As filed with the Securities and Exchange Commission on July 9, 2001,
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
- -------------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EXPERTELLIGENCE, INC.
(Exact name of registrant as specified in its charter)
California 95-3506403
(State or other jurisdiction of (I.R.S. Employer
Incorporation or organization) Identification No.)
25 East Ortega Street
Santa Barbara, California 93101
(Address of principal executive office)
CONSULTANT OPTION AGREEMENTS
(Full title of the plans)
- -------------------------------------------
Denison W. Bollay
25 East Ortega Street
Santa Barbara, California 93101
(805) 962-2558
With a copy to:
Bruce W. McRoy, Esq.
Reicker Pfau Pyle McRoy & Herman LLP
1421 State Street
Santa Barbara, California 93101
(Name, address and telephone number
including area code of agent for service)
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CALCULATION OF REGISTRATION FEE
Title and Class of Amt to be Proposed Max Proposed Max Amt of
Securities to be Reg (1) Offer Price perAggregate Offer Reg Fee(2)
Registered Share (2) Price (2)
Common Stock 125,000 $0.01 $1,250 $1.50
(1) This Registration Statement is deemed to include additional shares of
Common Stock issuable under the Agreements to prevent dilution resulting from
future stock splits, dividends or similar transactions.
(2) Calculated pursuant to Rule 457(h).
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The registrant hereby incorporates by reference in this Registration Statement
the following documents previously filed by the registrant with the Securities
and Exchange Commission (the "Commission"):
(1) the registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 2000;
(2) the registrant's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 2000 and March 31, 2001;
(3) the registrant's Current Reports on Forms 8-K filed on
February 13, 2001, March 7, 2001, and May 7, 2001; and
(4) the registrant's Forms 12b-25 filed on February 14, 2001 and
May 16, 2001.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), subsequent to the date of
this Registration Statement shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of the filing of
such documents until such time as there shall have been filed a
post-effective amendment that indicates that all securities
offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Item 4. Description of Securities.
The authorized stock of the Company consists of 21,000,000 shares
of capital stock, consisting of 20,000,000 shares of Common stock,
no par value, and 1,000,000 shares of preferred stock. No shares
of preferred stock have been designated as a particular series and
none of such shares are issued and outstanding.
The holders of Common stock are entitled to one vote for each share
held of record on each matter submitted to a vote of stockholders,
and, upon giving notice required by law, may cumulate their votes in
elections of directors. Subject to preferences that may be applicable
to any shares of Preferred stock outstanding at that time, holders of
Common stock are entitled to receive ratably such dividends as may be
declared by the Board of Directors out of funds legally available
therefore, and, in the event of the liquidation, dissolution, or
winding-up of the Company, are entitled to share ratably in all
assets remaining after payment of liabilities and payment of the
liquidation preference to the holders of the Preferred stock.
Holders of Common stock have no preemptive rights and have no
rights to convert their Common stock into any other securities.
The outstanding Common stock is fully paid and non-assessable.
The shares of Preferred stock may be issued by the Board of Directors
from time to time in one or more series for such consideration and,
within certain limits, with such relative rights and preferences as
the Board may determine. Shares of Preferred stock issued by the
Board of Directors could be utilized, under certain circumstances,
to make an attempt to gain control of the Company more difficult
or time consuming. For example, shares of Preferred stock could
be issued with certain rights which might have the effect of
diluting the percentage of Common stock owned by a significant
shareholder or issued to the purchasers who might side with management
in opposing a takeover bid which the Board of Directors determines is
not in the best interest of the Company and its shareholders.
This provision may be viewed as having possible anti-takeover effects.
A takeover transaction frequently affords shareholders the opportunity
to sell their shares at a premium over current market prices.
Stockholder approval of most actions requires the approval of a majority
of the shares present at a meeting of stockholders, whether in person or
by proxy, assuming a quorum was present. A quorum is the representation at
a meeting of stockholders of more than 50% of the outstanding shares.
