-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NJl0iV+YYhNgZNjsz5EzjsZblwsxYCWUn12rYkDFwA3w8FlLYCk5Ze+1CmeHB3cs bzbkGBIZRCmqulkN6sl9Xw== 0001021408-01-500060.txt : 20010321 0001021408-01-500060.hdr.sgml : 20010321 ACCESSION NUMBER: 0001021408-01-500060 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 20010320 EFFECTIVENESS DATE: 20010320 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IXATA GROUP INC CENTRAL INDEX KEY: 0000929425 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL INSTRUMENTS FOR MEASUREMENT, DISPLAY, AND CONTROL [3823] IRS NUMBER: 944453386 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57286 FILM NUMBER: 1572740 BUSINESS ADDRESS: STREET 1: 8080 DAGGETT STREET SUITE 220 CITY: SAN DIEGO STATE: CA ZIP: 92111 BUSINESS PHONE: 6196775580 MAIL ADDRESS: STREET 1: 8080 DAGGETT STREET SUITE 220 CITY: SAN DIEGO STATE: CA ZIP: 92111 FORMER COMPANY: FORMER CONFORMED NAME: SECURFONE AMERICA INC DATE OF NAME CHANGE: 19971114 FORMER COMPANY: FORMER CONFORMED NAME: MATERIAL TECHNOLOGY INC DATE OF NAME CHANGE: 19970326 FORMER COMPANY: FORMER CONFORMED NAME: MATERIAL TECHNOLOGIES INC DATE OF NAME CHANGE: 19970313 S-8 1 ds8.txt FORM S-8 REGISTRATION STATEMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 The IXATA Group, Inc. (Exact Name of Registrant as Specified in its Charter) Delaware 34-1833574 (State of Incorporation) (I.R.S. Employer Identification No.) 8989 Rio San Diego Drive, San Diego, California 92108 (Address of Principal Executive Offices) (Zip Code) Amendment No. 1 to the 1997 Stock Option Plan Restricted Stock Award Agreement between The IXATA Group, Inc. and Michael W. Wynne Letter Agreements between The IXATA Group, Inc. and Cheryl Monblatt Allen, Lacretia Bachhofer, Maureen Dime, Luciana Manfredi and John P. Yzaguirre (Full Title of the Plans) Copy to: Michael W. Wynne, Christopher J. Hubbert, Esq. Chief Executive Officer Kohrman Jackson & Krantz P.L.L. The IXATA Group, Inc. 1375 East Ninth Street 8989 Rio San Diego Drive 20th Floor, One Cleveland Center San Diego, California 92108 Cleveland, Ohio 44114 619-400-8800 216-696-8700 (Name, Address and Telephone Number, of Agent for Service) Calculation of Registration Fee
Proposed Maximum Proposed Maximum Title of Securities Amount to be Offering Price Aggregate Offering Amount of to be Registered Registered/1/ per Share/2/ Price/2/ Registration Fee - ------------------------------------------------------------------------------------------------------------------ Common Stock 2,546,000 Shares/3/ $ 0.0781/4/ $ 198,846.20 $ 49.75 - ------------------------------------------------------------------------------------------------------------------ Common Stock 3,000,000 Shares/5/ $ 0.0938 $ 281,400.00 $ 70.33 - ------------------------------------------------------------------------------------------------------------------ Common Stock 454,000 Shares/5/ $ 0.156 $ 70,824.00 $ 17.72 - ------------------------------------------------------------------------------------------------------------------ Common Stock 1,500,000 Shares/6/ $ 0.0781/4/ $ 117,150.00 $ 32.25 - ------------------------------------------------------------------------------------------------------------------ Common Stock 33,863 Shares/7/ $ 0.0781/4/ $ 2,644.70 $ 0.75 - ------------------------------------------------------------------------------------------------------------------ TOTAL: 7,533,864 Shares $170.80 ==================================================================================================================
1 Pursuant to Rule 416(c) under the Securities Act of 1933 (the "Securities Act"), this Registration Statement covers, in addition to the number of shares of Class A Common Stock, par value $0.001 per share (the "Common Stock"), stated above, an indeterminant number of shares of Common Stock that may be issued upon exercise of options granted under the Registrant's 1997 Stock Option Plan, as amended (the "1997 Plan"), as a result of the adjustment provisions thereof. 2 Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) under the Securities Act. 3 Shares for which options have not yet been granted under the 1997 Plan. 4 The average of the high and low price of the Common Stock on March 14, 2001 as reported on the Nasdaq OTC Bulletin Board.(R) 5 Shares issuable upon the exercise of outstanding options under the 1997 Plan. 6 Shares issuable pursuant to the Restricted Stock Award Agreement between the Company and Michael W. Wynne. 7 Shares issuable pursuant to Letter Agreements between the Company and Cheryl Monblatt Allen, Lacretia Bachhofer, Maureen Dime, Luciana Manfredi, and John P. Yzaguirre. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information required by Part I is included in documents sent or given to employees pursuant to Rule 428(b)(1) issued by the Securities and Exchange Commission (the "Commission") under the Securities Act. