<PAGE>
As filed with the Securities and Exchange Commission on October 24, 1997
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
NETVANTAGE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-4324525
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
201 CONTINENTAL BOULEVARD, SUITE 201
EL SEGUNDO, CALIFORNIA 90245
(Address of principal executive offices) (Zip code)
WARRANTS TO PURCHASE SHARES OF CLASS A COMMON STOCK
(Full title of plans)
------------------
MR. THOMAS G. IWANSKI
CHIEF FINANCIAL OFFICER, VICE PRESIDENT OF
FINANCE AND SECRETARY
NETVANTAGE, INC.
201 CONTINENTAL BOULEVARD, SUITE 201
EL SEGUNDO, CALIFORNIA 90245
(Name and address of agent for service)
(310) 726-4130
(Telephone number, including area code, of agent for service)
------------------
With a Copy to:
VICTOR A. HEBERT, ESQ.
HELLER EHRMAN WHITE & MCAULIFFE
601 SOUTH FIGUEROA STREET, 40TH FLOOR
LOS ANGELES, CALIFORNIA 90017
(213) 689-0200
------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to Offering Price Aggregate Registration
to be Registered be Registered(1) Per Share(2) Offering Price(2) Fee(2)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CLASS A COMMON STOCK,
$.001 PAR VALUE PER SHARE 30,000 $5.8125 $174,375 $53
========================================================================================================================
</TABLE>
(1) Includes 15,000 shares for each Warrant to Purchase Shares of Class A Common
Stock (the "Warrants"). Also includes an indeterminate number of additional
shares that may be issued to adjust the number of shares to be issued
pursuant to such Warrants as the result of any future stock split, stock
dividend or similar adjustment of the Registrant's outstanding common stock.
(2) In accordance with Rule 457(h)(1), based upon the stated exercise price of
each of the Warrants.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- ------ ---------------------------------------
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of the filing of this Registration Statement and
prior to the filing of a post-effective amendment to this Registration Statement
which indicates that all securities offered under this Registration Statement
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of the filing of such documents.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are also incorporated herein by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed pursuant to the Exchange Act;
2. The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1997, filed pursuant to the Exchange Act; and
3. The Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 1997, filed pursuant to the Exchange Act.
The description of the Class A Common Stock contained in Registrant's
Registration Statement on Form 8-A filed with the Commission on May 3, 1995,
under the Exchange Act is also incorporated by reference in this Registration
Statement.
Item 4. Description of Securities.
- ------ -------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
- ------ --------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
- ------ -----------------------------------------
Pursuant to Section 102(b)(7) of the Delaware General Corporation Law
(the "DGCL"), the Registrant's Restated Certificate of Incorporation contains a
provision which eliminates the personal liability of its directors to the
Registrant and its stockholders for monetary damages resulting from breaches of
their fiduciary duty as directors, other than liability for breaches of the duty
of loyalty, acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
II-1
<PAGE>
violations under Section 174 of the DGCL or any transaction from which the
director derived an improper personal benefit.
Section 145 of the DGCL permits, and under certain circumstances
requires, Registrant to indemnify its directors, officers, employees and agents
subject to certain conditions and limitations. Registrant's Bylaws contain
provisions to indemnify its directors and officers to the full extent permitted
by applicable law. In addition, Registrant maintains officers' and directors'
liability insurance which insures against certain liabilities that its officers
and directors may incur in such capacities and has entered into indemnification
agreements with such officers and directors.
Item 7. Exemption from Registration Claimed.
- ------ -----------------------------------
Not Applicable.
Item 8. Exhibits.
- ------ --------
4.1 Amended and Restated Common Stock Purchase Warrant Issued by the
Registrant to Stephen R. Rizzone.
4.2 Amended and Restated Common Stock Purchase Warrant Issued by the
Registrant to Stephen R. Rizzone.
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe (included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power of Attorney of Certain Officers and Directors (included on
Page II-4)
Item 9. Undertakings.
- ------ ------------
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
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 in
the aggregate, represent a fundamental change in the information
set forth in the Registration Statement;
II-2
<PAGE>
(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)(1)(i) and (a)(1)(ii) do
-------- -------
not apply if the registration statement is on Form S-3 or Form S-8
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
(2) 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.
(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 foregoing
provisions, 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 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 Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in El Segundo, California, on October 24, 1997.
NETVANTAGE, INC.