California law requires the approval of at least the holders of more
than 50% of the outstanding shares for certain matters, including certain
eorganizations and sales of all or substantially all of the Company's
assets, the dissolution of the Company and amendments to the Certificate
of Incorporation, certain amendments to the Bylaws, and in certain cases,
certain class votes.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 317 of the California General Corporation Law authorizes a court
to award, or a corporation's Board of Directors to grant indemnity to
directors, officers, employees and other agents of the corporation
("Agents") in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including reimbursement
for expenses incurred) arising under the Securities Act of 1933, as amended.
The Board of Directors of the registrant has resolved to indemnify the
officers and directors of the registrant to the full extent permitted
by Section 317 of the California General Corporation Law, and the
registrant's Articles of Incorporation and Bylaws authorize the
registrant to provide for indemnification of officers and directors
to the same extent. This indemnification limits the personal monetary
liability of directors in performing their duties on behalf of the
registrant, to the extent permitted by the California General
Corporation Law, and permits the registrant to indemnify its
directors and officers against certain liabilities and expenses,
to the extent permitted by the California General Corporation Law.
This indemnification is based upon the indemnification agreements,
which were approved by the registrant's shareholders at the annual meeting of
shareholders held on August 15, 1996.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
The following documents are filed as a part of this registration statement.
Exhibit No.
Description
4.1 Form of Consulting Agreement *
4.2 Form of Stock Option Agreement *
5.1 Opinion of Reicker, Clough, Pfau, Pyle, McRoy & Herman LLP*
23.1 Consent of McGowan Guntermann*
23.2 Consent of Reicker, Clough. Pfau, Pyle, McRoy & Herman, LLP
(Included in opinion in Exhibit 5.1)*
* Filed herewith
Item 9. Undertakings.
A. The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement to include any
aterial information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each 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; and
(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 Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of
the 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 of whether such indemnification
by it is against public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Santa Barbara, State of California on July 9, 2001.
EXPERTELLIGENCE, INC.
By: /s/ Denison W. Bollay
-------------------------------------
Denison W. Bollay
President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and
on the dates indicated.
Name
Title
Date
/s/ Denison W. Bollay
Denison W. Bollay
President and Director
July 9, 20001
/s/ Robert W. Reali
Robert W. Reali
Chief Operating Officer, Secretary
and Director
July 9, 20001
/s/ Charles House
Charles House
Director
July 9, 20001
/s/ William Van Beurden
William Van Beurden
Director
July 9, 20001
/s/ Dr. Souhail Toubia
Dr. Souhail Toubia
Director
July 9, 20001
/s/ Steve Ketchum
Steve Ketchum
Director
July 9, 20001
/s/ C. Keith Rooker
C. Keith Rooker
Director
July 9, 20001
INDEX TO EXHIBITS
Exhibit No.
Description
4.1 Form of Consulting Agreement *
4.2 Form of Stock Option Agreement *
5.1 Opinion of Reicker, Clough, Pfau, Pyle, McRoy & Herman LLP*
23.1 Consent of McGowan Guntermann*
23.2 Consent of Reicker, Clough. Pfau, Pyle, McRoy & Herman, LLP
(Included in opinion in Exhibit 5)*
*Filed herewith
Exhibit 4.1
Consulting Agreement
ExperTelligence, Inc. ("EXGP") hereby retains ____________________________
("CONSULTANT") for a six (6) week term beginning June 18, 2001 through
July 31, 2001, to perform the services described below, and CONSULTANT
hereby accepts such retention. EXGP shall pay CONSULTANT compensation
for his/her performance of services during the foregoing term consisting
of the Base Compensation described in Section 2 below, plus the Bonus described
in Section 3 below plus the Health Benefits currently being received as
an employee of the Company.
1. Services.
1.1 CONSULTANT agrees to be available at those places in Santa Barbara
County and times during normal business hours to which CONSULTANT and EXGP
mutually agree for the purposes of performing services under this Agreement.