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents previously filed by The IXATA Group, Inc., a Delaware corporation (the "Company"), with the Commission are hereby incorporated by reference in this Registration Statement: (a) (1) The Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 1999, filed on May 16, 2000. (2) The Company's Quarterly Report on Form 10-QSB for the quarterly period ended March 31, 2000, filed on May 22, 2000. (3) The Company's Quarterly Report on Form 10-QSB for the quarterly period ended June 30, 2000, filed on September 22, 2000. (4) The Company's Quarterly Report on Form 10-QSB for the quarterly period ended September 30, 2000, filed on November 21, 2000. (b) (1) The Company's Current Report on Form 8-K regarding the name change of the Company filed February 7, 2000. (2) The Company's Amended Current Report on Form 8-K/A regarding the acquisition of IXATA, Inc. filed March 10, 2000. (3) The Company's Current Report on Form 8-K related to a change of auditors for the Company from Conte Co., C.P.A., Inc. to Nation Smith Hermes Diamond, APC, filed March 30, 2000. (4) The Company's Amended Current Report on Form 8-K/A related to a change of auditors for the Company from Conte Co., C.P.A., Inc. to Nation Smith Hermes Diamond, APC, filed April 24, 2000. (5) The Company's Current Report on Form 8-K regarding the investment by certain investors and change in control of the Board of Directors filed December 5, 2000. (c) The description of the Company's Class A Common Stock, par value $0.001 per share (the "Common Stock"), contained in the Registration Statement of Material Technology, Inc., now known as The IXATA Group, Inc., on Form S-1 filed March 3 19, 1997 (File No. 333-23617) with the Commission pursuant to (S)12(g) of the Exchange Act (there being no further amendment or report filed for the purpose of updating such description). All documents hereafter filed by the Company pursuant to (S)(S)13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment hereto which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. The financial statements and schedules incorporated by reference in this Registration Statement from the Company's Annual Report on Form 10-KSB for the year ended December 31, 2000 have been audited by Nation Smith Hermes Diamond, independent certified public accountants, to the extent and for the periods set forth in their report (which contain an explanatory paragraph regarding the Company's ability to continue as a going concern) appearing elsewhere therein and are included in reliance upon such reports given upon the authority of said firm as experts in auditing and accounting. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The law firm of Kohrman Jackson & Krantz P.L.L., Cleveland, Ohio ("KJK"), performs legal services for the Company and is providing the opinion attached to this Registration Statement as Exhibit 5.1. Steven L. Wasserman and Christopher J. Hubbert, Secretary and Assistant Secretary, respectively, of the Company are attorneys and partners in KJK. KJK beneficially holds 600,000 shares of the Company's stock. Item 6. Indemnification of Directors and Officers Certain statutes and Articles 6 and 7 of the Company's Amended and Restated Certificate of Incorporation and Article VII of the Company's Bylaws, provide that, in certain cases, the liability of each director shall be limited and each officer and director and controlling person of the Company shall be indemnified by the Company against certain costs, expenses and liabilities which he may incur in his capacity as such. Accordingly, the liability of such persons may be affected as a result. Item 7. Exemption From Registration Claimed Not applicable. 4 Item 8. Exhibits 4.1 Amendment No. 1 to the 1997 Stock Option Plan 4.2 Restricted Stock Award Agreement between the Company and Michael W. Wynne 4.3 Letter Agreement between the Company and Cheryl Monblatt Allen 4.4 Letter Agreement between the Company and Lacretia Bachhofer 4.5 Letter Agreement between the Company and Maureen Dime 4.6 Letter Agreement between the Company and Luciana Manfredi 4.7 Letter Agreement between the Company and John P. Yzaguirre 5.1 Opinion of Kohrman Jackson & Krantz P.L.L. 23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1) 23.2 Consent of Nation Smith Hermes Diamond, APC 24.1 Power of Attorney (included on signature page) Item 9. Undertakings (a) The Company 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 (S)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; 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; 5 provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post- effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to (S)13 or 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) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company 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 San Diego, State of California, on March 20, 2001. THE IXATA GROUP, INC. /s/ Michael W. Wynne ------------------------------ By: Michael W. Wynne, Chief Executive Officer 6 POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Michael W. Wynne and Christopher J. Hubbert his true and lawful attorney-in-fact and agent, with full power of substitution and revocation, to sign on his behalf, individually and in each capacity stated below, all amendments and post- effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto and any other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact or their substitutes, each acting alone, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
Name Title Date /s/ Michael W. Wynne Chief Executive Officer and Director March 20, 2001 - --------------------------------- Michael W. Wynne /s/ Robert D. Cuthbertson Chief Financial Officer March 20, 2001 - --------------------------------- Robert D. Cuthbertson /s/ Michael M. Grand Director March 20, 2001 - --------------------------------- Michael M. Grand /s/ Zimri C. Putney Director March 20, 2001 - --------------------------------- Zimri C. Putney /s/ Edward C. Groark Director March 20, 2001 - --------------------------------- Edward C. Groark