By /s/ STEPHEN R. RIZZONE
---------------------------------------
Stephen R. Rizzone
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints STEPHEN R. RIZZONE and THOMAS G. IWANSKI, or
either of them, his attorneys-in-fact, with full power of substitution, for him
in any and all capacities, to sign any amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorneys-in-fact, or their substitutes,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------ ---------------------------------- ----------------
<S> <C> <C>
/s/ STEPHEN R. RIZZONE
-------------------------- Chairman of the Board, President October 24, 1997
Stephen R. Rizzone and Chief Executive Officer
(Principal Executive Officer)
/s/ THOMAS G. IWANSKI
-------------------------- Chief Financial Officer, Vice October 24, 1997
Thomas G. Iwanski President of Finance and Secretary
(Principal Financial Officer and
Principal Accounting Officer)
/s/ CARLOS A. TOMASZEWSKI
-------------------------- Director October 24, 1997
Carlos A. Tomaszewski
/s/ RICHARD N. TINSLEY Director October 24, 1997
--------------------------
Richard N. Tinsley
/s/ JOHN E. MARMAN
--------------------- Director October 24, 1997
John E. Marman
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Exhibits
- --------
4.1 Amended and Restated Common Stock Purchase Warrant
Issued by the Registrant to Stephen R. Rizzone.
4.2 Amended and Restated Common Stock Purchase Warrant
Issued by the Registrant to Stephen R. Rizzone.
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of Heller Ehrman White & McAuliffe
(included in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
24 Power of Attorney of Certain Officers
and Directors (included on Page II-4)
<PAGE>
EXHIBIT 4.1
-----------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT
TO THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREUNDER OR
AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER HEREOF TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after January 1, 1999 Right to Purchase 15,000 shares
of Class A Common Stock of
NetVantage, Inc.
NETVANTAGE, INC.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
NETVANTAGE, INC., a Delaware corporation (the "Company"), hereby certifies
that, for the sum of $150.00 and other valuable consideration, receipt of which
is hereby acknowledged, STEPHEN R. RIZZONE or assigns ("Holder") is entitled,
subject to the terms set forth below, to purchase from the Company at any time
after the Commencement Date described in Section 15 hereof (the "Commencement
Date") but before 4:30 p.m., Los Angeles time, on January 1, 1999 (the
"Termination Date"), Fifteen Thousand (15,000) fully paid and nonassessable
shares of Class A Common Stock, $.001 par value per share, of the Company (the
"Warrant Stock") upon surrender hereof at the principal office of the Company
(with a Subscription form as attached hereto duly executed) and the simultaneous
payment of the applicable purchase price described in Section 1.2 hereof (the
"Purchase Price per Share"); provided that the number of shares issuable upon
the exercise of this Amended and Restated Common Stock Purchase Warrant
("Warrant") is subject to change in accordance with subsections 1.1, 1.2 and 1.3
and Section 3 hereof.
This Warrant, evidencing the right to purchase an aggregate of 15,000
shares of Warrant Stock, was initially issued pursuant to Article III, Section 9
of that Employment Agreement between the Holder and the Company dated as of
March 26, 1996 (which Employment Agreement has been amended and restated since
March 26, 1996). The Warrant initially issued has been surrendered by the
Holder, and cancelled, in exchange for this Warrant.
A permit for the sale and issuance of this Warrant and the issuance of Warrant
Stock upon exercise was not obtained from the Commissioner of Corporations of
the State of California by reason of an exemption from such requirement pursuant
to Section 25102(f) of the California Corporations Code. ACCORDINGLY, THE
PURCHASER AND ANY TRANSFEREE OF THIS WARRANT AND TRANSACTION PURSUANT TO WHICH
IT IS ISSUED, SOLD OR TRANSFERRED MUST MEET THE REQUIREMENTS OF SAID SECTION
25102(f) AND/OR SECTION 25104 AND THE RULES PROMULGATED THEREUNDER.
<PAGE>
TERMS AND CONDITIONS OF WARRANT
1. PURCHASE PRICE; EXERCISE OF WARRANT.
1.1 This Warrant may be exercised by the Holder at any time between the
Commencement Date and the Termination Date, in full or from time to time in
part, by surrender of this Warrant, together with a duly executed subscription
in the form attached hereto, to the Company at its principal office, accompanied
by payment in cash or by certified or bank cashier's check payable to the order
of the Company in an amount determined by multiplying (i) the number of shares
of Warrant Stock being purchased by (ii) the Purchase Price per Share, as such
amount may be adjusted from time to time pursuant to Section 3 hereof.
1.2 The Purchase Price per Share for any exercise of this Warrant to
purchase Warrant Stock shall be $5.8125 per Share.
1.3 In the event that a bank or trust company shall have been appointed as
trustee for the Holders of the Warrant pursuant to subsection 3.4, such bank or
trust company shall have all the powers and duties of a warrant agent duly
appointed, and shall accept, in its own name for the account of the Company or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor on exercise of this Warrant pursuant to this
Section 1.
