<PAGE> 1
As filed with the Securities and Exchange Commission on September 8, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MESSAGEMEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0612860
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
6060 SPINE ROAD
BOULDER, COLORADO 80301
(303) 440-7550
(Address of Principal Executive Offices)
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DECISIVE TECHNOLOGY CORPORATION 1996 STOCK OPTION PLAN
JON CLARK AGREEMENT NO.1
STUART OBERMANN AGREEMENT NO.1
RANDALL BACHMEYER AGREEMENT NO.1
RANDY BACHMEYER AGREEMENT NO.2
KIM BROWER AGREEMENT
CHRIS BUSS AGREEMENT
SIMONE CAMPBELL AGREEMENT
JON CLARK AGREEMENT NO.2
DAVID CROOM AGREEMENT
JEANIE DUMONT AGREEMENT
DANIEL FOSTER AGREEMENT
MICHAEL LEE AGREEMENT
DESIREE' MAURICE AGREEMENT
MARCUS MEAD AGREEMENT
MIKE MORGAN AGREEMENT
STUART OBERMANN AGREEMENT NO.2
KRISTENE RENTERIA AGREEMENT
WALTER THAMES AGREEMENT
(Full Title Of The Plans)
<PAGE> 2
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A. LAURENCE JONES
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MESSAGEMEDIA, INC.
6060 SPINE ROAD
BOULDER, COLORADO 80301
(303) 440-7550
(NAME AND ADDRESS OF AGENT FOR SERVICE)
--------------------------------------
COPIES TO:
JAMES H. CARROLL, ESQ.
KEVIN M. GALLIGAN, ESQ.
COOLEY GODWARD LLP
2595 CANYON BOULEVARD, SUITE 250
BOULDER, COLORADO 80302-6737
(303) 546-4000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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PROPOSED PROPOSED
AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED PER SHARE (1)(2) PRICE (1)(2) FEE (3)
- ----------------------------------------------------- ---------- ---------------- ------------------ ------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Decisive 466,818 $ 2.69 $ 1,255,792.26 $ 349.11
Technology Corporation 1996 Stock Option Plan
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Jon Clark 21,504 $ 2.33 $ 50,104.32 $ 13.93
Agreement No.1
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Stuart Obermann 107,521 $ 2.33 $ 250,523.93 $ 69.65
Agreement No.1
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Randall Bachmeyer 43,008 $ 3.49 $ 150,097.92 $ 41.73
Agreement No.1
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Randy Bachmeyer 182,442 $ 0.94 $ 171,495.48 $ 47.68
Agreement No.2
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Kim Brower 2,150 $ 0.94 $ 2,021.00 $ 0.56
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Chris Buss 19,353 $ 0.94 $ 18,191.82 $ 5.06
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Simone Campbell 3,225 $ 0.94 $ 3,031.50 $ 0.84
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Jon Clark 144,551 $ 0.94 $ 135,877.94 $ 37.77
Agreement No.2
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the David Croom 6,451 $ 0.94 $ 6,063.94 $ 1.69
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Jeanie DuMont 4,300 $ 0.94 $ 4,042.00 $ 1.12
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Daniel Foster 5,591 $ 0.94 $ 5,255.54 $ 1.46
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Michael Lee 8,601 $ 0.94 $ 8,084.94 $ 2.25
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Desiree' Maurice 9,676 $ 0.94 $ 9,095.44 $ 2.53
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Marcus Mead 4,300 $ 0.94 $ 4,042.00 $ 1.12
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Mike Morgan 2,150 $ 0.94 $ 2,021.00 $ 0.56
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Stuart Obermann 103,091 $ 0.94 $ 96,905.54 $ 26.94
Agreement No.2
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Kristene Renteria 4,300 $ 0.94 $ 4,042.00 $ 1.12
Agreement
- ----------------------------------------------------- --------- --------- -------------- --------
Common Stock to be issued under the Walter Thames 9,461 $ 0.94 $ 8,893.34 $ 2.47
Agreement
===================================================== ========= ========= ============== ========
Total 1,148,493 $ 1.90 $ 2,185,581.91 $ 607.59
===================================================== ========= ========= ============== ========
</TABLE>
<PAGE> 3
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(1) Estimated in accordance with Rule 457(h) of Regulation C solely for the
purpose of calculating the registration fee.
(2) The proposed maximum aggregate offering price is computed based upon
the exercise price of each outstanding option under the Decisive
Technology Corporation 1996 Stock Option Plan (the "Decisive Plan"),
the Jon Clark Agreement No. 1, the Stuart Obermann Agreement No. 1, and
the Randall Bachmeyer Agreement No. 1 (collectively, the "Performance
Options"), and the Randy Bachmeyer Agreement No. 2, the Kim Brower
Agreement, the Chris Buss Agreement, the Simone Campbell Agreement, the
Jon Clark Agreement No. 2, the David Croom Agreement, the Jeanie DuMont
Agreement, the Daniel Foster Agreement, the Michael Lee Agreement, the
Desiree' Maurice Agreement, the Marcus Mead Agreement, the Mike Morgan
Agreement, the Stuart Obermann Agreement No. 2, the Kristene Renteria
Agreement, and the Walter Thames Agreement (collectively, the "$0.94
Option Agreements"). The weighted average exercise price of the shares
subject to outstanding options under the plans or agreements registered
on this Form S-8 are as follows: the Decisive Plan is $2.69 per share,
the Jon Clark Agreement No. 1 is $2.33 per share, Stuart Obermann
Agreement No. 1 is $2.33 per share, Randall Bachmeyer Agreement No. 1
is $3.49 per share, and each of the $0.94 Option Agreements is $0.94
per share.
(3) Amount of Registration Fee was calculated pursuant to Section 6(b) of
the Securities Act of 1933, which requires that the fee be calculated
by multiplying the maximum aggregate offering price amount by 0.000278.
The shares registered hereunder will be issued upon the exercise of stock
options that were assumed by MessageMedia, Inc., a Delaware corporation (the
"Registrant"), pursuant to (1) that certain Agreement and Plan of Reorganization
among the Registrant, Revnet Systems, Inc., an Alabama corporation ("Revnet"),
and MM1 Acquisition Corporation, an Alabama corporation, entered into as of July
22, 1999 and (2) that certain Agreement and Plan of Reorganization among the
Registrant, Decisive Technology Corporation, a California corporation
("Decisive"), and MM2 Acquisition Corporation, a Delaware corporation, entered
into as of July 27, 1999. These options were originally granted to employees of
Revnet pursuant to various stock option agreements and employees of Decisive
under its 1996 Stock Option Plan.
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<PAGE> 4
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by MessageMedia, Inc. (the "Company" or
the "Registrant") with the Securities and Exchange Commission are incorporated
by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1999 and June 30, 1999;
(c) The Company's Current Reports on Form 8-K filed with the SEC
on December 23, 1998 (as amended on February 19, 1999), April
5, 1999 and August 24, 1999;
(d) The description of the Company's common stock set forth in the
Registration Statement on Form 8-A, dated November 19, 1996;
and
(e) The Company's Definitive Proxy Statement dated April 28, 1999
for the 1999 annual meeting of stockholders held on May 28,
1999.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation shall have the power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have the power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right
4
<PAGE> 5
of the corporation to procure a judgment in its favor...[by reason of the
person's service in one of the capacities specified in the preceding sentence]
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense
which the Court of Chancery and such other court shall deem proper."
The Company's Certificate of Incorporation states that to the fullest
extent permitted by the DGCL, no director of the Registrant shall be personally
liable to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director.
The Registrant's Bylaws provide that the Company may indemnify each
person who is or was a director of the Company to the full extent permitted by
the DGCL. Such Bylaws also provide that the Registrant may, but is not required
to, indemnify its employees and agents (other than directors and officers) to
the extent and in the manner permitted by the DGCL.
The Registrant has entered into an indemnification agreement with each
of its directors and officers and intends to maintain insurance for the benefit
of its directors and officers insuring such persons against certain liabilities,
including liabilities under the securities laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
4.1 Decisive Technology Corporation 1996 Stock Option Plan.
4.2 Form of Incentive Stock Option Agreement used under Decisive
Technology Corporation. 1996 Stock Option Plan.
4.3 Jon Clark Agreement No. 1
4.4 Stuart Obermann Agreement No. 1
4.5 Randall Bachmeyer Agreement No. 1
4.6 Randy Bachmeyer Agreement No. 2
4.7 Kim Brower Agreement
4.8 Chris Buss Agreement
4.9 Simone Campbell Agreement
5
<PAGE> 6
4.10 Jon Clark Agreement No. 2
4.11 David Croom Agreement
4.12 Jeanie DuMont Agreement
4.13 Daniel Foster Agreement
4.14 Michael Lee Agreement
4.15 Desiree' Maurice Agreement
4.16 Marcus Mead Agreement
4.17 Mike Morgan Agreement
4.18 Stuart Obermann Agreement No. 2
4.19 Kristene Renteria Agreement
4.20 Walter Thames Agreement
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement
24 Power of Attorney is contained on the signature pages.
ITEM 9. UNDERTAKINGS.
The Registrant hereby undertakes:
(a) 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;
(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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) 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
6
<PAGE> 7
furnished to the Securities and Exchange Commission pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in
the Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
The Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
7
<PAGE> 8
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 the City of Boulder, State of Colorado, on the 7th day of
September 1999.
MESSAGEMEDIA, INC.
By: /s/ A. LAURENCE JONES
-----------------------
A. Laurence Jones
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints A. Laurence Jones and Mary Beth Loesch,
his or her true and lawful attorneys-in-fact each acting alone, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead in any and all capacities to sign any or all amendments (including
post-effective amendments) to this registration statement, and any registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933 in
connection with the registration under the Securities Act of 1933 of equity
securities of MessageMedia, Inc. and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, 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 on behalf of the
Registrant in the capacities on this 7th day of September 1999.
SIGNATURE TITLE
Co-Chairman of the Board of Directors
- --------------------
Bradley A. Feld
/s/ Gerald A. Poch Co-Chairman of the Board of Directors
- --------------------
Gerald A. Poch
/s/ A Laurence Jones President, Chief Executive Officer
- --------------------- and Director
A. Laurence Jones (Principal Executive, Financial and Accounting Officer)
/s/ Dennis J. Cagan Director
- ---------------------
Dennis J. Cagan
/s/ R. Terry Duryea Director
- ---------------------
Terry Duryea
8
<PAGE> 9
Director
- ---------------------
Ronald D. Fisher
/s/ Pamela H. Patsley Director
- ---------------------
Pamela H. Patsley
/s/ Gary E. Rieschel Director
- ---------------------
Gary E. Rieschel
9
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1 Decisive Technology Corporation 1996 Stock Option Plan.
4.2 Form of Incentive Stock Option Agreement used under Decisive
Technology Corporation. 1996 Stock Option Plan.