7 EXHIBIT INDEX 4.1 Amendment No. 1 to the 1997 Stock Option Plan 4.2 Restricted Stock Award Agreement between the Company and Michael W. Wynne 4.3 Letter Agreement between the Company and Cheryl Monblatt Allen 4.4 Letter Agreement between the Company and Lacretia Bachhofer 4.5 Letter Agreement between the Company and Maureen Dime 4.6 Letter Agreement between the Company and Luciana Manfredi 4.7 Letter Agreement between the Company and John P. Yzaguirre 5.1 Opinion of Kohrman Jackson & Krantz P.L.L. 23.1 Consent of Kohrman Jackson & Krantz P.L.L. (contained in its opinion filed as Exhibit 5.1) 23.2 Consent of Nation Smith Hermes Diamond, APC 24.1 Power of Attorney (included on signature page) 8 EX-4.1 2 dex41.txt AMENDMENT #1 TO 1997 STOCK OPTION PLAN Exhibit 4.1 AMENDMENT NO. 1 TO THE 1997 STOCK OPTION PLAN THIS AMENDMENT NO. 1 TO The IXATA Group, Inc. (the "Company") 1997 Stock Option Plan (this "Amendment") is made and effective as of the 20/th/ day of November, 2000. RECITALS WHEREAS, the Board of Directors of the Company adopted a resolution on November 20, 2000 increasing the number of shares of Common Stock of the Company available under the 1997 Stock Option Plan (the "Plan") from 1,000,000 to 7,000,000. NOW, THEREFORE, the Company hereby amends the Plan as follows: Section 3, captioned "Shares Available under the Plan," is revised to increase the number of Shares available under the Plan from 1,000,000 to 7,000,000. IN WITNESS WHEREOF, the undersigned has executed and delivered this Amendment as of the date first above written. THE IXATA GROUP, INC. By: /s/ Paul B. Silverman ---------------------------------- Paul B. Silverman Its: Chairman of the Board and Chief Executive Officer EX-4.2 3 dex42.txt RESTRICTED STOCK AWARD AGREEMENT - CO. & WYNNE Exhibit 4.2 Restricted Stock Award Agreement THIS RESTRICTED STOCK AWARD AGREEMENT ("Agreement") is entered into as of December 20, 2000, by and between The IXATA Group, Inc., a Delaware corporation (the "Company"), and Michael W. Wynne (the "Participant"). WHEREAS, the Company believes that it would advance the interests of the Company and its stockholders for the Participant to acquire a proprietary interest, or increase the Participant's proprietary interest, in the Company through the grant of a Restricted Stock Award; WHEREAS, the Company's Board of Directors has granted a Restricted Stock Award of shares of Common Stock, par value $0.001 per share, of the Company ("Common Stock") to the Participant on the terms and subject to the conditions set forth herein; and WHEREAS, the Participant desires to accept said Restricted Stock Award pursuant to the terms and subject to the conditions set forth herein; NOW, THEREFORE, the parties agree as follows: 1. RESTRICTED STOCK AWARD. The Company hereby awards 1.5 million shares ---------------------- of Common Stock (collectively, the "Award Shares") to the Participant, subject to all of the terms and conditions contained in this Agreement. 2. ISSUANCE OF AWARD SHARES. The Company shall issue the Award Shares to ------------------------ the Participant as soon as practicable after the Award Shares cease to be subject to forfeiture under Section 3 hereof. 3. FORFEITURE OF AWARD SHARES. The risk of forfeiture shall lapse for -------------------------- 500,000 Award Shares, and such Award Shares shall vest and be issued, on each of December 20, 2001, 2002 and 2003, provided, however, that the risk of forfeiture shall lapse for all of the Award Shares and the Award Shares shall vest and be issued in full immediately upon completion of a transaction or series of related transactions in which the Company sells 25% or more of its assets or voting securities equal to 25% or more of the Company's outstanding voting securities on a fully diluted basis. The Participant shall automatically and without notice cease to have any right, title or interest in or to any of the Award Shares that remain subject to forfeiture upon the occurrence of any of the following events: (i) the Company terminates Participant's employment because of Participant's willful misconduct or gross negligence; or (ii) Participant terminates his employment with the Company without just cause. 4. REPRESENTATIONS AND WARRANTIES OF THE Participant. The Participant ------------------------------------------------- understands that the issuance of the Award Shares is intended to be exempt from registration under the Act by virtue of Section 4(2) of the Securities Act of 1933 (the "Act") and Rule 506 promulgated under the Act, and the Participant represents and warrants that: (b) The Participant is aware that the Shares are not registered under the Act or the securities or "blue sky" laws of any state or jurisdiction (the "Blue Sky Laws") as of the date of this Agreement, and the Company is under no obligation to cause the Award Shares to be registered under the Act or the Blue Sky Laws; and that in the event that the Award Shares are not registered under the Act or the Blue Sky Laws for any reason at a time when the Award Shares are issued to the Participant, then, in addition to the other terms and conditions of this Agreement, such issuance shall be conditioned upon determination by the Company's Board of Directors that the Award Shares may be issued to the Participant without registration under the Act or the Blue Sky Laws. The Board may require the Participant to deliver to the Company an agreement or undertaking setting forth any factual information that the Committee deems necessary to determine whether the Award Shares may be issued to the Participant without registration under the Act or the Blue Sky Laws. (b) The Participant has been advised that the Award Shares cannot be resold unless they are registered under the Act or the Blue Sky Laws or unless an exemption from registration is available and that the certificates representing the Award Shares will be legended accordingly. The Participant is purchasing the Award Shares for his own account for investment and