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after
the exercise of this Warrant in full or in part, and in any event within 20 days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder or as the Holder (upon payment by Holder of any applicable transfer
taxes) may direct, a certificate or certificates for the number of fully paid
and nonassessable shares of Warrant Stock to which the Holder shall be entitled
on such exercise. If this Warrant is exercised with respect to less than all of
the Warrant Stock, the Company shall cancel this Warrant and issue and deliver
to the Holder a new Warrant document of like tenor covering the Warrant Stock
not purchased. This Warrant shall be exercisable only for a whole number of
shares of Warrant Stock.
3. ADJUSTMENT FOR CERTAIN EVENTS.
3.1 Reorganization, Consolidation, Merger or Sale. If the Company after
---------------------------------------------
the date of this Warrant shall (a) effect a reorganization, (b) consolidate with
or merge into any other entity, or (c) transfer all or substantially all of its
properties or assets to any other person or entity under any plan or arrangement
contemplating the dissolution of the Company within 24 months from the date of
such transfer, then, in each such case, the Holder, on the exercise hereof as
provided in Section 1 at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Warrant Stock issuable on such exercise
prior to such consummation or such effective date, the stock and other
securities and property (including cash) to which the Holder would have been
entitled upon such consummation or in connection with such dissolution, as the
case may be, if the Holder had so exercised this Warrant, immediately prior
thereto.
2
<PAGE>
3.2 Distributions Other Than Dividends from Surplus. In case at any time
-----------------------------------------------
after the date of this Warrant, the holders of Class A Common Stock shall have
received, without payment therefor, (i) other or additional stock or other
securities or property (other than cash) by way of dividend, or (ii) cash paid
or payable except out of earned surplus as at the close of the fiscal year
immediately preceding the date thereof, then in each case the Holder, upon
exercise hereof shall be entitled to receive the amount of stock and other
securities and property or cash which the Holder would hold on the date of such
exercise if on the date hereof he or she had been a holder of record of the
number of shares of Class A Common Stock called for on the face of this Warrant
and had thereafter, during the period from the date of this Warrant to and
including the date of such exercise, retained such shares and all other
securities and property receivable by him or her during such period, giving
effect to all adjustments called for during such period.
3.3 Stock Dividends. In case the Company shall declare any dividend, or
---------------
make any other distribution, on or in respect of any stock of the Company of any
class, which dividend or distribution is payable or paid in Class A Common
Stock, such declaration or other distribution shall be deemed to be a
distribution without consideration and the number of shares issuable upon
exercise of this Warrant shall thereupon be adjusted in the manner described in
subsection 3.2 to reflect such issue of shares.
3.4 Dissolution or Sale of All Assets. In the event of any dissolution of
---------------------------------
the Company following the transfer of all or substantially all of its properties
or assets, the Company, prior to such dissolution, shall at its expense deliver
or cause to be delivered the stock and other securities and property (including
cash, where applicable) receivable by the Holders after the effective date of
such dissolution pursuant to this Section 3 to a bank or trust company having
its principal office in Los Angeles County, California, as trustee for the
Holder or Holders.
3.5 Continuation of Warrant. Upon occurrence of any of the events
-----------------------
described in this Section 3 which result in an adjustment, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable to
the shares of stock and other securities and property receivable on the exercise
of this Warrant after the consummation or effective date of such transaction or
event, and shall be binding upon the issuer of any such stock or other
securities received pursuant thereto including, in the case of any such
transfer, the person acquiring all or substantially all of the properties or
assets of the Company, whether or not such person shall have expressly assumed
the terms of this Warrant as provided in Section 4 hereof.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
dilution or other impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any shares of Warrant Stock
receivable on the exercise of the Warrant above the amount payable therefor on
such exercise, (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Warrant Stock on the exercise of all Warrants from time
to time
3
<PAGE>
outstanding, or (c) will not transfer all or substantially all of its properties
and assets to any other person or entity or permit a consolidation with or
merger into the Company (if the Company is not the surviving entity), unless the
surviving entity shall expressly assume in writing and will be bound by all the
terms of the Warrant.
5. NOTIFICATION OF CORPORATE ACTIONS. In the event of:
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock or any
other securities or property, or to receive any other right, or
(b) any capital reorganization, voluntary or involuntary dissolution, or
liquidation of the Company, any reclassification or recapitalization of the
capital stock of the Company or any transfer of all or substantially all
the assets of the Company to, or consolidation or merger of the Company
with or into, any other person, or
(c) any proposed issue or grant of the Company of any of its securities, or
rights to acquire any of its securities (other than the issuance of Warrant
Stock upon exercise of the Warrant), in each case at a price less than the
fair market value thereof,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, (ii) the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if fixed, as of which the holders of record of Warrant
Stock or other capital stock of the Company shall be entitled to exchange their
securities of the Company for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
6. NO RIGHTS AS STOCKHOLDER. Holder shall have no rights as a stockholder
with respect to the Shares covered by any installment of this Warrant until the
effective date of issuance of the Shares following exercise of this Warrant, and
no adjustment will be made for dividends or other rights for which the record
date is prior to the date such stock certificate or certificates are issued
except as provided in Section 3 hereof.
7. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANTS. The Company will at
all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrant, all shares of Warrant Stock from time to time issuable
on the exercise of the Warrant.
4
<PAGE>
8. EXCHANGE OF WARRANT. On surrender for exchange of the Warrant properly
endorsed to the Company, the Company at its expense will issue and deliver to or
on the order of the Holder a new Warrant or Warrants of like tenor, in the name
of the Holder or as the Holder (upon payment by Holder of any applicable
transfer taxes) may direct calling in the aggregate on the face or faces thereof
for the number of shares of Warrant Stock called for on the face or faces of the
Warrant (or any warrant issued in respect of the Warrant) so surrendered.
9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of the Warrant (or any
warrant issued in respect of the Warrant) and, in the case of any such loss,
theft or destruction of any Warrant, on delivery of an indemnity agreement or
security reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, on surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver in lieu thereof, a new Warrant
of like tenor.
10. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that,
absent an effective registration statement or notification of a valid exemption
thereto, in either case under the Securities Act of 1933, covering the
disposition of the Warrant or Warrant Stock for which the Warrant is
exercisable, the Holder will not sell or transfer any or all of such Warrant or
Warrant Stock, as the case may be, without first providing the Company with a
satisfactory opinion of counsel to the effect that such sale or transfer will be
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, and the Holder consents to the Company's making a
notation on its records or giving instructions to any transfer agent of the
Warrant or such Warrant Stock in order to implement such restriction on
transferability.
11. REMEDIES. The Company stipulates that the remedies at law of the Holder in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms of this Warrant are not and will not be
adequate, and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
12. NOTICES. All notices and other communications from the Company to the
Holder shall be mailed by first class, registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company in writing by
the Holder or, until such Holder furnishes to the Company a new address or
address of a new Holder, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
13. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant is being delivered in the State of California and shall be
construed and enforced in accordance with its laws and subject to the exclusive
jurisdiction of the courts therein. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof. This Warrant is being executed as an instrument under seal. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions.
5
<PAGE>
14. ENTIRE UNDERSTANDING. This Warrant, along with the Employment Agreement
(as amended and restated), sets forth the entire understanding between the
Company and the Holder (or any other party claiming rights hereunder) and there
are no other agreements, understandings or restrictions between the parties
other than those set forth herein with respect to the subject matter hereof.
15. COMMENCEMENT AND EXPIRATION OF EXERCISE RIGHTS. This Warrant shall become
exercisable as of the date the first one-half of the outstanding Class E Common
Stock are converted to Class B Common Stock pursuant to Section 4(c)(1)(a) of
the Corporation's Restated Certificate of Incorporation in effect as of the
Commencement Date. The right to exercise this Warrant shall expire at 4:30
p.m., Los Angeles time, on January 1, 1999 (Termination Date).
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Common Stock Purchase Warrant as of April 22, 1997.
"Company" NETVANTAGE, INC.
(Corporate Seal) By: /s/ THOMAS G. IWANSKI
-------------------------------
Thomas G. Iwanski, Secretary
"Holder"
/s/ STEPHEN R. RIZZONE
___________________________________
STEPHEN R. RIZZONE
6
<PAGE>
SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned, the Holder of the within Warrant, irrevocably exercises
this Warrant and purchases _____ of the _______ shares of Class A Common Stock
of NETVANTAGE, INC. purchasable with this Warrant, and herewith makes payment
therefor, all at the price and on the terms and conditions specified in this
Warrant.
Dated:
__________________________________________
Stephen R. Rizzone
__________________________________________
Street Address
__________________________________________
City State Zip Code
_____________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered owner of this NETVANTAGE,
INC. Warrant hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned under the Warrant, with respect to the
number of shares of Class A Common Stock set forth below:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
and does hereby irrevocably constitute and appoint ___________________________
Attorney to make such transfer on the books of NETVANTAGE, INC. maintained for
the purpose, with full power of substitution in the premises. I represent and
warrant that each of such transferees meets the requirements of Section 25102(f)
or Section 25104 of the California Corporations Code and rules promulgated
thereunder.