4.3 Jon Clark Agreement No. 1
4.4 Stuart Obermann Agreement No. 1
4.5 Randall Bachmeyer Agreement No. 1
4.6 Randy Bachmeyer Agreement No. 2
4.7 Kim Brower Agreement
4.8 Chris Buss Agreement
4.9 Simone Campbell Agreement
4.10 Jon Clark Agreement No. 2
4.11 David Croom Agreement
4.12 Jeanie DuMont Agreement
4.13 Daniel Foster Agreement
4.14 Michael Lee Agreement
4.15 Desiree' Maurice Agreement
4.16 Marcus Mead Agreement
4.17 Mike Morgan Agreement
4.18 Stuart Obermann Agreement No. 2
4.19 Kristene Renteria Agreement
4.20 Walter Thames Agreement
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Cooley Godward LLP is contained in Exhibit 5.1
to this Registration Statement
24 Power of Attorney is contained on the signature pages.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
DECISIVE TECHNOLOGY CORPORATION
1996 STOCK OPTION PLAN
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to Employees and Consultants of
the Company and its Subsidiaries and to promote the success of the Company's
business. Options granted under the Plan may be incentive stock options (as
defined under Section 422 of the Code) or nonstatutory stock options, as
determined by the Administrator at the time of grant of an option and subject to
the applicable provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees
appointed pursuant to Section 4 of the Plan.
(b) "Applicable Laws" means the legal requirements relating to
the administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code and the applicable laws of any
foreign country or jurisdiction where Options or Stock Purchase Rights will be
or are being granted under the Plan.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means a Committee appointed by the Board of
Directors in accordance with Section 4 of the Plan.
(f) "Common Stock" means the Common Stock of the Company.
(g) "Company" means Decisive Technology Corporation, a
California corporation.
(h) "Consultant" means any person who is engaged by the
Company or any Parent or Subsidiary to render consulting or advisory services
and is compensated for such services, and any director of the Company whether
compensated for such services or not. If and in the event the Company registers
any class of any equity security pursuant to the Exchange Act, the term
Consultant shall thereafter not include directors who are not compensated for
their services or are paid only a director's fee by the Company.
(i) "Continuous Status as an Employee or Consultant" means
that the employment or consulting relationship with the Company, any Parent, or
Subsidiary, is not interrupted or terminated. Continuous Status as an Employee
or Consultant shall not be considered interrupted in the case of (i) any leave
of absence approved by the Company or (ii) transfers between locations of the
Company or between the Company, its Parent, any Subsidiary,
<PAGE> 2
or any successor. A leave of absence approved by the Company shall include sick
leave, military leave, or any other personal leave approved by an authorized
representative of the Company. For purposes of Incentive Stock Options, no such
leave may exceed 90 days, unless reemployment upon expiration of such leave is
guaranteed by statute or contract, including Company policies. If reemployment
upon expiration of a leave of absence approved by the Company is not so
guaranteed, on the 91st day of such leave any Incentive Stock Option held by the
Optionee shall cease to be treated as an Incentive Stock Option and shall be
treated for tax purposes as a Nonstatutory Stock Option.
(j) "Employee" means any person, including Officers and
directors, employed by the Company or any Parent or Subsidiary of the Company.
The payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(l) "Fair Market Value" means, as of any date, the value of
Common Stock determined as follows:
(i) If the Common Stock is listed on any established
stock exchange or a national market system, including without limitation the
Nasdaq National Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market,
its Fair Market Value shall be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system for
the last market trading day prior to the time of determination, as reported in
The Wall Street Journal or such other source as the Administrator deems
reliable;
(ii) If the Common Stock is regularly quoted by a
recognized securities dealer but selling prices are not reported, its Fair
Market Value shall be the mean between the high bid and low asked prices for the
Common Stock on the last market trading day prior to the day of determination,
or;
(iii) In the absence of an established market for the
Common Stock, the Fair Market Value thereof shall be determined in good faith by
the Administrator.
(m) "Incentive Stock Option" means an Option intended to
qualify as an incentive stock option within the meaning of Section 422 of the
Code.
(n) "Nonstatutory Stock Option" means an Option not intended
to qualify as an Incentive Stock Option.
(o) "Officer" means a person who is an officer of the Company
within the meaning of Section 16 of the Exchange Act and the rules and
regulations promulgated thereunder.
(p) "Option" means a stock option granted pursuant to the
Plan.
(q) "Optioned Stock" means the Common Stock subject to an
Option.
<PAGE> 3
(r) "Optionee" means an Employee or Consultant who receives an
Option.
(s) "Parent" means a "parent corporation", whether now or
hereafter existing, as defined in Section 424(e) of the Code.
(t) "Plan" means this 1996 Stock Option Plan.
(u) "Section 16(b)" means Section 16(b) of the Securities
Exchange Act of 1934, as amended.
(v) "Share" means a share of the Common Stock, as adjusted in
accordance with Section 11 below.
(w) "Subsidiary" means a "subsidiary corporation", whether now
or hereafter existing, as defined in Section 424(f) of the Code.
3. Stock Subject to the Plan. Subject to the provisions of Section 11
of the Plan, the maximum aggregate number of Shares which may be optioned and
sold under the Plan is 10,470,267 Shares. The Shares may be authorized, but
unissued, or reacquired Common Stock.
If an Option expires or becomes unexercisable without having
been exercised in full, or is surrendered pursuant to an option exchange
program, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued under
the Plan shall not be returned to the Plan and shall not become available for
future distribution under the Plan.
4. Administration of the Plan.
(a) Initial Plan Procedure. Prior to the date, if any, upon
which the Company becomes subject to the Exchange Act, the Plan shall be
administered by the Board or a committee appointed by the Board.
(b) Plan Procedure after the Date, if any, upon Which the
Company becomes Subject to the Exchange Act.
(i) Administration with Respect to Directors and
Officers. With respect to grants of Options to Employees who are also Officers
or directors of the Company, the Plan shall be administered by (A) the Board if
the Board may administer the Plan in compliance with the rules under Rule 16b-3
promulgated under the Exchange Act or any successor thereto ("Rule 16b-3")
relating to the disinterested administration of employee benefit plans under
which Section 16(b) exempt discretionary grants and awards of equity securities
are to be made, or (B) a Committee designated by the Board to administer the
Plan, which Committee shall be constituted to comply with the rules under Rule
16b-3 relating to the disinterested administration of employee benefit plans
under which Section 16(b) exempt discretionary grants and awards of equity
securities are to be made. Once appointed, such Committee shall continue to
serve in its designated capacity until otherwise directed by the Board. From
time to time the Board may
<PAGE> 4
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies, however caused, and remove all members of the
Committee and thereafter directly administer the Plan, all to the extent
permitted by the rules under Rule 16b-3 relating to the disinterested
administration of employee benefit plans under which Section 16(b) exempt
discretionary grants and awards of equity securities are to be made.
(ii) Multiple Administrative Bodies. If permitted by
Rule 16b-3, the Plan may be administered by different bodies with respect to
directors, non-director Officers and Employees who are neither directors nor
Officers.
(iii) Administration With Respect to Consultants and
Other Employees. With respect to grants of Options to Employees or Consultants
who are neither directors nor Officers of the Company, the Plan shall be
administered by (A) the Board or (B) a committee designated by the Board, which
committee shall be constituted in such a manner as to satisfy Applicable Laws.
Once appointed, such Committee shall continue to serve in its designated
capacity until otherwise directed by the Board. From time to time the Board may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies, however caused, and remove all members of the
Committee and thereafter directly administer the Plan, all to the extent
permitted by the Applicable Laws.
(c) Powers of the Administrator. Subject to the provisions of
the Plan and, in the case of a Committee, the specific duties delegated by the
Board to such Committee, and subject to the approval of any relevant
authorities, including the approval, if required, of any stock exchange upon
which the Common Stock is listed, the Administrator shall have the authority, in
its discretion:
(i) to determine the Fair Market Value of the Common
Stock, in accordance with Section 2(1) of the Plan;
(ii) to select the Consultants and Employees to whom
Options may from time to time be granted hereunder;
(iii) to determine whether and to what extent Options
are granted hereunder;
(iv) to determine the number of shares of Common
Stock to be covered by each such award granted hereunder;
(v) to approve forms of agreement for use under the
Plan;
(vi) to determine the terms and conditions of any
award granted hereunder;
(vii) to determine whether and under what
circumstances an Option may be settled in cash under subsection 9(f) instead of
Common Stock;
<PAGE> 5
(viii) to reduce the exercise price of any Option to
the then current Fair Market Value if the Fair Market Value of the Common Stock
covered by such Option has declined since the date the Option was granted; and
(ix) to construe and interpret the terms of the Plan
and awards granted pursuant to the Plan.
(d) Effect of Administrator's Decision. All decisions,
determinations and interpretations of the Administrator shall be final and
binding on all Optionees and any other holders of any Options.
5. Eligibility.
(a) Nonstatutory Stock Options may be granted to Employees and
Consultants. Incentive Stock Options may be granted only to Employees. An
Employee or Consultant who has been granted an Option may, if otherwise
eligible, be granted additional Options.
(b) Each Option shall be designated in the written option
agreement as either an Incentive Stock Option or a Nonstatutory Stock Option.
However, notwithstanding such designation, to the extent that the aggregate Fair
Market Value of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by the Optionee during any calendar year (under
all plans of the Company and any Parent or Subsidiary) exceeds $100,000, such
Options shall be treated as Nonstatutory Stock Options. For purposes of this
Section 5(b), Incentive Stock Options shall be taken into account in the order
in which they were granted. The Fair Market Value of the Shares shall be
determined as of the time the Option with respect to such Shares is granted.
(c) The Plan shall not coffer upon any Optionee any right with
respect to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with his or her right or the
Company's right to terminate his or her employment or consulting relationship at
any time, with or without cause.
(d) Upon the Company or a successor corporation issuing any
class of common equity securities required to be registered under Section 12 of
the Exchange Act or upon the Plan being assumed by a corporation having a class
of common equity securities required to be registered under Section 12 of the
Exchange Act, the following limitations shall apply to grants of Options to
Employees:
(i) No Employee shall be granted, in any fiscal year
of the Company, Options to purchase more than 325,000 Shares.
(ii) In connection with his or her initial
employment, an Employee may be granted Options to purchase up to an additional
325,000 Shares which shall not count against the limit set forth in subsection
(i) above.
<PAGE> 6
(iii) The foregoing limitations shall be adjusted
proportionately in connection with any change in the Company's capitalization as
described in Section 11.
(iv) If an Option is cancelled in the same fiscal
year of the Company in which it was granted (other than in connection with a
transaction described in Section 11), the cancelled Option will be counted
against the limit set forth in subsection (i) above. For this purpose, if the
exercise price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
6. Term of Plan. The Plan shall become effective upon the earlier to
occur of its adoption by the Board of Directors or its approval by the
shareholders of the Company, as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years unless sooner terminated under
Section 13 of the Plan.