not with a view to, or for resale in connection with, the distribution thereof, and the Participant has no present intention of distributing or reselling the Award Shares. The Participant represents and warrants that the Participant has such knowledge and experience in financial and business matters that he is capable of evaluating the merits and risks of investment in the Award Shares and is able to bear the economic risk of holding the Award Shares indefinitely. (c) The Participant has made a complete and thorough investigation of the affairs and prospects of the Company and has had a reasonable opportunity to ask questions of and receive answers from a person or persons acting on behalf of the Company concerning this investment, and all such questions have been answered to the full satisfaction of the Participant. (d) The Participant acknowledges that the Award Shares will be treated as taxable income to him under the Code. The Participant is not relying on the advice of the Company or its affiliates in connection with the tax consequences of the Participant's receipt of the Award Shares. (e) The Participant is aware that no federal or state agency has made any finding or determination as to the fairness for public or private investment in, nor any recommendation or endorsement of, the Award Shares. (f) The Participant acknowledges that the Company is entering into this Agreement in reliance upon the Participant's representations and warranties in this Agreement, including, without limitation, those set forth in this Section. 5. RIGHTS PRIOR TO ISSUANCE OF AWARD SHARES. The Participant shall not ---------------------------------------- have any rights as a stockholder with respect to any Award Shares prior to the date that they are issued as provided in Section 2 hereof, provided that the foregoing shall not diminish or affect any rights the Participant may have under this Agreement. 2 6. TAXES. ----- (a) Under the general rule of (S)83 of the Code, the Participant will not be treated as receiving the Award Shares until such time as the Participant becomes substantially vested in the Award Shares. The Participant will become substantially vested in the Award Shares upon the expiration of any forfeiture period described in Section 3 above. At that time, the Participant will be taxed on the value of the Award Shares as ordinary compensation income. For the purposes of determining the taxable compensation to the Participant, the value of the Award Shares will be determined without regard to the "investment letter" restrictions on transferability set forth in this Agreement. As an exception to this rule, (S)83 of the Code permits the Participant to elect to be taxed on the value of the Award Shares as of the date of the grant of the Award Shares. The (S)83(b) election must be filed by the Participant within thirty (30) days of the grant of the Award Shares. The filing must be made with the Internal Revenue Service Center with which the Participant files his federal income tax returns and a copy of the election must be submitted (i) with the Participant's income tax return for the taxable year in which the Participant receives the Award Shares and (ii) to the Company. While there is no official Internal Revenue Service form for a (S)83(b) election, a sample form for a (S)83(b) election is attached hereto as Exhibit A. THE PARTICIPANT IS STRONGLY URGED TO CONSULT WITH --------- HIS TAX ADVISOR WITH RESPECT TO THE CONSEQUENCES AND ADVISABILITY OF MAKING A (S)83(B) ELECTION IN CONNECTION WITH HIS RECEIPT OF THE AWARD SHARES AND OTHER TAX ASPECTS OF HIS RECEIPT AND HOLDING OF THE AWARD SHARES. (b) The Company agrees to be responsible for all federal and state taxes payable by Participant with respect to the issuance of the Award Shares based upon their fair market value on the date of issuance if a (S)83(b) election is made, or on the date the Award Shares become vested if a (S)83(b) election not is made. 7. GENERAL PROVISIONS. ------------------ (a) The Company shall reserve and keep available such number of shares of Common Stock as will be sufficient to satisfy the requirements of this Agreement in respect of the issuance of the Award Shares, shall pay all fees and expenses necessarily incurred by the Company in connection therewith, and shall use its best efforts to comply with all laws and regulations that, in the reasonable opinion of counsel for the Company, are applicable thereto. (b) Any notice to be given hereunder by either party to the other shall be in writing and shall be given either by personal delivery, telecopied with confirmed receipt, or sent by certified, registered or express mail, postage pre-paid, or sent by a national next-day delivery service, postage pre- paid, return receipt requested, addressed to the parties at the following addresses, or at any other address as such party may hereafter specify in writing and shall be deemed given when so delivered personally, or telecopied, or if mailed, two (2) days after the date of mailing, or if by national next-day delivery service, on the date after delivery to such service as follows: 3 (i) if to the Company, to: The IXATA Group, Inc. 8989 Rio San Diego Drive San Diego, California 92108 Attention: Robert C. Cuthbertson, Chief Financial Officer with a copy to: Kohrman Jackson & Krantz P.L.L. One Cleveland Center, 20th Floor 1375 East Ninth Street Cleveland, Ohio 44114 Telecopier: 216-621-6536 ATTN: Christopher J. Hubbert, Esq. (ii) if to the Participant, to: Michael W. Wynne 901 Mackall Avenue McLean, Virginia 22101 (c) THE PROVISIONS OF THIS AGREEMENT RELATE SOLELY TO GRANTING OF THE RESTRICTED STOCK AWARD TO THE PARTICIPANT AS