Dated:
By: _________________________________________
Stephen R. Rizzone
_____________________________________________
(Witness)
7
<PAGE>
EXHIBIT 4.2
-----------
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED PURSUANT
TO THE SECURITIES ACT OF 1933, AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION THEREUNDER OR
AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER HEREOF TO THE EFFECT THAT SUCH
REGISTRATION IS NOT REQUIRED.
Void after January 1, 1999 Right to Purchase 15,000 shares
of Class A Common Stock of
NetVantage, Inc.
NETVANTAGE, INC.
AMENDED AND RESTATED
COMMON STOCK PURCHASE WARRANT
NETVANTAGE, INC., a Delaware corporation (the "Company"), hereby certifies
that, for the sum of $150.00 and other valuable consideration, receipt of which
is hereby acknowledged, STEPHEN R. RIZZONE or assigns ("Holder") is entitled,
subject to the terms set forth below, to purchase from the Company at any time
after the Commencement Date described in Section 15 hereof (the "Commencement
Date") but before 4:30 p.m., Los Angeles time, on January 1, 1999 (the
"Termination Date"), Fifteen Thousand (15,000) fully paid and nonassessable
shares of Class A Common Stock, $.001 par value per share, of the Company (the
"Warrant Stock") upon surrender hereof at the principal office of the Company
(with a Subscription form as attached hereto duly executed) and the simultaneous
payment of the applicable purchase price described in Section 1.2 hereof (the
"Purchase Price per Share"); provided that the number of shares issuable upon
the exercise of this Amended and Restated Common Stock Purchase Warrant
("Warrant") is subject to change in accordance with subsections 1.1, 1.2 and 1.3
and Section 3 hereof.
This Warrant, evidencing the right to purchase an aggregate of 15,000
shares of Warrant Stock, was initially issued pursuant to Article III, Section 9
of that Employment Agreement between the Holder and the Company dated as of
March 26, 1996 (which Employment Agreement has been amended and restated since
March 26, 1996). The Warrant initially issued has been surrendered by the
Holder, and cancelled, in exchange for this Warrant.
A permit for the sale and issuance of this Warrant and the issuance of Warrant
Stock upon exercise was not obtained from the Commissioner of Corporations of
the State of California by reason of an exemption from such requirement pursuant
to Section 25102(f) of the California Corporations Code. ACCORDINGLY, THE
PURCHASER AND ANY TRANSFEREE OF THIS WARRANT AND TRANSACTION PURSUANT TO WHICH
IT IS ISSUED, SOLD OR TRANSFERRED MUST MEET THE REQUIREMENTS OF SAID SECTION
25102(f) AND/OR SECTION 25104 AND THE RULES PROMULGATED THEREUNDER.
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TERMS AND CONDITIONS OF WARRANT
1. PURCHASE PRICE; EXERCISE OF WARRANT.
1.1 This Warrant may be exercised by the Holder at any time between the
Commencement Date and the Termination Date, in full or from time to time in
part, by surrender of this Warrant, together with a duly executed subscription
in the form attached hereto, to the Company at its principal office, accompanied
by payment in cash or by certified or bank cashiers check payable to the order
of the Company in an amount determined by multiplying (i) the number of shares
of Warrant Stock being purchased by (ii) the Purchase Price per Share, as such
amount may be adjusted from time to time pursuant to Section 3 hereof.
1.2 The Purchase Price per Share for any exercise of this Warrant to
purchase Warrant Stock shall be $5.8125 per Share.
1.3 In the event that a bank or trust company shall have been appointed as
trustee for the Holders of the Warrant pursuant to subsection 3.4, such bank or
trust company shall have all the powers and duties of a warrant agent duly
appointed, and shall accept, in its own name for the account of the Company or
such successor person as may be entitled thereto, all amounts otherwise payable
to the Company or such successor on exercise of this Warrant pursuant to this
Section 1.
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after
the exercise of this Warrant in full or in part, and in any event within 20 days
thereafter, the Company at its expense (including the payment by it of any
applicable issue taxes) will cause to be issued in the name of and delivered to
the Holder or as the Holder (upon payment by Holder of any applicable transfer
taxes) may direct, a certificate or certificates for the number of fully paid
and nonassessable shares of Warrant Stock to which the Holder shall be entitled
on such exercise. If this Warrant is exercised with respect to less than all of
the Warrant Stock, the Company shall cancel this Warrant and issue and deliver
to the Holder a new Warrant document of like tenor covering the Warrant Stock
not purchased. This Warrant shall be exercisable only for a whole number of
shares of Warrant Stock.