7. Term of Option. The term of each Option shall be the term stated in
the Option Agreement; provided, however, that the term shall be no more than ten
(10) years from the date of grant thereof. However, in the case of an Incentive
Stock Option granted to an Optionee who, at the time the Option is granted, owns
stock representing more than ten percent (10%) of the voting power of all
classes of stock of the Company or any Parent or Subsidiary, the term of the
Option shall be five (5) years from the date of grant thereof or such shorter
term as may be provided in the Option Agreement.
8. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued
pursuant to exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the time
of the grant of such Incentive Stock Option, owns stock representing more than
ten percent (10%) of the voting power of all classes of stock of the Company or
any Parent or Subsidiary, the per Share exercise price shall be no less than
110% of the Fair Market Value per Share on the date of grant.
(B) granted to any Employee other than an
Employee described in the preceding paragraph, the per Share exercise price
shall be no less than 100% of the Fair Market Value per Share on the date of
grant.
(ii) In the case of a Nonstatutory Stock Option
(A) granted to a person who, at the time of
the grant of such Option, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent or
Subsidiary, the per Share exercise price shall be no less than 110% of the Fair
Market Value per Share on the date of the grant.
<PAGE> 7
(B) granted to any person, the per Share exercise
price shall be no less than 85% of the Fair Market Value per Share on the date
of grant.
(b) The consideration to be paid for the Shares to be issued
upon exercise of an Option, including the method of payment, shall be determined
by the Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant) and may consist entirely of (1) cash, (2)
check, (3) promissory note, (4) other Shares which (x) in the case of Shares
acquired upon exercise of an Option have been owned by the Optionee for more
than six months on the date of surrender and (y) have a Fair Market Value on the
date of surrender equal to the aggregate exercise price of the Shares as to
which said Option shall be exercised, (5) delivery of a properly executed
exercise notice together with such other documentation as the Administrator and
the broker, if applicable, shall require to effect an exercise of the Option and
delivery to the Company of the sale or loan proceeds required to pay the
exercise price, or (6) any combination of the foregoing methods of payment. In
making its determination as to the type of consideration to accept, the
Administrator shall consider if acceptance of such consideration may be
reasonably expected to benefit the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Administrator, including performance criteria
with respect to the Company and/or the Optionee, and as shall be permissible
under the terms of the Plan, but in no case at a rate of less than 20% per year
over five (5) years from the date the Option is granted.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written
notice of such exercise has been given to the Company in accordance with the
terms of the Option by the person entitled to exercise the Option and full
payment for the Shares with respect to which the Option is exercised has been
received by the Company. Full payment may, as authorized by the Administrator,
consist of any consideration and method of payment allowable under Section 8(b)
of the Plan. Until the issuance (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company) of
the stock certificate evidencing such Shares, no right to vote or receive
dividends or any other rights as a shareholder shall exist with respect to the
Optioned Stock, notwithstanding the exercise of the Option. The Company shall
issue (or cause to be issued) such stock certificate promptly upon exercise of
the Option. No adjustment will be made for a dividend or other right for which
the record date is prior to the date the stock certificate is issued, except as
provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both for
purposes of the Plan and for sale under the Option, by the number of Shares as
to which the Option is exercised.
(b) Termination of Employment or Consulting Relationship. In
the event of termination of an Optionee's Continuous Status as an Employee or
Consultant with the Company
<PAGE> 8
(but not in the event of an Optionee's change of status from Employee to
Consultant (in which case an Employee's Incentive Stock Option shall
automatically convert to a Nonstatutory Stock Option on the date three (3)
months and one day from the date of such change of status) or from Consultant to
Employee), such Optionee may, but only within such period of time as is
determined by the Administrator, of at least thirty (30) days, with such
determination in the case of an Incentive Stock Option not exceeding three (3)
months after the date of such termination (but in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), exercise his or her Option to the extent that Optionee was entitled
to exercise it at the date of such termination. To the extent that Optionee was
not entitled to exercise the Option at the date of such termination, or if
Optionee does not exercise such Option to the extent so entitled within the time
specified herein, the Option shall terminate.
(c) Disability of Optionee. In the event of termination of an
Optionee's consulting relationship or Continuous Status as an Employee as a
result of his or her disability, Optionee may, but only within twelve (12)
months from the date of such termination (and in no event later than the
expiration date of the term of such Option as set forth in the Option
Agreement), exercise the Option to the extent otherwise entitled to exercise it
at the date of such termination; provided, however, that if such disability is
not a "disability" as such term is defined in Section 22(e)(3) of the Code, in
the case of an Incentive Stock Option such Incentive Stock Option shall
automatically convert to a Nonstatutory Stock Option on the day three months and
one day following such termination. To the extent that Optionee is not entitled
to exercise the Option at the date of termination, or if Optionee does not
exercise such Option to the extent so entitled within the time specified herein,
the Option shall terminate, and the Shares covered by such Option shall revert
to the Plan.
(d) Death of Optionee. In the event of the death of an
Optionee, the Option may be exercised at any time within twelve (12) months
following the date of death (but in no event later than the expiration of the
term of such Option as set forth in the Notice of Grant), by the Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent that the Optionee was entitled to
exercise the Option at the date of death. If, at the time of death, the Optionee
was not entitled to exercise his or her entire Option, the Shares covered by the
unexercisable portion of the Option shall immediately revert to the Plan. If,
after death, the Optionee's estate or a person who acquired the right to
exercise the Option by bequest or inheritance does not exercise the Option
within the time specified herein, the Option shall terminate, and the Shares
covered by such Option shall revert to the Plan.
(e) Rule 16b-3. Options granted to persons subject to Section
16(b) of the Exchange Act must comply with Rule 16b-3 and shall contain such
additional conditions or restrictions as may be required thereunder to qualify
for the maximum exemption from Section 16 of the Exchange Act with respect to
Plan transactions.
(f) Buyout Provisions. The Administrator may at any time offer
to buy out for a payment in cash or Shares, an Option previously granted, based
on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
<PAGE> 9
10. Non-Transferability of Options. Options may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger.
(a) Changes in Capitalization. Subject to any required action
by the shareholders of the Company, the number of shares of Common Stock covered
by each outstanding Option, and the number of shares of Common Stock which have
been authorized for issuance under the Plan but as to which no Options have yet
been granted or which have been returned to the Plan upon cancellation or
expiration of an Option, as well as the price per share of Common Stock covered
by each such outstanding Option, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a stock split, reverse stock split, stock dividend, combination or
reclassification of the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the
Administrator, whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Administrator shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
(c) Merger. In the event of a merger of the Company with or
into another corporation or sale of all or substantially all of the assets of
the Company to another corporation, the Option may be assumed or an equivalent
option may be substituted by such successor corporation or a parent or
subsidiary of such successor corporation. If, in such event, the Option is not
assumed or substituted, the Option shall terminate as of the date of the closing
of the merger. For the purposes of this paragraph, the Option shall be
considered assumed if, following the merger or sale of assets, the option
confers the right to purchase, for each Share of Optioned Stock subject to the
Option immediately prior to the merger, the consideration (whether stock, cash,
or other securities or property) received in the merger or sale of assets by
holders of Common Stock for each Share held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding Shares);
provided, however, that if such consideration received in the merger or sale of
assets was not solely common stock of the successor corporation or its Parent,
the Administrator may, with the consent of the successor corporation, provide
for the consideration to be received upon the exercise of the Option for each
Share of Optioned Stock subject to the Option to be solely common stock of the
successor corporation or its Parent equal in fair market
<PAGE> 10
value to the per share consideration received by holders of Common Stock in the
merger or sale of assets.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Administrator makes the determination
granting such Option, or such other date as is determined by the Board. Notice
of the determination shall be given to each Employee or Consultant to whom an
Option is so granted within a reasonable time after the date of such grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may at any time
amend, alter, suspend or discontinue the Plan, but no amendment, alteration,
suspension or discontinuation shall be made which would impair the rights of any
Optionee under any grant theretofore made, without his or her consent. In
addition, to the extent necessary and desirable to comply with Rule 16b-3 under
the Exchange Act or with Section 422 of the Code (or any other applicable law or
regulation, including the requirements of the NASD or an established stock
exchange), the Company shall obtain shareholder approval of any Plan amendment
in such a manner and to such a degree as required.
(b) Effect of Amendment or Termination. Any such amendment or
termination of the Plan shall not affect Options already granted, and such
Options shall remain in full force and effect as if this Plan had not been
amended or terminated, unless mutually agreed otherwise between the Optionee and
the Administrator, which agreement must be in writing and signed by the Optionee
and the Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and the
issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act of
1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option, the Company may
require the person exercising such Option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment and
without any present intention to sell or distribute such Shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the term of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
The inability of the Company to obtain authority from any
regulatory body having jurisdiction, which authority is deemed by the Company's
counsel to be necessary to the lawful
<PAGE> 11
issuance and sale of any Shares hereunder, shall relieve the Company of any
liability in respect of the failure to issue or sell such Shares as to which
such requisite authority shall not have been obtained.
16. Agreements. Options shall be evidenced by written agreements in
such form as the Administrator shall approve from time to time.
17. Shareholder Approval. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve (12) months before or
after the date the Plan is adopted. Such shareholder approval shall be obtained
in the degree and manner required under applicable state and federal law and the
rules of any stock exchange upon which the Common Stock is listed.
18. Information to Optionees and Purchasers. The Company shall provide
to each Optionee, not less frequently than annually, copies of annual financial
statements. The Company shall also provide such statements to each individual
who acquires Shares pursuant to the Plan while such individual owns such Shares.
The Company shall not be required to provide such statements to key employees
whose duties in connection with the Company assure their access to equivalent
information.
<PAGE> 1
EXHIBIT 4.2
DECISIVE TECHNOLOGY CORPORATION
1996 STOCK OPTION PLAN
NOTICE OF STOCK OPTION GRANT
[Optionee]
- ------------------------
- ------------------------
You have been granted an option to purchase Common Stock "Common
Stock" of Decisive Technology Corporation (the "Company") as follows:
<TABLE>
<S> <C>
Board Approval Date: [BoardApprovalDate]
Date of Grant (Later of Board
Approval Date or Commence-
ment of Employment/Consulting): [GrantDate]
Vesting Commencement Date: [VestingCommenceDate]
Exercise Price per Share: $[ExercisePrice]
Total Number of Shares Granted: [NoofShares]
Total Exercise Price: $[TotalExercisePrice]
Type of Option: [ISO] Incentive Stock Option
[NSO] Nonstatutory Stock Option
Term/Expiration Date: [ExpirDate]
Vesting Schedule: This Option may be exercised, in whole
or in part, in accordance with the
following schedule: 6/48ths of the Shares
subject to the Option shall vest on the 6th
month anniversary of the Vesting
Commencement Date and 1/48th of the total
number of Shares subject to the Option
shall vest on the [MonthVestDate]of each
month thereafter.