OF THE DATE HEREOF AND DO NOT ADDRESS OR RELATE TO ANY CONDITIONS OF THE PARTICIPANT'S EMPLOYMENT WITH THE COMPANY OR ANY OF ITS SUBSIDIARIES. NOTHING IN THIS AGREEMENT SHALL CONFER UPON THE PARTICIPANT ANY RIGHT OR ENTITLEMENT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY OR ANY OF ITS SUBSIDIARIES, NOR INTERFERE IN ANY WAY WITH THE RIGHT OR POWER OF THE COMPANY OR ANY OF ITS SUBSIDIARIES TO TERMINATE THE PARTICIPANT'S EMPLOYMENT. (d) The headings and other captions in this Agreement are for convenience of reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement. (e) No change or modification of this Agreement shall be valid unless the same is in writing and signed by the Company and the Participant. (f) No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person against whom it is sought to be enforced. The failure of any party at any time to insist upon strict performance of any condition, promise, agreement or understanding set forth herein shall not be construed as a waiver or relinquishment of the right to insist upon strict performance of the same or other condition, promise, agreement or understanding at a future time. (g) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective heirs, legal representatives, successors and permitted assigns of the 4 parties hereto. Nothing in this Agreement is intended, and it shall not be construed, to give any person or entity other than the parties hereto any right, remedy or claim under or in respect of this Agreement or any provisions hereof. (h) This Agreement and all rights hereunder shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware applicable to contracts made and to be performed entirely within that State. In the event of any conflict between this Agreement and the Plan, the provisions of the Plan shall govern. (i) This Agreement sets forth all of the agreements, warranties and representations among the parties hereto and thereto with respect to the Restricted Stock Award and the Award Shares, and there are no other promises, agreements, conditions, understandings, representations or warranties, oral or written, express or implied, among them with respect to the Restricted Stock Award and the Award Shares other than as set forth herein. Any and all prior agreements with respect to the Restricted Stock Award are hereby revoked. (j) This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant has executed this Agreement, all as of the date first written above. The IXATA Group, Inc. /s/ Robert Cuthbertson ---------------------------------------------- By Robert Cuthbertson, Chief Financial Officer /s/ Michael W. Wynne ---------------------------------------------- Michael W. Wynne 5 EXHIBIT A --------- ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE The undersigned, being a service-provider to The IXATA Group, Inc. (the "Company"), hereby makes an election pursuant to (S) 83(b) of the Internal Revenue Code with respect to the property described below and supplies the following information in accordance with the provisions of Treasury Regulation Section 1.83(e): 1. The name, address and taxpayer identification number of the undersigned are: Name: Michael W. Wynne Address: 901 Mackall Avenue McLean, Virginia 22101 Taxpayer I.D. No.:_________________________________________________________ 2. Description of the property with respect to which the election is being made: 1.5 million shares of common stock of the Company. 3. Date on which the property was transferred is: December 20, 2000. 4. The taxable year of the taxpayer in which the property was transferred is: December 31, 2000. 5. Nature of restrictions to which the property is subject: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ 6. The fair market value at the time of transfer (determined without regard to any restrictions other than restrictions which by their terms will never lapse) of the property with respect to which this election is being made is $140,700. 7. The taxpayer did not provide any consideration for the transfer of said property. 8. A copy of this statement has been finished to the Company. Dated: _________________, 20___ ____________________________________ Michael W. Wynne 6 EX-4.3 4 dex43.txt LETTER AGREEMENT BETWEEN CO. & ALLEN Exhibit 4.3 [IXATA LETTERHEAD] August 6, 1999 Ms. Cheryl Monblatt 406 Bay Berry Place Encinitas, CA 92024 Dear Ms. Monblatt, As discussed we are pleased to offer you the position of Director of Investor Relations at IXATA.com We are anticipating your start date as August 23, 1999, at a retainer of $5,000 per month. Our understanding is that upon IXATA securing our next round of major funding, your compensation would increase to $105,000 and you would assume these duties on a full time basis. As an incentive, we have agreed you would receive 10,000 shares as upon commencement of your duties, which shares will vest at your first anniversary of employment. Additionally you can purchase up to 25,000 shares at 80% of market price TBD at the most recent 30 day trading period prior to the date of your intention to exercise. During your fist 60 days of employment, we will lay out an incentive stock option plan based on specific performance, to be mutually agreed upon. We are looking forward to having you on board. Sincerely, /s/ Fred Gluckman - ------------------------ Fred Gluckman Chairman of the Board IXATA.com EX-4.4 5 dex44.txt LETTER AGREEMENT BETWEEN CO. & BACHHOFER Exhibit 4.4 [IXATA LETTERHEAD] September 16, 1999 Ms. Lacretia Bachhofer 2250 Regency Point San Antonio, TX 78231 Dear Ms. Bachhofer, Congratulations! On the behalf of IXATA.COM and myself, I would like to inform you that as a result of our recent