3. ADJUSTMENT FOR CERTAIN EVENTS.
3.1 Reorganization, Consolidation, Merger or Sale. If the Company after
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the date of this Warrant shall (a) effect a reorganization, (b) consolidate with
or merge into any other entity, or (c) transfer all or substantially all of its
properties or assets to any other person or entity under any plan or arrangement
contemplating the dissolution of the Company within 24 months from the date of
such transfer, then, in each such case, the Holder, on the exercise hereof as
provided in Section 1 at any time after the consummation of such reorganization,
consolidation or merger or the effective date of such dissolution, as the case
may be, shall receive, in lieu of the Warrant Stock issuable on such exercise
prior to such consummation or such effective date, the stock and other
securities and property (including cash) to which the Holder would have been
entitled upon such consummation or in connection with such dissolution, as the
case may be, if the Holder had so exercised this Warrant, immediately prior
thereto.
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3.2 Distributions Other Than Dividends from Surplus. In case at any time
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after the date of this Warrant, the holders of Class A Common Stock shall have
received, without payment therefor, (i) other or additional stock or other
securities or property (other than cash) by way of dividend, or (ii) cash paid
or payable except out of earned surplus as at the close of the fiscal year
immediately preceding the date thereof, then in each case the Holder, upon
exercise hereof shall be entitled to receive the amount of stock and other
securities and property or cash which the Holder would hold on the date of such
exercise if on the date hereof he or she had been a holder of record of the
number of shares of Class A Common Stock called for on the face of this Warrant
and had thereafter, during the period from the date of this Warrant to and
including the date of such exercise, retained such shares and all other
securities and property receivable by him or her during such period, giving
effect to all adjustments called for during such period.
3.3 Stock Dividends. In case the Company shall declare any dividend, or
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make any other distribution, on or in respect of any stock of the Company of any
class, which dividend or distribution is payable or paid in Class A Common
Stock, such declaration or other distribution shall be deemed to be a
distribution without consideration and the number of shares issuable upon
exercise of this Warrant shall thereupon be adjusted in the manner described in
subsection 3.2 to reflect such issue of shares.
3.4 Dissolution or Sale of All Assets. In the event of any dissolution of
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the Company following the transfer of all or substantially all of its properties
or assets, the Company, prior to such dissolution, shall at its expense deliver
or cause to be delivered the stock and other securities and property (including
cash, where applicable) receivable by the Holders after the effective date of
such dissolution pursuant to this Section 3 to a bank or trust company having
its principal office in Los Angeles County, California, as trustee for the
Holder or Holders.
3.5 Continuation of Warrant. Upon occurrence of any of the events
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described in this Section 3 which result in an adjustment, this Warrant shall
continue in full force and effect and the terms hereof shall be applicable to
the shares of stock and other securities and property receivable on the exercise
of this Warrant after the consummation or effective date of such transaction or
event, and shall be binding upon the issuer of any such stock or other
securities received pursuant thereto including, in the case of any such
transfer, the person acquiring all or substantially all of the properties or
assets of the Company, whether or not such person shall have expressly assumed
the terms of this Warrant as provided in Section 4 hereof.
4. NO DILUTION OR IMPAIRMENT. The Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Warrant, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect the rights of the Holder against
dilution or other impairment. Without limiting the generality of the foregoing,
the Company (a) will not increase the par value of any shares of Warrant Stock
receivable on the exercise of the Warrant above the amount payable therefor on
such exercise, (b) will take all such action as may be necessary or appropriate
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Warrant Stock on the exercise of all Warrants from time
to time
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outstanding, or (c) will not transfer all or substantially all of its properties
and assets to any other person or entity or permit a consolidation with or
merger into the Company (if the Company is not the surviving entity), unless the
surviving entity shall expressly assume in writing and will be bound by all the
terms of the Warrant.
5. NOTIFICATION OF CORPORATE ACTIONS. In the event of:
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock or any
other securities or property, or to receive any other right, or
(b) any capital reorganization, voluntary or involuntary dissolution, or
liquidation of the Company, any reclassification or recapitalization of the
capital stock of the Company or any transfer of all or substantially all
the assets of the Company to, or consolidation or merger of the Company
with or into, any other person, or
(c) any proposed issue or grant of the Company of any of its securities, or
rights to acquire any of its securities (other than the issuance of Warrant
Stock upon exercise of the Warrant), in each case at a price less than the
fair market value thereof,
then and in each such event the Company will mail or cause to be mailed to each
holder of a Warrant a notice specifying (i) the date on which any such record is
to be taken for the purpose of such dividend, distribution or right, (ii) the
date on which any such reorganization, reclassification, recapitalization,
transfer, consolidation, merger, dissolution, liquidation or winding-up is to
take place, and the time, if fixed, as of which the holders of record of Warrant
Stock or other capital stock of the Company shall be entitled to exchange their
securities of the Company for securities or other property deliverable on such
reorganization, reclassification, recapitalization, transfer, consolidation,
merger, dissolution, liquidation or winding-up and (iii) the amount and
character of any stock or other securities, or rights or options with respect
thereto, proposed to be issued or granted, the date of such proposed issue or
grant and the persons or class of persons to whom such proposed issue or grant
is to be offered or made. Such notice shall be mailed at least 20 days prior to
the date specified in such notice on which any such action is to be taken.