Termination Period: Option may be exercised up to 90 days
after termination of employment or
consulting relationship except as set out
in Sections 6 and 7 of the Stock Option
Agreement (but in no event later than the
Expiration Date).
</TABLE>
-1-
<PAGE> 2
By your signature and the signature of the Company's representative
below, you and the Company agree that this option is granted under and governed
by the terms and conditions of the 1996 Stock Option Plan and the Stock Option
Agreement, both of which are attached and made a part of this document.
[OPTIONEE]: DECISIVE TECHNOLOGY CORPORATION
By:
- ---------------------------------- -----------------------------------
Signature
- ---------------------------------- -------------------------------------
Print Name Print Name and Title
-2-
<PAGE> 3
EXHIBIT 4.2
DECISIVE TECHNOLOGY CORPORATION
1996 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
1. GRANT OF OPTION. Decisive Technology Corporation, a California
corporation (the "Company"), hereby grants to [Optionee] ("Optionee"), an
option (the "Option") to purchase a total number of shares of Common Stock (the
"Shares") set forth in the Notice of Stock Option Grant, at the exercise price
per share set forth in the Notice of Stock Option Grant (the "Exercise Price")
subject to the terms, definitions and provisions of the Decisive Technology
1996 Stock Option Plan (the "Plan") adopted by the Company, which is
incorporated herein by reference. Unless otherwise defined herein, the terms
defined in the Plan shall have the same defined meanings in this Option.
If designated an Incentive Stock Option, this Option is
intended to qualify as an Incentive Stock Option as defined in Section 422 of
the Code.
2. EXERCISE OF OPTION. This Option shall be exercisable during
its Term in accordance with the Vesting Schedule set out in the Notice of Stock
Option Grant and with the provisions of Section 9 of the Plan as follows:
(a) RIGHT TO EXERCISE.
(i) This Option may not be exercised for a
fraction of a share.
(ii) In the event of Optionee's death,
disability or other termination of employment, the exercisability of the Option
is governed by Sections 5, 6 and 7 below, subject to the limitation contained
in Section 2(a)(i).
(iii) In no event may this Option be exercised
after the date of expiration of the Term of this Option as set forth in the
Notice of Stock Option Grant.
(b) METHOD OF EXERCISE. This Option shall be exercisable
by execution and delivery of the Exercise Notice and Restricted Stock Purchase
Agreement attached hereto as Exhibit A (the "Exercise Agreement") or of any
other form of written notice approved for such purpose by the Company which
shall state the election to exercise the Option, the number of Shares in
respect of which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to such shares
of Common Stock as may be required by the Company pursuant to the provisions of
the Plan. Such written notice shall be signed by Optionee and shall be
delivered in person or by certified mail to the Secretary of the Company. The
written notice shall be accompanied by payment of the Exercise Price. This
Option shall be deemed to be exercised upon receipt by the Company of such
written notice accompanied by the Exercise Price.
-1-
<PAGE> 4
No Shares will be issued pursuant to the exercise of an
Option unless such issuance and such exercise shall comply with all relevant
provisions of applicable law and the requirements of any stock exchange upon
which the Shares may then be listed. Assuming such compliance, for income tax
purposes the Shares shall be considered transferred to Optionee on the date on
which the Option is exercised with respect to such Shares.
3. METHOD OF PAYMENT. Payment of the Exercise Price shall be by
any of the following, or a combination thereof, at the election of Optionee:
(a) cash;
(b) check;
(c) surrender of other shares of Common Stock of the
Company which (i) in the case of Shares acquired pursuant to the exercise of a
Company option, have been owned by Optionee for more than six (6) months on the
date of surrender, and (ii) have a fair market value on the date of surrender
equal to the Exercise Price of the Shares as to which the Option is being
exercised; or
(d) if there is a public market for the Shares and they
are registered under the Securities Act, delivery of a properly executed
exercise notice together with irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds required to pay the
exercise price.
4. RESTRICTIONS ON EXERCISE. This Option may not be exercised
until such time as the Plan has been approved by the shareholders of the
Company, or if the issuance of such Shares upon such exercise or the method of
payment of consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation, including
any rule under Part 207 of Title 12 of the Code of Federal Regulations as
promulgated by the Federal Reserve Board. As a condition to the exercise of
this Option, the Company may require Optionee to make any representation and
warranty to the Company as may be required by any applicable law or regulation.
5. TERMINATION OF RELATIONSHIP. In the event of termination of
Optionee's Continuous Status as an Employee or Consultant, Optionee may, to the
extent otherwise so entitled at the date of such termination (the "Termination
Date"), exercise this Option during the Termination Period set forth in the
Notice of Stock Option Grant. To the extent that Optionee was not entitled to
exercise this Option at such Termination Date, or if Optionee does not exercise
this Option within the Termination Period, the Option shall terminate.
6. DISABILITY OF OPTIONEE.
(a) Notwithstanding the provisions of Section 5 above,
in the event of termination of Continuous Status as an Employee or Consultant
as a result of Optionee's total and permanent disability (as defined in Section
22(e)(3) of the Code), Optionee may, but only within twelve (12) months from
the Termination Date (but in no event later than the
-2-
<PAGE> 5
Expiration Date set forth in the Notice of Stock Option Grant), exercise this
Option to the extent Optionee was entitled to exercise it as of such
Termination Date. To the extent that Optionee was not entitled to exercise the
Option as of the Termination Date, or if Optionee does not exercise such Option
(to the extent so entitled) within the time specified in this Section 6(a), the
Option shall terminate.
(b) Notwithstanding the provisions of Section 5 above,
in the event of termination of Optionee's consulting relationship or Continuous
Status as an Employee as a result of disability not constituting a total and
permanent disability (as set forth in Section 22(e)(3) of the Code), Optionee
may, but only within six (6) months from the Termination Date (but in no event
later than the Expiration Date set forth in the Notice of Stock Option Grant),
exercise the Option to the extent Optionee was entitled to exercise it as of
such Termination Date; provided, however, that if this is an Incentive Stock
Option and Optionee fails to exercise this Incentive Stock Option within three
(3) months from the Termination Date, this Option will cease to qualify as an
Incentive Stock Option (as defined in Section 422 of the Code) and Optionee
will be treated for federal income tax purposes as having received ordinary
income at the time of such exercise in an amount generally measured by the
difference between the Exercise Price for the Shares and the fair market value
of the Shares on the date of exercise. To the extent that Optionee was not
entitled to exercise the Option at the Termination Date, or if Optionee does
not exercise such Option to the extent so entitled within the time specified in
this Section 6(b), the Option shall terminate.
7. DEATH OF OPTIONEE. In the event of the death of Optionee (a)
during the Term of this Option and while an Employee or Consultant of the
Company and having been in Continuous Status as an Employee or Consultant since
the date of grant of the Option, or (b) within thirty (30) days after
Optionee's Termination Date, the Option may be exercised at any time within six
(6) months following the date of death (but in no event later than the
Expiration Date set forth in the Notice of Stock Option Grant), by Optionee's
estate or by a person who acquired the right to exercise the Option by bequest
or inheritance, but only to the extent of the right to exercise that had
accrued at the Termination Date.
8. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by him
or her. The terms of this Option shall be binding upon the executors,
administrators, heirs, successors and assigns of Optionee.
9. TERM OF OPTION. This Option may be exercised only within the
Term set forth in the Notice of Stock Option Grant, subject to the limitations
set forth in Section 7 of the Plan.
10. TAX CONSEQUENCES. Set forth below is a brief summary as of the
date of this Option of certain of the federal and California tax consequences
of exercise of this Option and disposition of the Shares under the laws in
effect as of the Date of Grant. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE
TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A
-3-
<PAGE> 6
TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF INCENTIVE STOCK OPTION. If this Option
qualifies as an Incentive Stock Option, there will be no regular federal or
California income tax liability upon the exercise of the Option, although the
excess, if any, of the fair market value of the Shares on the date of exercise
over the Exercise Price will be treated as an adjustment to the alternative
minimum tax for federal tax purposes and may subject Optionee to the
alternative minimum tax in the year of exercise.
(b) EXERCISE OF NONSTATUTORY STOCK OPTION. If this
Option does not qualify as an Incentive Stock Option, there may be a regular
federal income tax liability and a California income tax liability upon the
exercise of the Option. Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the Shares on the date of exercise over the
Exercise Price. If Optionee is an employee, the Company will be required to
withhold from Optionee's compensation or collect from Optionee and pay to the
applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise.
(c) DISPOSITION OF SHARES. In the case of a Nonstatutory
Stock Option, if Shares are held for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for federal
and California income tax purposes. In the case of an Incentive Stock Option,
if Shares transferred pursuant to the Option are held for at least one year
after exercise and are disposed of at least two years after the Date of Grant,
any gain realized on disposition of the Shares will also be treated as
long-term capital gain for federal and California income tax purposes. In
either case, the long-term capital gain will be taxed for federal income tax
and alternative minimum tax purposes at a maximum rate of 28% if the Shares are
held more than one year but less than 18 months after exercise and at 20% if
the Shares are held more than 18 months after exercise. If Shares purchased
under an Incentive Stock Option are disposed of within such one-year period or
within two years after the Date of Grant, any gain realized on such disposition
will be treated as compensation income (taxable at ordinary income rates) to
the extent of the difference between the Exercise Price and the lesser of (i)
the fair market value of the Shares on the date of exercise, or (ii) the sale
price of the Shares.
(d) NOTICE OF DISQUALIFYING DISPOSITION OF INCENTIVE
STOCK OPTION SHARES. If the Option granted to Optionee herein is an Incentive
Stock Option, and if Optionee sells or otherwise disposes of any of the Shares
acquired pursuant to the Incentive Stock Option on or before the later of (i)
the date two years after the Date of Grant, or (ii) the date one year after the
date of exercise, Optionee shall immediately notify the Company in writing of
such disposition. Optionee acknowledges and agrees that he or she may be
subject to income tax withholding by the Company on the compensation income
recognized by Optionee from the early disposition by payment in cash or out of
the current earnings paid to Optionee.
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<PAGE> 7
11. WITHHOLDING TAX OBLIGATIONS. Optionee understands that, upon
exercising a Nonstatutory Stock Option, he or she will recognize income for tax
purposes in an amount equal to the excess of the then fair market value of the
Shares over the Exercise Price. However, the timing of this income recognition
may be deferred for up to six months if Optionee is subject to Section 16 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If
Optionee is an employee, the Company will be required to withhold from
Optionee's compensation, or collect from Optionee and pay to the applicable
taxing authorities an amount equal to a percentage of this compensation income.