discussions, we are pleased to offer you a position as Manager, Business Development based upon the following: SALARY: $45,000 per annum PROBATIONARY PERIOD: 90 Days COMMISSIONS & BONUS: No commissions are payable. However, you will be eligible for a bonus program that will be determined within 60 days after completion of your probationary period. STOCK: 5,000 shares will be vested to you upon the successful completion of one year of service. In the event that you fail to complete one year of service, the total value of your shares will be reduced by the prorated value of the difference between your employment start date and your departure date. No shares will be earned until you have completed your probationary period. In addition, you will be vested an additional 1,000 shares of stock for every year of service that you completed up to your fifth year of employment. Stock offerings after your fifth year of employment will be as determined by the Board of Directors of IXATA.COM. STOCK OPTIONS: You will have the right to purchase up to an additional 1,000 shares of stock upon the successful completion of each year of employment up to your fifth year of employment at 80% of the stock value on your employment anniversary date. This stock option is valid for only a ninety-day period of time beginning with the anniversary date of your employment. Stock options after your fifth year of employment will be as determined by the Board of Directors of IXATA.COM. EMPLOYEE BENEFITS: You will be eligible for the same medical, dental, and 401k plans available to all IXATA.COM employees after successful completion of your probationary period. EDUCATIONAL BENEFITS: You will be eligible for tuition reimbursement to an accredited university for company authorized course work with a minimum grade of a "B." Such benefits will become effective after completion of your probationary period. ASSIGNED DUTIES: Your position as Manager, Business Development will be to accomplish assigned sales, marketing, and business development activities consisting of, but not limited to, the following: . Represent the Executive Vice President, Marketing at assigned meetings, demonstrations, and presentations . Coordinate and generate all proposal, follow-up, and contract activities . Assist in the development and continuation of strategic business partnerships . Develop, publish, and maintain a corporate marketing plan . Be responsible for the weekly generation and publication of sales activities reports . Develop, publish, and organize a sales training program for corporate sales staff . Coordinate all actions and activities of the corporate sales staff . Assist the corporate sales staff in facilitating the support and administration of accounts . Work with the Director, Corporate Communications, to design, develop, and publish sales and marketing materials, press releases and articles . Represent the company at assigned association meetings and conventions . Accomplish research and analysis of sales and marketing efforts . Accomplish sales and marketing activities as assigned . Establish and maintain a customer feedback program . Organize and maintain a corporate communication medium for the transmission of information to sales staff . Manage the central database of corporate accounts and prospects SPECIAL CONDITIONS: Pending a decision otherwise, you will be permitted to work from your home. IXATA will coordinate with you to either provide you or reimburse you for the necessary equipment and capabilities to conduct business from your home. 2 OFFER ACCEPTANCE PERIOD: This offer shall remain valid and effective until Friday, September 24, 1999. SUPERVISOR: You will report directly to the Executive Vice President, Marketing. START DATE: October 4, 1999 or earlier as may be mutually agreed upon by both parties. We look forward to your acceptance of this offer and your employment with our company. If you have any questions, please do not hesitate to contact the undersigned at 800-473-6748 or via e-mail at Please indicate your acceptance of this offer below and submit an original signed copy to our office no later than the expiration date of this offer. Best Regards, /s/ Robert A. Steiner - --------------------------- Robert A. Steiner President RAS/mm Accepted /s/ Lacretia Bachhofer - ---------------------- ___________________________ Signature Date ** Vacation and holiday benefits as discussed with Mr. Steiner; November 26th, December 29th-January 8/th/. 3 EX-4.5 6 dex45.txt LETTER AGREEMENT BETWEEN CO. & DIME Exhibit 4.5 [IXATA LETTERHEAD] June 30, 1999 Ms. Maureen Dime San Diego, California 92111 Dear Ms. Dime, Congratulations! As a result of your discussions with the management of IXATA.COM, I am pleased to offer you a position as Sales Manager based upon the following: Salary: $50,000 per annum PROBATIONARY PERIOD: 90 Days STOCK: 5,000 shares will be vested to you upon the successful completion of one year of service. In the event that you fail to complete one year of service, the total value of your shares will be reduced by the prorated value of the difference between your employment time and your departure date. No shares will be earned until you have completed your probationary period. COMMISSIONS & BONUS: No commissions are payable. However, you may be eligible for bonuses based upon your performance. Details will be discussed during your first 90 days. SALES QUOTA: Will be established during your first 30 days of employment BENEFITS: You will be eligible for the same medical, dental, and 401K plans available to all IXATA.COM employees after successful completion of your probationary period. START DATE: To be mutually agreed