6. NO RIGHTS AS STOCKHOLDER. Holder shall have no rights as a stockholder
with respect to the Shares covered by any installment of this Warrant until the
effective date of issuance of the Shares following exercise of this Warrant, and
no adjustment will be made for dividends or other rights for which the record
date is prior to the date such stock certificate or certificates are issued
except as provided in Section 3 hereof.
7. RESERVATION OF STOCK ISSUABLE ON EXERCISE OF WARRANTS. The Company will at
all times reserve and keep available, solely for issuance and delivery on the
exercise of the Warrant, all shares of Warrant Stock from time to time issuable
on the exercise of the Warrant.
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8. EXCHANGE OF WARRANT. On surrender for exchange of the Warrant properly
endorsed to the Company, the Company at its expense will issue and deliver to or
on the order of the Holder a new Warrant or Warrants of like tenor, in the name
of the Holder or as the Holder (upon payment by Holder of any applicable
transfer taxes) may direct calling in the aggregate on the face or faces thereof
for the number of shares of Warrant Stock called for on the face or faces of the
Warrant (or any warrant issued in respect of the Warrant) so surrendered.
9. REPLACEMENT OF WARRANTS. On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of the Warrant (or any
warrant issued in respect of the Warrant) and, in the case of any such loss,
theft or destruction of any Warrant, on delivery of an indemnity agreement or
security reasonably satisfactory in form and amount to the Company or, in the
case of any such mutilation, on surrender and cancellation of such Warrant, the
Company at its expense will execute and deliver in lieu thereof, a new Warrant
of like tenor.
10. RESTRICTIONS ON TRANSFER. The Holder, by acceptance hereof, agrees that,
absent an effective registration statement or notification of a valid exemption
thereto, in either case under the Securities Act of 1933, covering the
disposition of the Warrant or Warrant Stock for which the Warrant is
exercisable, the Holder will not sell or transfer any or all of such Warrant or
Warrant Stock, as the case may be, without first providing the Company with a
satisfactory opinion of counsel to the effect that such sale or transfer will be
exempt from the registration and prospectus delivery requirements of the
Securities Act of 1933, and the Holder consents to the Company's making a
notation on its records or giving instructions to any transfer agent of the
Warrant or such Warrant Stock in order to implement such restriction on
transferability.
11. REMEDIES. The Company stipulates that the remedies at law of the Holder in
the event of any default or threatened default by the Company in the performance
of or compliance with any of the terms of this Warrant are not and will not be
adequate, and that such terms may be specifically enforced by a decree for the
specific performance of any agreement contained herein or by an injunction
against a violation of any of the terms hereof or otherwise.
12. NOTICES. All notices and other communications from the Company to the
Holder shall be mailed by first class, registered or certified mail, postage
prepaid, at such address as may have been furnished to the Company in writing by
the Holder or, until such Holder furnishes to the Company a new address or
address of a new Holder, then to, and at the address of, the last holder of this
Warrant who has so furnished an address to the Company.
13. MISCELLANEOUS. This Warrant and any term hereof may be changed, waived,
discharged or terminated only by an instrument in writing signed by the party
against which enforcement of such change, waiver, discharge or termination is
sought. This Warrant is being delivered in the State of California and shall be
construed and enforced in accordance with its laws and subject to the exclusive
jurisdiction of the courts therein. The headings in this Warrant are for
purposes of reference only, and shall not limit or otherwise affect any of the
terms hereof. This Warrant is being executed as an instrument under seal. The
invalidity or unenforceability of any provision hereof shall in no way affect
the validity or enforceability of any other provisions.
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14. ENTIRE UNDERSTANDING. This Warrant, along with the Employment Agreement
(as amended and restated), sets forth the entire understanding between the
Company and the Holder (or any other party claiming rights hereunder) and there
are no other agreements, understandings or restrictions between the parties
other than those set forth herein with respect to the subject matter hereof.
15. COMMENCEMENT AND EXPIRATION OF EXERCISE RIGHTS. This Warrant shall become
exercisable as of the date all remaining outstanding Class E Common Stock are
converted to Class B Common Stock pursuant to Section 4(c)(1)(b) of the
Corporation's Restated Certificate of Incorporation in effect as of the
Commencement Date. The right to exercise this Warrant shall expire at 4:30
p.m., Los Angeles time, on January 1, 1999 (Termination Date).