The general subject matter and the general type of services that EXGP may
request CONSULTANT to perform, and which CONSULTANT shall perform, under
this Agreement shall consist of ____________________________. CONSULTANT
shall provide such services as an officer of EXGP reasonably may request from
time to time. CONSULTANT agrees to use CONSULTANT's best efforts,
knowledge, and experience to faithfully perform all of his/her services
under this Agreement.
1.2 It is the intent of EXGP and CONSULTANT to establish by this Agreement
a relationship of independent contracting parties. It is expressly understood
by each party that CONSULTANT, as an independent contractor, is not an
employee of EXGP and shall not be entitled to any of the rights and benefits
or be subject to any of the terms and conditions of employment, which apply
enerally to EXGP employees.
1.3 Simultaneously with CONSULTANT's execution of this Agreement,
CONSULTANT shall execute and deliver to EXGP its EXPERTELLIGENCE,
INC. STANDARD NON-DISCLOSURE AGREEMENT, a copy of which is
attached to this Agreement.
2. Base compensation
2.1 Compensation will accrue and will be paid through the grant of
Nonqualified Stock Options as described in section 2.2 at a rate equal to
CONSULTANT 's current salary.
2.2 At the end of each semi-monthly period, EXGP will grant to CONSULTANT a
Nonqualified Stock Option with the following terms:
a. Number of shares equal to the quotient obtained by dividing the accrued
compensation by the average bid over each semi-monthly period.
b. Exercise price of $0.01 per share (subject to typical anti-dilution
protection)
c. The option will be fully vested.
d. The option may be exercised at any time on or before June 30, 2003.
e. EXGP will file an S-8 registration statement to permit the public
resale of the shares acquired on exercise of the option. The Company is
filing this now and is expected to be in effect by July 15, 2001.
f. At any time after the occurrence of a Triggering Event described
in Section 4 in which EXGP receives cash proceeds, CONSULTANT may require
EXGP to use up to 80% of those cash proceeds to settle all or part of the
option by paying the optionee cash proportion thereof up to an amount
equal to the accrued compensation.
g. If an Investment Event occurs, EXGP will pay the compensation as
described in section 5.1.
h. In the event of Triggering Event or Investment Event EXGP will offer to
re-employ CONSULTANT at his/her full semi-monthly salary.
3. Bonus compensation
3.1 Within five (5) business days after the occurrence of a Triggering
Event described in Section 4 or Investment Event in Section 5, EXGP will pay
CONSULTANT a bonus in the following amount:
a. If CONSULTANT is performing services for EXGP on the date of the
occurrence of the event, EXGP shall pay a bonus equal to 100% of the
amount of the compensation under Section 2.1 above.
b. If CONSULTANT is not performing services for EXGP on the date of the
occurrence of the event, EXGP shall pay a cash bonus equal to 50% of the
amount of the accrued compensation under Section 2.1 above.
3.2 If the Triggering Event results in cash proceeds to EXGP of at least
$500,000 the bonus will be paid in cash.
3.3 If the Triggering Event does not result in cash proceeds to EXGP of at
least $500,000, EXGP may pay the bonus in cash, in securities received by EXGP
in the Triggering Event, or a combination thereof.
3.4 If the Triggering Event is the sale of EXGP, EXGP may pay the bonus in
cash and securities received by EXGP in the sale.
3.5 If an Investment Event EXGP will pay the bonus as described in section 5.1.
4. Triggering Events The relevant triggering events are as follows:
4.1 Receipt of cash or stock into EXGP bank or business account from EXGP's
sale of any of its subsidiaries or divisions, including 3DStockCharts.com,
ExperClick.com, WebData and ExperForms;
4.2 Sale of EXGP.
5. Investment Event
5.1 EXGP's closing of an equity investment in EXGP in excess of $100,000. Upon
closing, up to 20% of the cash raised will be used to pay accrued amounts of
consulting and bonus. The remainder will be paid with each paycheck. Each
paycheck will be 50% larger than normal until accrued consulting and bonus is
paid off.