upon but no later than July 16, 1999. CONTINGENCIES: This offer shall remain valid and effective until Friday, July 2, 1999 and shall be contingent upon a successful reference check and validation of your current salary We look forward to your acceptance of this offer and your employment with our company. If you have any questions, please do not hesitate to contact the undersigned at 949-632-3260 or via e-mail at rsteiner@rfpexpress.com Please indicate your acceptance of this offer below and submit a signed copy to our offices no later than the expiration date of this offer. Best Regards, /s/ Robert A. Steiner - ---------------------------- Robert A. Steiner Executive Vice-President RAS/bs Accepted /s/ Maureen Dime 7-1-1999 - --------------------------------------------------------------- Signature Date 2 EX-4.6 7 dex46.txt LETTER AGREEMENT BETWEEN THE CO. & MANFREDI Exhibit 4.6 [IXATA LETTERHEAD] September 16, 1999 Ms. Luciana Manfredi 640 Camino Del La Reina, #1114 San Diego, CA 92108 Dear Ms. Manfredi, Congratulations! As a result of your discussions with the management of IXATA.COM, I am pleased to offer you a position as Sales Manger based upon the following: Salary: $50,000 per annum PROBATIONARY PERIOD: 90 Days COMMISSIONS & BONUS: No commissions are payable. However, you will be eligible for bonuses based upon your performance. Details will be discussed upon completion of your probationary period. STOCK: 5,000 shares will be vested to you upon the successful completion of one year of service. In the event that you fail to complete one year of service, the total value of your shares will be reduced by the prorated value of the difference between your employment start date and your departure date. No shares will be earned until you have completed your probationary period. STOCK OPTIONS: You will have the right to purchase up to an additional 1,000 shares of stock upon the successful completion of each year of employment up to your fifth year of employment at 80% of the stock value on your employment anniversary date. This stock option is valid for only a ninety-day period of time beginning with the anniversary date of your employment. Stock options after your fifth year of employment will be as determined by the Board of Directors of IXATA.COM. EMPLOYEE BENEFITS: You will be eligible for the same medical, dental, and 401k plans available to all IXATA.COM employees after successful completion of your probationary period. START DATE: To be mutually agreed upon but no later than October 11, 1999. SUPERVISOR: You will report directly to Mr. Joseph Friedmann, National Director of Sales. OFFER ACCEPTANCE PERIOD: This offer shall remain valid and effective until Friday, September 24, 1999 and shall be contingent upon a successful reference check and validation of your current salary. We look forward to your acceptance of this offer and your employment with our company. If you have any questions, please do not hesitate to contact the undersigned at 800-473-6748 or via e-mail at rsteiner@rfpexpress.com. Please indicate your acceptance of this offer below and submit an original signed copy to our offices no later than the expiration date of this offer. Best Regards, /s/ Robert A. Steiner - -------------------------- Robert A. Steiner President RAS/mm Accepted /s/ Luciana Manfred 9/23/99 - -------------------------------- ------------------------------ Signature Date 2 EX-4.7 8 dex47.txt LETTER AGREEMENT BETWEEN CO. & YZAGUIRRE Exhibit 4.7 [IXATA LETTERHEAD] September 23, 1999 Mr. John P. Yzaguirre 3906 Beechwood Lane Dallas, TX 75220 Dear Mr. Yzaguirre, Congratulations! As a result of your discussions with the management of IXATA.COM, I am pleased to offer you a position as Operations Manager based upon the following: SALARY: $50,000 per annum to start, increasing to $55,000 per annum after successful completion of probationary period PROBATIONARY PERIOD: 90 Days STOCK: 5,000 shares will be vested to you upon the successful completion of one year of service. In the event that you fail to complete one year of service, the total value of your shares will be reduced by the prorated value of the difference between your employment time and your departure date. No shares will be earned until you have completed your probationary period. In addition, you will be vested an additional 1,000 shares of stock for every year of service that you complete up to your fifth year of employment. Stock offerings after your fifth year of employment will be as determined by the Board of Directors of IXATA.COM. STOCK OPTIONS: You will have the right to purchase up to an additional 1,000 shares of stock upon the successful completion of each year of employment up to your fifth year of employment at 80% of the stock value on your employment anniversary date. This stock option is valid for only a ninety-day period of time beginning with the anniversary date of your employment. Stock options after your fifth year of employment will be as determined by the Board of Directors of IXATA.COM. EMPLOYEE BENEFITS: You will be eligible for the same medical, dental, and 401k plans available to all IXATA.COM employees after successful completion of your probationary period. SPECIAL BENEFITS: IXATA.COM will provide you a vehicle to use for a period of sixty days effective on your employment start date. The vehicle provided will be at the discretion of IXATA.COM. You will be responsible for all fuel expenses for this vehicle and for adhering to all applicable state and federal driving requirements. MOVING EXPENSES: The company will pay for up to $3,000 for moving expenses. The method for payment of these expenses shall be as mutually agreed