Additionally, Optionee may at some point be required to satisfy tax withholding
obligations with respect to the disqualifying disposition of an Incentive Stock
Option. Optionee shall satisfy his or her tax withholding obligation arising
upon the exercise of this Option by one or some combination of the following
methods: (a) by cash payment, (b) out of Optionee's current compensation, (c)
if permitted by the Administrator, in its discretion, by surrendering to the
Company Shares which (i) in the case of Shares previously acquired from the
Company, have been owned by Optionee for more than six months on the date of
surrender, and (ii) have a fair market value on the date of surrender equal to
or greater than Optionee's marginal tax rate times the ordinary income
recognized, or (d) by electing to have the Company withhold from the Shares to
be issued upon exercise of the Option that number of Shares having a fair
market value equal to the amount required to be withheld. For this purpose, the
fair market value of the Shares to be withheld shall be determined on the date
that the amount of tax to be withheld is to be determined (the "Tax Date").
If Optionee is subject to Section 16 of the Exchange Act (an
"Insider"), any surrender of previously owned Shares to satisfy tax withholding
obligations arising upon exercise of this Option must comply with the
applicable provisions of Rule 16b-3 promulgated under the Exchange Act ("Rule
16b-3").
All elections by Optionee to have Shares withheld to satisfy tax
withholding obligations shall be made in writing in a form acceptable to the
Administrator and shall be subject to the following restrictions:
(a) the election must be made on or prior to the
applicable Tax Date;
(b) once made, the election shall be irrevocable as to
the particular Shares of the Option as to which the election is made; and
(c) all elections shall be subject to the consent or
disapproval of the Administrator.
12. MARKET STANDOFF AGREEMENT. In connection with the initial
public offering of the Company's securities and upon request of the Company or
the underwriters managing any underwritten offering of the Company's
securities, Optionee hereby agrees not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any Shares (other
than those included in the registration) without the prior written consent of
the Company or such underwriters, as the case may be, for such period of time
(not to exceed
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<PAGE> 8
180 days) from the effective date of such registration as may be requested by
the Company or such managing underwriters and to execute an agreement
reflecting the foregoing as may be requested by the underwriters at the time of
the public offering. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one document.
Decisive Technology Corporation
By:
----------------------------------
-------------------------------------
(Print name and title)
OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT
TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING EMPLOYMENT OR CONSULTANCY AT
THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS
OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S STOCK OPTION PLAN WHICH IS
INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH
RESPECT TO CONTINUATION OF EMPLOYMENT OR CONSULTANCY BY THE COMPANY, NOR SHALL
IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT OR THE COMPANY'S RIGHT TO
TERMINATE OPTIONEE'S EMPLOYMENT OR CONSULTANCY AT ANY TIME, WITH OR WITHOUT
CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents
that he or she is familiar with the terms and provisions thereof, and hereby
accepts this Option subject to all of the terms and provisions thereof.
Optionee has reviewed the Plan and this Option in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Option and
fully understands all provisions of the Option. Optionee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Administrator upon any questions arising under the Plan or this Option.
Dated:
------------------------ ------------------------------
[Optionee]
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<PAGE> 9
EXHIBIT 4.2
EXHIBIT A
DECISIVE TECHNOLOGY CORPORATION
1996 STOCK OPTION PLAN
EXERCISE NOTICE AND RESTRICTED STOCK PURCHASE AGREEMENT
This Agreement ("Agreement") is made as of ______________, by and
between Decisive Technology Corporation, a California corporation (the
"Company"), and [Optionee] ("Purchaser"). To the extent any capitalized terms
used in this Agreement are not defined, they shall have the meaning ascribed to
them in the 1996 Stock Option Plan.
1. EXERCISE OF OPTION. Subject to the terms and conditions
hereof, Purchaser hereby elects to exercise his or her option to purchase
__________ shares of the Common Stock (the "Shares") of the Company under and
pursuant to the Company's 1996 Stock Option Plan (the "Plan") and the Stock
Option Agreement dated ______________, (the "Option Agreement"). The purchase
price for the Shares shall be $[ExercisePrice] per Share for a total purchase
price of $_______________. The term "Shares" refers to the purchased Shares and
all securities received in replacement of the Shares or as stock dividends or
splits, all securities received in replacement of the Shares in a
recapitalization, merger, reorganization, exchange or the like, and all new,
substituted or additional securities or other properties to which Purchaser is
entitled by reason of Purchaser's ownership of the Shares.
2. TIME AND PLACE OF EXERCISE. The purchase and sale of the
Shares under this Agreement shall occur at the principal office of the Company
simultaneously with the execution and delivery of this Agreement in accordance
with the provisions of Section 2(b) of the Option Agreement. On such date, the
Company will deliver to Purchaser a certificate representing the Shares to be
purchased by Purchaser (which shall be issued in Purchaser's name) against
payment of the exercise price therefor by Purchaser by (a) check made payable
to the Company, (b) cancellation of indebtedness of the Company to Purchaser,
(c) delivery of shares of the Common Stock of the Company in accordance with
Section 3 of the Option Agreement, or (d) by a combination of the foregoing.
3. LIMITATIONS ON TRANSFER. In addition to any other limitation
on transfer created by applicable securities laws, Purchaser shall not assign,
encumber or dispose of any interest in the Shares except in compliance with the
provisions below and applicable securities laws.
(a) RIGHT OF FIRST REFUSAL. Before any Shares held by
Purchaser or any transferee of Purchaser (either being sometimes referred to
herein as the "Holder") may be sold or otherwise transferred (including
transfer by gift or operation of law), the Company or its assignee(s) shall
have a right of first refusal to purchase the Shares on the terms and
conditions set forth in this Section 3(a) (the "Right of First Refusal").
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<PAGE> 10
(i) NOTICE OF PROPOSED TRANSFER. The Holder of
the Shares shall deliver to the Company a written notice (the "Notice")
stating: (i) the Holder's bona fide intention to sell or otherwise transfer
such Shares; (ii) the name of each proposed purchaser or other transferee
("Proposed Transferee"); (iii) the number of Shares to be transferred to each
Proposed Transferee; and (iv) the terms and conditions of each proposed sale or
transfer. The Holder shall offer the Shares at the same price (the "Offered
Price") and upon the same terms (or terms as similar as reasonably possible) to
the Company or its assignee(s).
(ii) EXERCISE OF RIGHT OF FIRST REFUSAL. At any
time within thirty (30) days after receipt of the Notice, the Company and/or
its assignee(s) may, by giving written notice to the Holder, elect to purchase
all, but not less than all, of the Shares proposed to be transferred to any one
or more of the Proposed Transferees, at the purchase price determined in
accordance with subsection (iii) below.
(iii) PURCHASE PRICE. The purchase price
("Purchase Price") for the Shares purchased by the Company or its assignee(s)
under this Section 3(a) shall be the Offered Price. If the Offered Price
includes consideration other than cash, the cash equivalent value of the
non-cash consideration shall be determined by the Board of Directors of the
Company in good faith.
(iv) PAYMENT. Payment of the Purchase Price
shall be made, at the option of the Company or its assignee(s), in cash (by
check), by cancellation of all or a portion of any outstanding indebtedness of
the Holder to the Company (or, in the case of repurchase by an assignee, to the
assignee), or by any combination thereof within 30 days after receipt of the
Notice or in the manner and at the times set forth in the Notice.
(v) HOLDER'S RIGHT TO TRANSFER. If all of the
Shares proposed in the Notice to be transferred to a given Proposed Transferee
are not purchased by the Company and/or its assignee(s) as provided in this
Section 3(a), then the Holder may sell or otherwise transfer such Shares to
that Proposed Transferee at the Offered Price or at a higher price, provided
that such sale or other transfer is consummated within 60 days after the date
of the Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws and the Proposed
Transferee agrees in writing that the provisions of this Section 3 shall
continue to apply to the Shares in the hands of such Proposed Transferee. If
the Shares described in the Notice are not transferred to the Proposed
Transferee within such period, or if the Holder proposes to change the price or
other terms to make them more favorable to the Proposed Transferee, a new
Notice shall be given to the Company, and the Company and/or its assignees
shall again be offered the Right of First Refusal before any Shares held by the
Holder may be sold or otherwise transferred.
(vi) EXCEPTION FOR CERTAIN FAMILY TRANSFERS.
Anything to the contrary contained in this Section 3(a) notwithstanding, the
transfer of any or all of the Shares during Purchaser's lifetime or on
Purchaser's death by will or intestacy to Purchaser's Immediate Family or a
trust for the benefit of Purchaser's Immediate Family shall be exempt from the
provisions of this Section 3(a). "Immediate Family" as used herein shall mean
spouse, lineal descendant or antecedent, father, mother, brother or sister. In
such case, the
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<PAGE> 11
transferee or other recipient shall receive and hold the Shares so transferred
subject to the provisions of this Section, and there shall be no further
transfer of such Shares except in accordance with the terms of this Section 3.
(b) INVOLUNTARY TRANSFER.
(i) COMPANY'S RIGHT TO PURCHASE UPON
INVOLUNTARY TRANSFER. In the event, at any time after the date of this
Agreement, of any transfer by operation of law or other involuntary transfer
(including death or divorce, but excluding a transfer to Immediate Family as
set forth in Section 3(a)(vi) above) of all or a portion of the Shares by the
record holder thereof, the Company shall have an option to purchase all of the
Shares transferred at the greater of the purchase price paid by Purchaser
pursuant to this Agreement or the fair market value of the Shares on the date
of transfer. Upon such a transfer, the person acquiring the Shares shall
promptly notify the Secretary of the Company of such transfer. The right to
purchase such Shares shall be provided to the Company for a period of thirty
(30) days following receipt by the Company of written notice by the person
acquiring the Shares.
(ii) PRICE FOR INVOLUNTARY TRANSFER. With
respect to any stock to be transferred pursuant to Section 3(b)(i), the price
per Share shall be a price set by the Board of Directors of the Company that
will reflect the current value of the stock in terms of present earnings and
future prospects of the Company. The Company shall notify Purchaser or his or
her executor of the price so determined within thirty (30) days after receipt
by it of written notice of the transfer or proposed transfer of Shares.
However, if the Purchaser does not agree with the valuation as determined by
the Board of Directors of the Company, the Purchaser shall be entitled to have
the valuation determined by an independent appraiser to be mutually agreed upon
by the Company and the Purchaser and whose fees shall be borne equally by the
Company and the Purchaser.
(c) ASSIGNMENT. The right of the Company to purchase any
part of the Shares may be assigned in whole or in part to any shareholder or
shareholders of the Company or other persons or organizations; provided,
however, that an assignee, other than a corporation that is the parent or a
100% owned subsidiary of the Company, must pay the Company, upon assignment of
such right, cash equal to the difference between the original purchase price
and fair market value, if the original purchase price is less than the fair
market value of the Shares subject to the assignment.