6. ACKNOWLEDGMENT OF READING.
6.1 CONSULTANT acknowledges that he/she has read and understands this
Agreement and has received a copy of it.
"CONSULTANT"
________________________________________
Address for Notice:
____________________________________
_____________________, California 93____
"EXGP"
ExperTelligence, Inc.
By:_____________________________________
Denison W. Bollay, President
Address for Notice:
25 East Ortega Street
Santa Barbara, California 93101
Attn: President
EXPERTELLIGENCE, INC. STANDARD NON-DISCLOSURE AGREEMENT
THIS AGREEMENT (the "Agreement") is made between EXPERTELLIGENCE, INC.
a California corporation (ExperTelligence) and ("INDIVIDUAL") and entered
into this day of 2001.
In consideration of the mutual promises and covenants contained in this
Agreement, ExperTelligence's disclosure of confidential information to
INDIVIDUAL, and any payments made or to be made by ExperTelligence or
INDIVIDUAL, the parties hereto agree as follows:
1. Confidential Information and Confidential Materials
(a) "Confidential Information" means nonpublic information that
ExperTelligence designates as being confidential or which, under the
circumstances surrounding disclosure, ought to be treated as confidential.
"Confidential Information" includes, without limitation, information
relating to released or unreleased ExperTelligence software or hardware
products, the marketing or promotion of any ExperTelligence product,
ExperTelligence's business policies or practices, and information
received from others that ExperTelligence is obligated to treat as
confidential. Confidential Information disclosed to INDIVIDUAL by any
ExperTelligence Subsidiary and/or agents is covered by this Agreement.
(b) Confidential Information shall not include any information
that: (i) is or subsequently becomes publicly available without
INDIVIDUAL'S breach of any obligation owed ExperTelligence; (ii) became
known to INDIVIDUAL prior to ExperTelligence's disclosure of such
information to INDIVIDUAL; (iii) became known to INDIVIDUAL from a
source other than ExperTelligence other than by the breach of an
obligation of confidentiality owed to ExperTelligence; or (iv) is
independently developed by INDIVIDUAL. (c) "Confidential Materials
" shall mean all tangible materials containing Confidential Information,
including without limitation written or printed documents and computer disks
or tapes, whether machine or user readable.
2. Restriction
(a) INDIVIDUAL shall not disclose any Confidential Information to
third parties for five (5) years following the date of its disclosure by
ExperTelligence to INDIVIDUAL, except to INDIVIDUAL's consultants as
provided below. However, INDIVIDUAL may disclose Confidential Information
in accordance with judicial or other governmental order, provided INDIVIDUAL
shall give ExperTelligence reasonable notice prior to such disclosure and
shall comply with any applicable protective order or equivalent.
(b) INDIVIDUAL shall take reasonable security precautions, at
least as great as the precautions it takes to protect its own confidential
information, to keep confidential the Confidential Information INDIVIDUAL
may disclose Confidential Information or Confidential Materials only to
INDIVIDUAL's employees or consultants on a need-to-know basis. INDIVIDUAL
shall execute appropriate written agreements with its employees and
consultants sufficient to enable it to comply with all the provisions of
this Agreement.
(c) Confidential Information and Confidential Materials
may be disclosed, reproduced, summarized or distributed only in pursuance
of INDIVIDUAL's business relationship with ExperTelligence, and only as
otherwise provided hereunder. INDIVIDUAL agrees to segregate all such
Confidential Materials from the confidential materials of others in
order to prevent commingling.
(d) INDIVIDUAL may not reverse engineer, decompile or disassemble any
software disclosed to INDIVIDUAL.