IN WITNESS WHEREOF, the undersigned have executed this Amended and
Restated Common Stock Purchase Warrant as of April 22, 1997.
"Company" NETVANTAGE, INC.
(Corporate Seal) By: /s/ THOMAS G. IWANSKI
_______________________________
Thomas G. Iwanski, Secretary
"Holder"
/s/ STEPHEN R. RIZZONE
_______________________________
STEPHEN R. RIZZONE
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SUBSCRIPTION FORM
(To be executed only upon exercise of Warrant)
The undersigned, the Holder of the within Warrant, irrevocably exercises
this Warrant and purchases _____ of the _______ shares of Class A Common Stock
of NETVANTAGE, INC. purchasable with this Warrant, and herewith makes payment
therefor, all at the price and on the terms and conditions specified in this
Warrant.
Dated:
__________________________________________
Stephen R. Rizzone
__________________________________________
Street Address
__________________________________________
City State Zip Code
_____________
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered owner of this NETVANTAGE,
INC. Warrant hereby sells, assigns and transfers unto the Assignee named below
all of the rights of the undersigned under the Warrant, with respect to the
number of shares of Class A Common Stock set forth below:
Name of Assignee Address No. of Shares
- ---------------- ------- -------------
and does hereby irrevocably constitute and appoint ___________________________
Attorney to make such transfer on the books of NETVANTAGE, INC. maintained for
the purpose, with full power of substitution in the premises. I represent and
warrant that each of such transferees meets the requirements of Section 25102(f)
or Section 25104 of the California Corporations Code and rules promulgated
thereunder.
Dated:
By: _________________________________________
Stephen R. Rizzone
_____________________________________________
(Witness)
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<PAGE>
[LETTERHEAD OF HELLER EHRMAN WHITE & McAULIFFE]
EXHIBIT 5
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October 24, 1997
23057-0001
NetVantage, Inc.
201 Continental Boulevard
Suite 201
El Segundo, California 90245
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to NetVantage, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") which the Company proposes to file on or about October
24, 1997, for the purpose of registering under the Securities Act of 1933, as
amended, an aggregate of 30,000 shares of the Company's Class A Common Stock,
$.001 par value per share (the "Shares"). The Shares are issuable upon exercise
of two Amended and Restated Common Stock Purchase Warrants (collectively, the
"Warrants") issued by the Company to its Chairman of the Board, President and
Chief Executive Officer under an Employment Agreement dated as of March 26,
1996.
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures,
the legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies. We have based our
opinion upon our review of the following records, documents, instruments and
certificates and such additional certificates relating to factual matters as we
have deemed necessary or appropriate for our opinion:
(a) The Restated Certificate of Incorporation, as amended, of the
Company certified by the Secretary of State of the State of
Delaware as of October 22, 1997, and certified to us by an
officer of the Company as being complete and in full force and
effect as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the
Company as being complete and in full force and effect as of the
date of this opinion;
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NetVantage, Inc.
October 24, 1997
Page 2
(c) A Certificate of the Chief Financial Officer of the Company (i)
attaching records certified to us as constituting all records of
proceedings and actions of the Board of Directors of the Company
relating to the adoption and amendment of the Warrants, and (ii)
certifying as to certain other factual matters;
(d) The Registration Statement;
(e) The Warrants; and
(f) A letter from Continental Stock Transfer & Trust, the Company's
transfer agent, dated October 23, 1997 as to the number of shares
of Class A Common Stock of the Company outstanding as of October
21, 1997.
This opinion is limited to the Delaware General Corporation Law
(without review of the rules, regulations or case law application to such
statute) and we disclaim any opinion as to the laws of any other jurisdiction.
We further disclaim any opinion as to any statute, rule, regulation, ordinance,
order or other promulgation of any regional or local governmental body or as to
any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and issued, (ii) appropriate
certificates evidencing the Shares will be executed and delivered upon issuance
of the Shares, (iii) the full consideration stated in the Warrants is paid for
each Share, and (iv) all applicable securities laws are complied with, it is our
opinion that when issued by the Company, after payment therefor in the manner
provided in the Warrants, the Shares will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon
by you for any other purpose, or relied upon by any other person, firm,
corporation or other entity without our prior written consent. We disclaim any
obligation to advise you of any change of law that occurs, or any facts of which
we become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HELLER EHRMAN WHITE & McAULIFFE
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EXHIBIT 23.2
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Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 31, 1997 appearing on page 15 of
the NetVantage, Inc. Annual Report on Form 10-K for the year ended December 31,
1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Costa Mesa, California
October 22, 1997