upon and such payment shall be documented with verifiable invoices and/or receipts. In addition, IXATA.COM will pay for up to two round trip airfares from San Diego to Dallas to facilitate your movement. Such trips must be requested within seven days after your employment start date and must be completed within 120 days of your employment start date. START DATE: To be mutually agreed upon but no later than October 8, 1999. SUPERVISOR: You will report directly to the office of the President. OFFER ACCEPTANCE PERIOD: This offer shall remain valid and effective until Wednesday, September 29, 1999 and shall be contingent upon a successful reference check and validation of your current salary. We look forward to your acceptance of this offer and your employment with our company. If you have any questions, please do not hesitate to contact the undersigned at 800-473-6748 or via e-mail at rsteiner@rfpexpress.com. Please indicate your acceptance of this offer below and submit an original signed copy to our office no later than the expiration date of this offer. Best Regards, /s/ Robert A. Steiner - -------------------------- Robert A. Steiner President RAS/mm Accepted /s/ John P. Yzaguirre 9/27/99 - -------------------------------- ------------------------ Signature Date 2 EX-5.1 9 dex51.txt OPINION OF KOHRMAN JACKSON & KRANTZ P.L.L. Exhibit 5.1 [LETTERHEAD OF KOHRMAN JACKSON & KRANTZ P.L.L.] March 20, 2001 The IXATA Group, Inc. 8989 Rio San Diego Drive San Diego, California 92108 Re: Registration Statement on Form S-8 of The IXATA Group, Inc. Gentlemen: The IXATA Group, Inc., a Delaware corporation (the "Company"), is filing with the Securities and Exchange Commission a registration statement on Form S-8 (the "Registration Statement"), under the Securities Act of 1933, as amended (the "Act"). The Registration Statement relates to the offering and sale by the Company of up to 7,533,863 shares (the "Shares") of the Company's common stock, par value of $0.001 per share (the "Common Stock"), pursuant to stock options ("Options") granted or to be granted under the 1997 Stock Option Plan, as amended (the "Plan"), and stock grants pursuant to a Restricted Stock Award Agreement between the Company and Michael W. Wynne and Letter Agreements between the Company and Cheryl Monblatt Allen, Lacretia Bachhofer, Maureen Dime, Luciana Manfredi and John Yzaguirre (collectively, the "Grant Agreements"). We have acted as counsel to the Company in connection with the preparation and filing of the Registration Statement. Capitalized terms used in this opinion letter and not otherwise defined have the meanings attributed to them in the Registration Statement. In connection with this opinion letter, we have examined and relied upon the original or a copy, certified to our satisfaction, of (i) the Amended and Restated Certificate of Incorporation and the By-laws of the Company; (ii) resolutions of the Board of Directors of the Company; (iii) the Plan and Amendment No. 1 to the Plan; (iv) the Grant Agreements; and (v) such other documents and instruments as we have deemed necessary for providing this opinion letter. We have assumed the genuineness of all signatures, 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 photostatic copies. We have made such investigations of law as we deem appropriate as a basis for rendering the opinions expressed below, and as to various questions of fact material to the opinions, we have relied, to the extent we deem appropriate, upon representations or certificates of officers or directors of the Company and upon documents, records and instruments furnished to us by the Company, without independently verifying the accuracy of such documents, records and instruments. Based upon the foregoing examination, we are of the opinion that assuming (i) the Company maintains an adequate number of authorized but unissued Shares available for issuance to those persons who exercise Options granted in accordance with the Plan and (ii) the Shares are duly delivered against payment therefor in accordance with the terms of the Plan and the Grant Agreements, the Shares issued pursuant to the exercise of Options granted in accordance with the Plan and pursuant to the Grant Agreements are or will be validly issued, fully paid and non-assessable. We express no opinion other than as to the Federal law of the United States and the General Corporation Law of the State of Delaware. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not admit that we come within the category of persons whose consent is required by Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission thereunder. KOHRMAN JACKSON & KRANTZ P.L.L. /s/ Kohrman Jackson & Krantz P.L.L. ---------------------------------------------- 2 EX-23.2 10 dex232.txt CONSENT OF NATION SMITH HERMES DIAMOND, APC Exhibit 23.2 [LETTERHEAD OF NATION SMITH HERMES DIAMOND] CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS The IXATA Group, Inc. San Diego, California We hereby consent to the incorporation by reference in the Prospectus constituting a part of the Registration Statement of our report dated April 7, 2000 (which contains an explanatory paragraph regarding the Company's ability to continue as a going concern), relating to the consolidated financial statements and schedules of The IXATA Group, Inc. appearing in the Company's Annual Report on Form 10-KSB for the year ended December 31, 1999. We also consent to the reference to us under the caption "Experts" in the Registration Statement. March 16, 2001 San Diego, California /s/ Nation Smith Hermes Diamond - ------------------------------- Nation Smith Hermes Diamond -----END PRIVACY-ENHANCED MESSAGE-----