3. Rights and Remedies
(a) INDIVIDUAL shall notify ExperTelligence immediately upon discovery
of any unauthorized use or disclosure of Confidential Information and/or
Confidential Materials, or any other breach of this Agreement by INDIVIDUAL,
and will cooperate with ExperTelligence in every reasonable way to help
ExperTelligence regain possession of the Confidential
Information and/or Confidential Materials and prevent its further unauthorized
use.
(b) INDIVIDUAL shall return all originals, copies, reproductions and
summaries of Confidential Information and Confidential Materials at
ExperTelligence's request or, at ExperTelligence's option, certify destruction
of the same.
(c) INDIVIDUAL acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure of Confidential Information
and that ExperTelligence shall be entitled, without waiving any other rights or
remedies, to such injunctive or equitable relief as may be deemed proper
by a court of competent jurisdiction.
(d) ExperTelligence may visit INDIVIDUAL's premises, with reasonable
prior notice and during normal business hours, to review INDIVIDUAL's
compliance with the terms of this Agreement.
4. Miscellaneous
(a) All Confidential Information and Confidential Materials are and
shall remain the property of ExperTelligence. By disclosing information
to INDIVIDUAL, ExperTelligence does not grant any express or implied right
to INDIVIDUAL to or under ExperTelligence patents, copyrights, trademarks,
or trade secret information. (b) If ExperTelligence provides pre-release
software as Confidential Information or Confidential Materials under this
Agreement, such pre-release software is provided "as is" without warranty
of any kind. INDIVIDUAL agrees that neither ExperTelligence nor its
suppliers shall be liable for any damages whatsoever relating to INDIVIDUAL's
use of such pre-release software.
(c) Any software and documentation provided under this Agreement is
provided to INDIVIDUAL with RESTRICTED RIGHTS. Use, duplication, or
disclosure by the Government is subject to restrictions as set forth in
subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software
clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable.
Manufacturer is ExperTelligence, Inc., 203 Chapala Street, Santa Barbara,
CA 93101. (d) INDIVIDUAL agrees that it does not intend not will it,
directly or indirectly, export or transmit (i) any Confidential Information or
Confidential Materials or (ii) any product (or any part thereof), process, or
service that is the direct product of the Confidential Information or
Confidential Materials to the People's Republic of China, Afghanistan, or
any group Q, S, W, Y, or Z country specified in Supplement No. 1 of
Section 770 of the Export Administration Regulations or to any other
country to which such export or transmission is restricted by regulation
or statute, without the prior written consent, if required, of the Office
of Export Administration of the U.S. Department of Commerce or such other
governmental entity as may have jurisdiction over such export or transmission.
(e) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and merges all prior discussions
between them as Confidential Information. It shall not be modified except
by a written agreement dated subsequent to the date of this agreement and
signed by both parties. None of the provisions of this Agreement shall
be deemed to have been waived by any act or acquiescence on the part of
ExperTelligence, its agents, or employees, but only by an instrument
in writing signed by an authorized officer of ExperTelligence.
No waiver of any provision of this agreement shall constitute a waiver
of any other provision(s) or of the same provision on another occasion.
(f) If either ExperTelligence or INDIVIDUAL employs attorneys to
enforce any rights arising out of or relating to this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys' fees.
This Agreement shall be construed and controlled by the laws of the State
of California, and INDIVIDUAL further consents to jurisdiction by the
state and federal courts sitting in the State of California. Process
may be served on either party by U.S. Mail, postage prepaid, certified or
registered, return receipt requested, or by such other method as is
authorized by the California Long Arm Statute.
(g) Subject to the limitations set forth in this Agreement,
this Agreement will inure to the benefit of and be finding upon the
parties, their successors and assigns.
(h) If any provision of this Agreement shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable,
the remaining provisions shall remain in full force and effect.
(i) All obligations created by this Agreement shall survive change
or termination of the parties' business relationship.