(d) RESTRICTIONS BINDING ON TRANSFEREES. All transferees
of Shares or any interest therein will receive and hold such Shares or interest
subject to the provisions of this Agreement. Any sale or transfer of the
Company's Shares shall be void unless the provisions of this Agreement are
satisfied.
(e) TERMINATION OF RIGHTS. The right of first refusal
granted the Company by Section 3(a) above and the option to repurchase the
Shares in the event of an involuntary transfer granted the Company by Section
3(b) above shall terminate upon the first sale of Common Stock of the Company
to the general public pursuant to a registration
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<PAGE> 12
statement filed with and declared effective by the Securities and Exchange
Commission under the Securities Act. Upon termination of the right of first
refusal described in Section 3(a) above, a new certificate or certificates
representing the Shares not repurchased shall be issued, on request, without
the legend referred to in Section 6(a)(ii) herein and delivered to Purchaser.
4. INVESTMENT AND TAXATION REPRESENTATIONS. In connection with
the purchase of the Shares, Purchaser represents to the Company the following:
(a) Purchaser is aware of the Company's business affairs
and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the
securities. Purchaser is purchasing these securities for investment for his or
her own account only and not with a view to, or for resale in connection with,
any "distribution" thereof within the meaning of the Securities Act.
(b) Purchaser understands that the securities have not
been registered under the Securities Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein.
(c) Purchaser further acknowledges and understands that
the securities must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. Purchaser further acknowledges and understands that the Company is
under no obligation to register the securities. Purchaser understands that the
certificate(s) evidencing the securities will be imprinted with a legend which
prohibits the transfer of the securities unless they are registered or such
registration is not required in the opinion of counsel for the Company.
(d) Purchaser is familiar with the provisions of Rules
144 and 701, each promulgated under the Securities Act, which, in substance,
permit limited public resale of "restricted securities" acquired, directly or
indirectly, from the issuer thereof (or from an affiliate of such issuer), in a
non-public offering subject to the satisfaction of certain conditions. Rule 701
provides that if the issuer qualifies under Rule 701 at the time of issuance of
the securities, such issuance will be exempt from registration under the
Securities Act. In the event the Company becomes subject to the reporting
requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the
securities exempt under Rule 701 may be resold by the Purchaser ninety (90)
days thereafter, subject to the satisfaction of certain of the conditions
specified by Rule 144, including, among other things: (1) the sale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934); and, in the case of an affiliate, (2) the availability
of certain public information about the Company, and the amount of securities
being sold during any three month period not exceeding the limitations
specified in Rule 144(e), if applicable. Notwithstanding this paragraph (d),
Purchaser acknowledges and agrees to the restrictions set forth in paragraph
(f) hereof.
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<PAGE> 13
In the event that the Company does not qualify under Rule 701 at the
time of purchase, then the securities may be resold by the Purchaser in certain
limited circumstances subject to the provisions of Rule 144, which requires,
among other things: (1) the availability of certain public information about
the Company; (2) the resale occurring not less than one year after the party
has purchased, and made full payment of (within the meaning of Rule 144), the
securities to be sold; and, in the case of an affiliate, or of a non-affiliate
who has held the securities less than two years, (3) the sale being made
through a broker in an unsolicited "broker's transaction" or in transactions
directly with a market maker (as said term is defined under the Securities
Exchange Act of 1934) and the amount of securities being sold during any three
month period not exceeding the specified limitations stated therein, if
applicable.
(e) Purchaser further understands that at the time he or
she wishes to sell the securities there may be no public market upon which to
make such a sale, and that, even if such a public market then exists, the
Company may not be satisfying the current public information requirements of
Rule 144 or 701, and that, in such event, Purchaser would be precluded from
selling the securities under Rule 144 or 701 even if the one-year minimum
holding period had been satisfied.
(f) Purchaser further understands that in the event all
of the applicable requirements of Rule 144 or 701 are not satisfied,
registration under the Securities Act, compliance with Regulation A, or some
other registration exemption will be required; and that, notwithstanding the
fact that Rules 144 and 701 are not exclusive, the Staff of the Securities and
Exchange Commission has expressed its opinion that persons proposing to sell
private placement securities other than in a registered offering and otherwise
than pursuant to Rule 144 or 701 will have a substantial burden of proof in
establishing that an exemption from registration is available for such offers
or sales, and that such persons and their respective brokers who participate in
such transactions do so at their own risk.
(g) Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
5. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(a) LEGENDS. The certificate or certificates
representing the Shares shall bear the following legends (as well as any
legends required by applicable state and federal corporate and securities
laws):
i) THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION
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<PAGE> 14
WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISPOSITION MAY BE EFFECTED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL
FOR THE COMPANY THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
(ii) THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH
THE TERMS OF AN AGREEMENT BETWEEN THE
COMPANY AND THE SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
(b) STOP-TRANSFER NOTICES. Purchaser agrees that, in
order to ensure compliance with the restrictions referred to herein, the
Company may issue appropriate "stop transfer" instructions to its transfer
agent, if any, and that, if the Company transfers its own securities, it may
make appropriate notations to the same effect in its own records.
(c) REFUSAL TO TRANSFER. The Company shall not be
required (i) to transfer on its books any Shares that have been sold or
otherwise transferred in violation of any of the provisions of this Agreement
or (ii) to treat as owner of such Shares or to accord the right to vote or pay
dividends to any purchaser or other transferee to whom such Shares shall have
been so transferred.
6. NO EMPLOYMENT RIGHTS. Nothing in this Agreement shall affect
in any manner whatsoever the right or power of the Company, or a parent or
subsidiary of the Company, to terminate Purchaser's employment, for any reason,
with or without cause.
7. MARKET STAND-OFF AGREEMENT. In connection with the initial
public offering of the Company's securities and upon request of the Company or
the underwriters managing any underwritten offering of the Company's
securities, Purchaser agrees not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Shares (other than
those included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, for such period of time (not
to exceed 180 days) from the effective date of such registration as may be
requested by the Company or such managing underwriters and to execute an
agreement reflecting the foregoing as may be requested by the underwriters at
the time of the public offering.
8. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed,
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<PAGE> 15
construed and interpreted in accordance with the laws of the State of
California, without giving effect to principles of conflicts of law.
(b) ENTIRE AGREEMENT; ENFORCEMENT OF RIGHTS. This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.
(c) SEVERABILITY. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this Agreement, (ii)
the balance of the Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
(d) CONSTRUCTION. This Agreement is the result of
negotiations between and has been reviewed by each of the parties hereto and
their respective counsel, if any; accordingly, this Agreement shall be deemed
to be the product of all of the parties hereto, and no ambiguity shall be
construed in favor of or against any one of the parties hereto.
(e) NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient when delivered
personally or sent by telegram or fax or forty-eight (48) hours after being
deposited in the U.S. mail, as certified or registered mail, with postage
prepaid, and addressed to the party to be notified at such party's address as
set forth below or as subsequently modified by written notice.
(f) COUNTERPARTS. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original and all of
which together shall constitute one instrument.
(g) SUCCESSORS AND ASSIGNS. The rights and benefits of
this Agreement shall inure to the benefit of, and be enforceable by the
Company's successors and assigns. The rights and obligations of Purchaser under
this Agreement may only be assigned with the prior written consent of the
Company.
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<PAGE> 16
The parties have executed this Exercise Notice and Restricted Stock
Purchase Agreement as of the date first set forth above.
COMPANY:
DECISIVE TECHNOLOGY CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
(print)
Title:
----------------------------------
1991 Landings Drive, Building K
Mountain View, CA 94043
PURCHASER:
[OPTIONEE]
----------------------------------------
(Signature)
----------------------------------------
(Print Name)
Address:
----------------------------------------
----------------------------------------
I, ______________________, spouse of [Optionee], have read and hereby approve
the foregoing Agreement. In consideration of the Company's granting my spouse
the right to purchase the Shares as set forth in the Agreement, I hereby agree
to be irrevocably bound by the Agreement and further agree that any community
property or other such interest shall hereby by similarly bound by the
Agreement. I hereby appoint my spouse as my attorney-in-fact with respect to
any amendment or exercise of any rights under the Agreement.
----------------------------------------
Spouse of [Optionee]
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<PAGE> 17
RECEIPT
__________________Decisive Technology Corporation (the "Company") hereby
acknowledges receipt of a check in the amount of $___________ given by
[Optionee] as consideration for Certificate No. _________ for ____________
shares of Common Stock of Decisive Technology Corporation
Decisive Technology Corporation
Dated: By:
------------------ -------------------------------------
Name:
-----------------------------------
(print)
Title:
----------------------------------
<PAGE> 1
EXHIBIT 4.3
STATE OF ALABAMA )
MADISON COUNTY )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of January, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Jon or Judi Clark (the "Optionee"), as
follows:
WITNESSETH:
WHEREAS, the Corporation desires to grant to the Optionee options to
purchase shares of the Common Stock of the Corporation;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 50,000 shares of the Common Stock of the
Corporation, par value $0.01 per share, at a purchase price of One Dollar
($1.00) per share (the "Option Shares"). The grant of this option shall be
effective as the Grant Date; provided, however, that the option granted herein
shall vest in the Optionee as providing in Section 2 hereof. This option is
hereby designated a "nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee based on the gross revenue of the
Corporation during the period of April 1, 1997 till the Vesting Expiration Date
(as hereinafter defined) (the "Vesting Period"). For each $1,000,000 of
cumulative gross revenue of the Corporation during the Vesting Period, 20% of
the option granted herein shall vest. There shall be no fractional vesting of
options. Notwithstanding anything herein to the contrary, if the Corporation
shall sell substantially all of its assets or merge with another company or
substantially all of the stock of the Corporation is sold to a third party,
then the option grated herein shall fully vest immediately. The term "Vesting
Expiration Date" shall mean the earlier of:
(a) June 30, 2000;
(b) the date of death of the Optionee; or
(c) the resignation of employment of the Optionee with
the Corporation.
3. Option Term. The duration of the option granted under this
Agreement shall specifically terminate upon the earlier of the following events
(the "Option Expiration Date"):
3.1 Five (5) years from the Grant Date;
1.
<PAGE> 2
3.2 Mutual agreement of the Corporation and the Optionee;
3.3 Six months after the death of the Optionee; or
3.4 Sixty (60) days after the resignation or termination
of the employment of the Optionee with the Corporation.
4. Exercise of Options. The option granted hereunder may be
exercised in part. The option may be exercised only by Optionee (or the Estate
of the Optionee during the period allowed by Section 3.3 of this Agreement)
anytime after the Grant Date and prior to the Option Expiration Date. In no
event is any portion of the option to be exercisable after the Option
Expiration Date.
