSONS
Every person who at the date of grant of an Option is an employee or
director of or consultant to the Company or any Affiliate (as defined below)
including employees who are also officers or directors of the Company or of any
Affiliate is eligible to receive Options under this Plan in the discretion of
the "Option Committee" as that term is defined in Section 4.1; provided that
bona fide services shall be rendered by consultants and advisors and such
services shall not be in connection with the offer or sale of securities in a
capital-raising transaction or directly or indirectly related to the promotion
or maintenance of a market in the Company's securities. The term "Affiliate" as
used in this Plan means a parent or subsidiary corporation as defined in the
applicable provisions (currently Sections 424(e) and (f), respectively) of the
Code.
3.
STOCK SUBJECT TO THIS PLAN
Subject to the provisions of Section 6.1.1 of this Plan, the maximum
aggregate number of shares of stock which may be granted pursuant to this Plan
is eight million (8,000,000) shares of Common Stock. Any shares unexercised
shall become available again for grants under this Plan.
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4.
ADMINISTRATION
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 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 AUTHORITY OF THE OPTION COMMITTEE. Subject to the other provisions
of this Plan, the Option 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 related
to this Plan to such employees of the Company as it deems proper.
4.3 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.
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5.
GRANTING OF OPTIONS: OPTION AGREEMENT
5.1 FIVE-YEAR TERM. No Options shall be granted under this Plan after
five (5) years from the date of adoption of this Plan by the Board. This Plan
may be terminated earlier by the Option Committee in its discretion except with
respect to any Options then outstanding under this Plan.
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 GRANT TO PROSPECTIVE EMPLOYEES. The Option Committee may approve
the grant of Options under this Plan to persons who are expected to become
employees or directors of or consultants to the Company, but who are not
employees, directors or consultants at the date of approval. In such cases, the
Option shall be deemed granted, without further approval, on the date the
optionee first performs services for the Company.
6.
TERMS AND CONDITIONS OF OPTIONS
6.1 TERMS AND CONDITIONS TO WHICH OPTIONS ARE SUBJECT. Options granted
under this Plan shall 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 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 of 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 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 50% or more of the assets of
the Company;
(iii) any sale of more than 50% of the Company's assets; or
(iv) any like occurrence in which the Company is involved;
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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 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
of such event 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, but not less then 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. Subject to Section 6.1.11, 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,
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. 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 5.3 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. During the life of the optionee, an Option shall be
exercisable only by the optionee; provided that if the optionee is subject to a
"disability" (as determined in accordance with Section 22(e)(3) of the Code),
the optionee, or the optionee's personal representative, may exercise the Option
in accordance with the provisions of the stock option agreement; and provided
further that in the event of the optionee's death, the optionee's estate or a
legal representative thereof, may exercise the Option in accordance with the
provisions of the stock option agreement.
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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. Except as provided otherwise in the stock option agreement,
payment shall be made in cash or by certified or personal check payable to the
Company.
6.1.7 TERMINATION OF OPTION. 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:
(i) five (5) years after the date of grant, or such lesser period
of time as set forth in the stock option agreement; or
(ii) 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. 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 as an employee, and does not include
a director or a consultant.
6.1.8 WITHHOLDING TAXES. At the time of the grant or exercise (as
applicable) of an Option (or at such later time(s) as the Company may
prescribe), the optionee shall remit to the Company in cash all (as determined
by the Company in its sole discretion) federal and state withholding taxes that
are required by law to be withheld by the Company as a result of the grant or
exercise of such Option.
6.1.9 OTHER PROVISIONS. Each Option granted under this Plan may contain
such other terms, provisions, and conditions as may be determined by the Option
Committee.
6.1.10 DETERMINATION OF VALUE. For purposes of this Plan, the value of
Common Stock 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
6.1.10(i) or (ii), but is restricted by law, contract, market
conditions, or otherwise as to salability or
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transferability, its fair market value shall be as set forth
in Section 6.1.10(i) or (ii), as appropriate, less, as
determined by the Option Committee, an appropriate discount,
based on the nature and terms of the restrictions.
(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.
6.1.11 EXERCISE PRICE. The exercise price of an Option shall be
determined in the discretion of the Option Committee, but shall not be less than
the par value of the Common Stock.
6.1.12 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 securities laws. The Company shall have
no obligation to register the shares under the federal or state securities laws
or take whatever other steps may be necessary to enable the shares to be offered
and sold under federal or state 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 which the Company
determines is required or useful for compliance with, applicable securities
laws, this Plan, or the stock option agreement evidencing the Option.
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 of an Option accompanied
by payment of the exercise price and, if required, by payment of any federal or
state withholding taxes required to be withheld by virtue of exercise of the
Option will be considered as the date the 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, no adjustment shall
be made for dividends or other rights for which the record date is prior to the
date the certificates are delivered.
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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 relationship with the Company at any time, whether the
optionee is an employee, a director or a consultant 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
Options granted under this Plan to securities or tax laws relating to such
Options. No amendment shall require shareholder approval unless the Board
concludes that shareholder approval is advisable.
10.
BOARD APPROVAL: TERM
The Board of Directors of the Company adopted this Plan as of November 29, 2000
as amended on April 17, 2000. This Plan shall terminate five (5) 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.
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EXHIBIT 5.1
[KUNZMAN & BOLLINGER, INC. LETTERHEAD]
April 20, 2000
BroadBand Wireless International Corporation
1301 Avenue M
PO Box 31
Cisco, Texas 76437
Re: BroadBand Wireless International Corporation
Registration Statement on Form S-8
8,000,000 shares of Common Stock issuable upon exercise of
options granted under 2000 Stock Option Plan of BroadBand
Wireless International Corporation.
Gentlepersons:
We are counsel to BroadBand Wireless International Corporation, 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 8,000,000
shares of common stock, $0.0125 par value, of the Company (the "Common Stock")
issuable upon exercise of options to be granted under the Company's 2000 Stock
Option Plan (the "Plan").
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. The opinions
expressed herein are based on legislation and regulations in effect on the date
hereof.
<PAGE> 2
KUNZMAN & BOLLINGER
Securities and Exchange Commission
___________, 2000
Page 2 of 2
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 Plan and the
purchase price therefore has been paid, will be duly and validly issued, fully
paid and nonassessable shares of Common Stock.
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,
KUNZMAN & BOLLINGER, INC.
<PAGE> 1
EXHIBIT 23.1
Consent of Jackson & Rhodes, P.C.
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Broadband Wireless International Corporation
We consent to the incorporation by reference in the registration statement on
Form S-8 of Broadband Wireless International Corporation our report dated
August 27, 1999, relating to the consolidated balance sheets of Broadband
Wireless International Corporation (formerly Black Giant Oil Company) as of
March 31, 1999 and 1998 and the related statements of operations, changes in
stockholders' equity and cash flows for the years then ended, which report
appears in the annual report on Form 10-KSB of Black Giant Oil Company for the
year ended March 31, 1999.
/s/ JACKSON & RHODES P.C.
Dallas, Texas
April 21, 2000