5. Suggestions and Feedback
ExperTelligence may from time to time request suggestions, feedback or other
information from INDIVIDUAL concerning Confidential Information or on
released or unreleased ExperTelligence software or hardware. Nay suggestions,
feedback or other disclosures made by INDIVIDUAL are and shall be entirely
voluntary on INDIVIDUAL's part and shall to create any obligations on
the part of ExperTelligence or a confidential relationship between INDIVIDUAL
and ExperTelligence. ExperTelligence shall be free to disclose and use
INDIVIDUAL's suggestions, feedback, or other information as ExperTelligence
sees fit, entirely without obligation of any kind to INDIVIDUAL.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
INDIVIDUAL:
Address:
By:
Name:
Title:
Date:
EXPERTELLIGENCE, INC.
By:
Name:
Title:
Date:
ExperTelligence Contact:
Exhibit 4.2
ExperTelligence, Inc.
Stock Option Agreement
(Consultant)
This confirms the grant by ExperTelligence, Inc. (the "Company") of a stock
option to the Recipient identified below ("Recipient") on the terms and
conditions set forth below.
1. Name of Recipient. _____________________________________________________
2. Relationship to Company.
Consultant x
3. Date of Grant. ________________________
4. Number of Shares. ________________ shares of Common Stock
5. Exercise Price. One Cent ($0.01) per share.
6. Type of Option. For tax purposes, the Option is a Non-Qualified
Stock Option.
7. Term of Option. The term of the Option will begin as of the date of
grant set forth above and will expire Two (2) years from date of grant.
8. Vesting Schedule. Recipient's interest in the Option is fully vested as
of the date of grant.
9. Restriction on Transfer of Option. Recipient may not transfer all or any
portion of his/her interest in the Option other than by will or the laws of
descent and distribution.
10. Changes in Capital Stock. The number of shares of Common Stock
covered by the Option and the Exercise Price of the Option shall be
appropriately adjusted in the event of (a) a stock split, reverse
stock split, stock dividend, combination or reclassification of the
Common Stock, or similar change in the capital structure of the Company
and (b) the Company's sale of all or substantially all of its assets,
the merger, consolidation or other reorganization of the Company
as a result of which the Company is not the surviving entity.
11. Spousal Consent. If Recipient is married, Recipient shall have his/her
spouse execute and deliver to the Company a Spousal Consent in the form
attached hereto.
12. Employment Relationship. Nothing in this Agreement shall confer upon
Recipient any right to continue as an consultant to the Company or shall
interfere in any way with any right of the Company to terminate Recipient's
retention at any time. Recipient acknowledges that notwithstanding anything
to the contrary in any agreement regarding his or her services to the Company,
whether written or oral, express or implied, Recipient's rights with respect
to the shares of Common Stock covered by this Option shall be determined
solely in accordance with and on the terms and conditions of this Agreement.
13. Disclaimer. Nothing in this Agreement, nor any action taken by the
Company, or any officer, director, employee or agent of the Company, shall
be deemed to be legal or tax advice to Recipient with respect to any matter,
including, but not limited to, the tax consequences of Recipient's receipt
or exercise of the Option or Recipient's transfer of any of the shares of
Common Stock acquired upon exercise of the Option.
"COMPANY":
EXPERTELLIGENCE, INC.,
a California corporation
By:___________________________
Address of the Company:
25 East Ortega Street
Santa Barbara, CA 93101
Attn: President
"RECIPIENT":
______________________________
Signature of Recipient
Address of Recipient:
______________________________
______________________________
______________________________
CONSENT OF SPOUSE
I acknowledge that I have read the foregoing Stock Option Agreement
(the "Agreement") and the 2000 Equity Participation Plan which is a part of
the Agreement, and that I know their contents. I am aware that the Option
will vest over a period of time. I hereby approve of the provisions of the
Agreement and agree that I will take no action at any time to hinder
operation of the Agreement.