5. Manner of Exercise of Options. To exercise the options granted
herein, the Optionee shall give written notice to the Corporation at its
principal executive office, to the attention of the President of the
Corporation accompanied by payment of the exercise price and by such other
documents as the Board of Directors of the Corporation (the "Board") may
request. The date the Corporation receives written notice of an exercise
hereunder accompanied by payment of the exercise price and all such other
documents as may be reasonably required by the Corporation will be considered
the date the option was exercised. Promptly after receipt of written notice of
exercise of an option, the Corporation shall, without stock issue or transfer
taxes to the Optionee or any other person entitled to exercise the option,
deliver to the Optionee or such other person a certificate or certificates for
the requisite number of Option Shares. An Optionee or transferee of an option
hereunder shall not have any privileges as a stockholder in the Corporation
with respect to any stock covered by this option until the date of issuance of
a stock certificate for such shares.
6. Changes in Capital Structure. If the common stock of the
Corporation is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation, or reorganization,
appropriate adjustments shall be made in (A) the number and class of shares of
stock subject to this option, and (B) the exercise price of this option;
provided, however, that the Corporation shall not be required to issue
fractional shares as a result of any such adjustment. Each such adjustment
shall be determined by the Board, in its sole discretion, which determination
shall be final and binding on all persons. Notwithstanding anything herein to
the contrary, there shall be no adjustment to the number of options merely
because the Corporation issues additional shares of it stock.
7. Corporate Transactions. New option rights may be substituted
for the options granted herein, or the Corporations obligations as to an
outstanding option may be assumed, by a successor corporation or an affiliate
thereof, in connection with any merger, consolidation, acquisition, separation,
reorganization, dissolution, liquidation, sale or like occurrence ("Corporate
Transaction") in which the Corporation is involved and which the Board
determines, in its absolute discretion, would materially alter the structure of
the Corporation or its ownership. Notwithstanding the foregoing, if such an
event occurs and if such successor corporation, or an affiliate thereof, does
not substitute new options rights for, and substantially equivalent to, the
outstanding options granted hereunder, or assume the outstanding options granted
hereunder, or
2.
<PAGE> 3
if there is no successor corporation, of if the Board determines, in its sole
discretion, that the outstanding options should not then continue to be
outstanding, the Board may upon ten days' prior written notice to the Optionee
in its absolute discretion (A) shorten the period during which this option is
exercisable, (provided it remains exercisable, to the extent otherwise
exercisable, for at least ten (10) days after the date the notice is given), or
(B) cancel the option upon payment to the Optionee in cash, with respect to the
option to the extent then exercisable, of an amount which, in the absolute
discretion of the Board, is determined to be equivalent to any excess of the
fair market value (at the effective time of the Corporate Transaction) of the
consideration that the Optionee would have received if the option had been
exercised before the effective time, over the exercise price of the option;
provided, however, if there is a successor corporation and replacement options
are not granted by the successor Corporation, all outstanding options shall
become exercisable prior to the consummation of the transaction such that the
Optionee shall have not less than ten (10) days to exercise his option and
become a stockholder of record entitled to receive the consideration paid to the
other stockholders of the Corporation. If the Optionee fails to exercise his
option within any exercise period described in this paragraph and the Corporate
Transaction is consummated, his option shall no longer be exercisable and any
unexercised option shall be cancelled and terminated. Notwithstanding anything
herein to the contrary, nothing shall extend an Optionee's right to exercise the
option after the Option Expiration Date. The actions described in this Section
may be taken without regard to any resulting tax consequences to the purchaser.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provide below, payment
in full, in cash, shall be made for all stock purchased at the time written
notice of exercise of an option is given to the Corporation, and proceeds of
any payment shall constitute general funds of the Corporation.
11. Representatives. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment of the Corporation, such risks include, but are not limited to,
the lack of operating history, the Corporation's competition, and the
inadequacy of the Corporation's working capital.
3.
<PAGE> 4
11.3 The Optionee is aware of the current negotiations by
the Corporation with venture capital firms and investment banking firms and
acknowledges that there is no assurance the Corporation will be able to secure
funding from a venture capital firm.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder. The Optionee is further aware that
he may not be able to make any sales or transfers of common stock of the
Corporation and that any transfer will require the prior approval of the
Corporation and that such approval will be in the sole discretion of the
Corporation.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
11.6 The Optionee represents that he is an employee of
the Corporation.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear a
restrictive legend and the records of the Corporation will indicate
restrictions on transferability and sale.
13. Governing Law. This Agreement shall be interpreted and
construed according to an governed by the laws of the State of Alabama.
14. Entire Agreement. This Instrument contains the entire
Agreement of the parties. It may not be changed orally, but may be changed only
by an Agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
is or her rights or obligations hereunder. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Termination of Agreement. This Agreement shall terminate:
18.1 Upon the Option Expiration Date;
18.2 Upon the dissolution or bankruptcy of the
Corporation; or
4.
<PAGE> 5
18.3 Upon the Corporation's final payment of the amount
as provided in Section 7(B) hereof.
19. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the Breach thereof shall be settled in
Huntsville, Alabama, by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By: /s/ Stuart Obermann
--------------------------------
Its: President
ATTEST:
- -----------------------------------
Its: Chairman
(CORPORATION)
/s/ Jon Clark
--------------------------------(SEAL)
Jon or Judi Clark
WITNESS:
- ----------------------------------- (OPTIONEE)
5.
<PAGE> 1
EXHIBIT 4.4
STATE OF ALABAMA )
MADISON COUNTY )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of January, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Stuart Obermann (the "Optionee"), as
follows:
WITNESSETH:
WHEREAS, the Corporation desires to grant to the Optionee options to
purchase shares of the Common Stock of the Corporation;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 250,000 shares of the Common Stock of the
Corporation, par value $0.01 per share, at a purchase price of One Dollar
($1.00) per share (the "Option Shares"). The grant of this option shall be
effective as the Grant Date; provided, however, that the option granted herein
shall vest in the Optionee as providing in Section 2 hereof. This option is
hereby designated a "nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee based on the gross revenue of the
Corporation during the period of April 1, 1997 till the Vesting Expiration Date
(as hereinafter defined) (the "Vesting Period"). For each $1,000,000 of
cumulative gross revenue of the Corporation during the Vesting Period, 20% of
the option granted herein shall vest. There shall be no fractional vesting of
options. Notwithstanding anything herein to the contrary, if the Corporation
shall sell substantially all of its assets or merge with another company or
substantially all of the stock of the Corporation is sold to a third party,
then the option granted herein shall fully vest immediately. The term "Vesting
Expiration Date" shall mean the earlier of:
(a) June 30, 2000;
(b) the date of death of the Optionee; or
(c) the resignation or termination of employment of the
Optionee with the Corporation.
3. Option Term. The duration of the option granted under this
Agreement shall specifically terminate upon the earlier of the following events
(the "Option Expiration Date"):
1.
<PAGE> 2
3.1 Five (5) years from the Grant Date;
3.2 Mutual agreement of the Corporation and the
Optionee;
3.3 Six months after the death of the Optionee; or
3.4 Thirty (30) days after the resignation or
termination of the employment of the Optionee with the Corporation.
4. Exercise of Options. The option granted hereunder may be
exercised in part. The option may be exercised only by Optionee (or the Estate
of the Optionee during the period allowed by Section 3.3 of this Agreement)
anytime after the Grant Date and prior to the Option Expiration Date. In no
event is any portion of the option to be exercisable after the Option
Expiration Date.
5. Manner of Exercise of Options. To exercise the options granted
herein, the Optionee shall give written notice to the Corporation at its
principal executive office, to the attention of the President of the
Corporation accompanied by payment of the exercise price and by such other
documents as the Board of Directors of the Corporation (the "Board") may
request. The date the Corporation receives written notice of an exercise
hereunder accompanied by payment of the exercise price and all such other
documents as may be reasonably required by the Corporation will be considered
the date the option was exercised. Promptly after receipt of written notice of
exercise of an option, the Corporation shall, without stock issue or transfer
taxes to the Optionee or any other person entitled to exercise the option,
deliver to the Optionee or such other person a certificate or certificates for
the requisite number of Option Shares. An Optionee or transferee of an option
hereunder shall not have any privileges as a stockholder in the Corporation
with respect to any stock covered by this option until the date of issuance of
a stock certificate for such shares.
6. Changes in Capital Structure. If the common stock of the
Corporation is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation, or reorganization,
appropriate adjustments shall be made in (A) the number and class of shares of
stock subject to this option, and (B) the exercise price of this option;
provided, however, that the Corporation shall not be required to issue
fractional shares as a result of any such adjustment. Each such adjustment
shall be determined by the Board, in its sole discretion, which determination
shall be final and binding on all persons. Notwithstanding anything herein to
the contrary, there shall be no adjustment to the number of options merely
because the Corporation issues additional shares of it stock.
7. Corporate Transactions. New option rights may be substituted
for the options granted herein, or the Corporations obligations as to an
outstanding option may be assumed, by a successor corporation or an affiliate
thereof, in connection with any merger, consolidation, acquisition, separation,
reorganization, dissolution, liquidation, sale or like occurrence ("Corporate
Transaction") in which the Corporation is involved and which the Board
determines, in its absolute discretion, would materially alter the structure of
the Corporation or its ownership. Notwithstanding the foregoing, if such an
event occurs and if such successor corporation, or an
2.
<PAGE> 3
affiliate thereof, does not substitute new options rights for, and
substantially equivalent to, the outstanding options granted hereunder, or
assume the outstanding options granted hereunder, or if there is no successor
corporation, of if the Board determines, in its sole discretion, that the
outstanding options should not then continue to be outstanding, the Board may
upon ten days' prior written notice to the Optionee in its absolute discretion
(A) shorten the period during which this option is exercisable, (provided it
remains exercisable, to the extent otherwise exercisable, for at least ten (10)
days after the date the notice is given), or (B) cancel the option upon payment
to the Optionee in cash, with respect to the option to the extent then
exercisable, of an amount which, in the absolute discretion of the Board, is
determined to be equivalent to any excess of the fair market value (at the
effective time of the Corporate Transaction) of the consideration that the
Optionee would have received if the option had been exercised before the
effective time, over the exercise price of the option; provided, however, if
there is a successor corporation and replacement options are not granted by the
successor Corporation, all outstanding options shall become exercisable prior
to the consummation of the transaction such that the Optionee shall have not
less than ten (10) days to exercise his option and become a stockholder of
record entitled to receive the consideration paid to the other stockholders of
the Corporation. If the Optionee fails to exercise his option within any
exercise period described in this paragraph and the Corporate Transaction is
consummated, his option shall no longer be exercisable and any unexercised
option shall be cancelled and terminated. Notwithstanding anything herein to
the contrary, nothing shall extend an Optionee's right to exercise the option
after the Option Expiration Date. The actions described in this Section may be
taken without regard to any resulting tax consequences to the purchaser.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provide below, payment in
full, in cash, shall be made for all stock purchased at the time written notice
of exercise of an option is given to the Corporation, and proceeds of any
payment shall constitute general funds of the Corporation.