Date:_____________________ ____________________________________,
spouse of _________________________
NOTICE OF
OPTION EXERCISE
The undersigned hereby elects to exercise the stock option as described below:
1. Name of Optionee: ___________________________________________
2. Date on which option was granted: ________________________________
3. Number of shares being purchased (that is, the number of shares for which
option is being exercised): __________________________________________________
4. Option price per share: $_________________________________________
5. Total amount required for this exercise (item 3 multiplied by item 4):
$_______
6. Method of payment of option exercise price (select one):
_______ Enclosing check payable to ExperTelligence, Inc. for exercise price.
_______ Enclosing certificate(s) for ___________ shares of
ExperTelligence, Inc. common stock having a value equal to the exercise price.
_______ Enclosing affidavit attesting to ownership of ____________ shares of
ExperTelligence, Inc. common stock having a value equal to the exercise price.
_______ Enclosing form directing broker to pay exercise price.
7. Method of satisfying tax withholding obligation (select one). If,
in item 6 above, you selected payment of the option price through a broker,
disregard this item 7. Withholding will be paid with proceeds from the
broker.)
_______ Enclosing check payable to ExperTelligence, Inc. for withholding
amount.
_______ Enclosing certificate(s) for ___________ shares of
ExperTelligence, Inc. common stock having a value equal to the withholding
amount.
_______ Enclosing affidavit attesting to ownership of ___________ shares of
ExperTelligence, Inc. common stock having a value equal to the withholding
amount.
Dated: _____________ ___________________________________________
Signature of option holder
___________________________________________
Optionee's Social Security Number
Notice of Option Exercise Received:
ExperTelligence, Inc.
By:_________________________________
This ______ day of ____________________
Exhibit 5.1 Letterhead
of
Reicker Pfau Pyle McRoy and Herman LLP
June 29, 2001
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
Reference is made to the registration under the Securities Act of 1933
(the "Act") of an aggregate of 125,000 shares (the "Shares") of Common Stock
of ExperTelligence, Inc. (the "Company") issuable pursuant to the Company's
Consulting Agreements.
We have examined or considered originals or copies, certified or
otherwise identified to my satisfaction, of the Company's charter documents,
the Consulting Agreements, records of relevant corporate proceedings with
respect to the offering of the Shares and such other documents, instruments
and corporate records as we have deemed necessary or appropriate for the
expression of the opinions contained herein. We have also reviewed the
Company's Registration Statement on Form S-8 (the "Registration Statement")
to be filed with the Securities and Exchange Commission with respect to the
Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the
conformity to original documents of all records, certificates and other
instruments submitted to us as copies, the authenticity and completeness
of the originals of those records, certificates and other instruments
submitted to us as copies and the correctness of all statements of fact
contained in all records, certificates and other instruments that we have
examined.
Based on the foregoing and having regard for such legal consideration as
we have deemed relevant, we are of the opinion that the Shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Consulting Agreements, will be duly and validly issued, fully paid
and nonassessable.
The foregoing opinion is limited to the federal laws of the United States
of America and the California General Corporate Law, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Reicker Pfau Pyle McRoy & Herman, LLP
EXHIBIT 23.1
Letterhead of McGowan Guntermann
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
ExperTelligence, Inc.
We consent to incorporation by reference in the Registration Statement on
Form S-8 pertaining to the grant of the Non-Qualified Stock Options to
purchase up to 125,000 shares of Common Stock granted under Consulting
Agreements of our report dated November 16, 2000, relating to the consolidated
balance sheets of ExperTelligence, Inc., as of September 30, 2000 and 1999, and
the related consolidated statements of operations, changes in stockholders'
equity and cash flows for the years then ended, which report appears in the
September 30, 2000 Annual Report on Form 10-K of ExperTelligence, Inc.
MCGOWAN GUNTERMANN
Santa Barbara, California
June 28, 2001
Exhibit 23.2
Consent of Reicker, Clough, Pfau, Pyle, McRoy & Herman, LLP (Included in
opinion in Exhibit 5.1)
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