11. Representatives. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
3.
<PAGE> 4
11.2 The Optionee is aware of the great risks involved in
an investment of the Corporation, such risks include, but are not limited to,
the lack of operating history, the Corporation's competition, and the
inadequacy of the Corporation's working capital.
11.3 The Optionee is aware of the current negotiations by
the Corporation with venture capital firms and investment banking firms and
acknowledges that there is no assurance the Corporation will be able to secure
funding from a venture capital firm.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder. The Optionee is further aware that
he may not be able to make any sales or transfers of common stock of the
Corporation and that any transfer will require the prior approval of the
Corporation and that such approval will be in the sole discretion of the
Corporation.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
11.6 The Optionee represents that he is an employee of
the Corporation.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear a
restrictive legend and the records of the Corporation will indicate
restrictions on transferability and sale.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Instrument contains the entire
Agreement of the parties. It may not be changed orally, but may be changed only
by an Agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Termination of Agreement. This Agreement shall terminate:
4.
<PAGE> 5
18.1 Upon the Option Expiration Date;
18.2 Upon the dissolution or bankruptcy of the
Corporation; or
18.3 Upon the Corporation's final payment of the amount
as provided in Section 7(B) hereof.
19. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the Breach thereof shall be settled in
Huntsville, Alabama, by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By: /s/ Stuart Obermann
--------------------------------
Its: President
ATTEST:
- -----------------------------------
Its: Chairman
(CORPORATION)
/s/ Stuart Obermann
--------------------------------(SEAL)
Stuart Obermann
WITNESS:
- ----------------------------------- (OPTIONEE)
5.
<PAGE> 1
EXHIBIT 4.5
STATE OF ALABAMA )
MADISON COUNTY )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of January, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Randall Bachmeyer (the "Optionee"), as
follows:
WITNESSETH:
WHEREAS, the Corporation desires to grant to the Optionee options to
purchase shares of the Common Stock of the Corporation;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 100,000 shares of the Common Stock of the
Corporation, par value $0.01 per share, at a purchase price of One Dollar
($1.50) per share (the "Option Shares"). The grant of this option shall be
effective as the Grant Date; provided, however, that the option granted herein
shall vest in the Optionee as providing in Section 2 hereof. This option is
hereby designated a "nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee based on the gross revenue of the
Corporation during the period of April 1, 1997 till the Vesting Expiration Date
(as hereinafter defined) (the "Vesting Period"). For each $1,000,000 of
cumulative gross revenue of the Corporation during the Vesting Period, 20% of
the option granted herein shall vest. There shall be no fractional vesting of
options. Notwithstanding anything herein to the contrary, if the Corporation
shall sell substantially all of its assets or merge with another company or
substantially all of the stock of the Corporation is sold to a third party,
then the option grated herein shall fully vest immediately. The term "Vesting
Expiration Date" shall mean the earlier of:
(a) June 30, 2000;
(b) the date of death of the Optionee; or
(c) the resignation or termination of employment of the
Optionee with the Corporation.
3. Option Term. The duration of the option granted under this
Agreement shall specifically terminate upon the earlier of the following events
(the "Option Expiration Date"):
1.
<PAGE> 2
3.1 Five (5) years from the Grant Date;
3.2 Mutual agreement of the Corporation and the
Optionee;
3.3 Six months after the death of the Optionee; or
3.4 Thirty (30) days after the resignation or
termination of the employment of the Optionee with the Corporation.
4. Exercise of Options. The option granted hereunder may be
exercised in part. The option may be exercised only by Optionee (or the Estate
of the Optionee during the period allowed by Section 3.3 of this Agreement)
anytime after the Grant Date and prior to the Option Expiration Date. In no
event is any portion of the option to be exercisable after the Option
Expiration Date.
5. Manner of Exercise of Options. To exercise the options
granted herein, the Optionee shall give written notice to the Corporation at
its principal executive office, to the attention of the President of the
Corporation accompanied by payment of the exercise price and by such other
documents as the Board of Directors of the Corporation (the "Board") may
request. The date the Corporation receives written notice of an exercise
hereunder accompanied by payment of the exercise price and all such other
documents as may be reasonably required by the Corporation will be considered
the date the option was exercised. Promptly after receipt of written notice of
exercise of an option, the Corporation shall, without stock issue or transfer
taxes to the Optionee or any other person entitled to exercise the option,
deliver to the Optionee or such other person a certificate or certificates for
the requisite number of Option Shares. An Optionee or transferee of an option
hereunder shall not have any privileges as a stockholder in the Corporation
with respect to any stock covered by this option until the date of issuance of
a stock certificate for such shares.
6. Changes in Capital Structure. If the common stock of the
Corporation is changed by reason of a stock split, reverse stock split, stock
dividend, or recapitalization, or converted into or exchanged for other
securities as a result of a merger, consolidation, or reorganization,
appropriate adjustments shall be made in (A) the number and class of shares of
stock subject to this option, and (B) the exercise price of this option;
provided, however, that the Corporation shall not be required to issue
fractional shares as a result of any such adjustment. Each such adjustment
shall be determined by the Board, in its sole discretion, which determination
shall be final and binding on all persons. Notwithstanding anything herein to
the contrary, there shall be no adjustment to the number of options merely
because the Corporation issues additional shares of it stock.
7. Corporate Transactions. New option rights may be substituted
for the options granted herein, or the Corporations obligations as to an
outstanding option may be assumed, by a successor corporation or an affiliate
thereof, in connection with any merger, consolidation, acquisition, separation,
reorganization, dissolution, liquidation, sale or like occurrence ("Corporate
Transaction") in which the Corporation is involved and which the Board
determines, in its absolute discretion, would materially alter the structure of
the Corporation or its ownership. Notwithstanding the foregoing, if such an
event occurs and if such successor corporation, or an
2.
<PAGE> 3
affiliate thereof, does not substitute new options rights for, and
substantially equivalent to, the outstanding options granted hereunder, or
assume the outstanding options granted hereunder, or if there is no successor
corporation, of if the Board determines, in its sole discretion, that the
outstanding options should not then continue to be outstanding, the Board may
upon ten days' prior written notice to the Optionee in its absolute discretion
(A) shorten the period during which this option is exercisable, (provided it
remains exercisable, to the extent otherwise exercisable, for at least ten (10)
days after the date the notice is given), or (B) cancel the option upon payment
to the Optionee in cash, with respect to the option to the extent then
exercisable, of an amount which, in the absolute discretion of the Board, is
determined to be equivalent to any excess of the fair market value (at the
effective time of the Corporate Transaction) of the consideration that the
Optionee would have received if the option had been exercised before the
effective time, over the exercise price of the option; provided, however, if
there is a successor corporation and replacement options are not granted by the
successor Corporation, all outstanding options shall become exercisable prior
to the consummation of the transaction such that the Optionee shall have not
less than ten (10) days to exercise his option and become a stockholder of
record entitled to receive the consideration paid to the other stockholders of
the Corporation. If the Optionee fails to exercise his option within any
exercise period described in this paragraph and the Corporate Transaction is
consummated, his option shall no longer be exercisable and any unexercised
option shall be cancelled and terminated. Notwithstanding anything herein to
the contrary, nothing shall extend an Optionee's right to exercise the option
after the Option Expiration Date. The actions described in this Section may be
taken without regard to any resulting tax consequences to the purchaser.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provide below, payment
in full, in cash, shall be made for all stock purchased at the time written
notice of exercise of an option is given to the Corporation, and proceeds of
any payment shall constitute general funds of the Corporation.
11. Representatives. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
3.
<PAGE> 4
11.2 The Optionee is aware of the great risks involved in
an investment of the Corporation, such risks include, but are not limited to,
the lack of operating history, the Corporation's competition, and the
inadequacy of the Corporation's working capital.
11.3 The Optionee is aware of the current negotiations by
the Corporation with venture capital firms and investment banking firms and
acknowledges that there is no assurance the Corporation will be able to secure
funding from a venture capital firm.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder. The Optionee is further aware that
he may not be able to make any sales or transfers of common stock of the
Corporation and that any transfer will require the prior approval of the
Corporation and that such approval will be in the sole discretion of the
Corporation.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
11.6 The Optionee represents that he is an employee of
the Corporation.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear a
restrictive legend and the records of the Corporation will indicate
restrictions on transferability and sale.
13. Governing Law. This Agreement shall be interpreted and
construed according to an governed by the laws of the State of Alabama.
14. Entire Agreement. This Instrument contains the entire
Agreement of the parties. It may not be changed orally, but may be changed only
by an Agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
is or her rights or obligations hereunder. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Termination of Agreement. This Agreement shall terminate:
4.
<PAGE> 5
18.1 Upon the Option Expiration Date;
18.2 Upon the dissolution or bankruptcy of the
Corporation; or
18.3 Upon the Corporation's final payment of the amount
as provided in Section 7(B) hereof.
19. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the Breach thereof shall be settled in
Huntsville, Alabama, by arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By: /s/ Stuart Obermann
--------------------------------
Its: President
ATTEST:
- -----------------------------------
Its: Chairman
(CORPORATION)
/s/ Randall Bachmeyer (SEAL)
--------------------------------
Randall Bachmeyer
WITNESS:
- ----------------------------------- (OPTIONEE)
5.
<PAGE> 1
EXHIBIT 4.6
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Randy Bachmeyer
("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 424,200 of the Reserved Shares, at an exercise
price of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this
option shall be effective as of the Grant Date; provided, however, that the
option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the
Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th
of the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as
an employee or consultant as a result of the Optionee's "disability," as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the
Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of
the fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
---------------------------
ATTEST: Its: CEO
-----------------------
- ------------------------
Its
--------------------- (Corporation)
/s/ Randy Bachmeyer (SEAL)
WITNESS: ------------------------------
Randy Bachmeyer
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.7
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Kim Brower ("Optionee"),
as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee
options to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 5,000 of the Reserved Shares, at an exercise price
of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this option
shall be effective as of the Grant Date; provided, however, that the option
granted herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of
the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th
of the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as
an employee or consultant as a result of the Optionee's "disability," as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the
Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks
of an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of
the fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
----------------------
ATTEST: Its: CEO
---------------------
- ------------------------
Its
--------------------- (Corporation)
/s/ Kim Brower (SEAL)
---------------------
WITNESS: Kim Brower
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.8
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Chris Buss ("Optionee"),
as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 45,000 of the Reserved Shares, at an exercise price
of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this option
shall be effective as of the Grant Date; provided, however, that the option
granted herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the
Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th
of the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as
an employee or consultant as a result of the Optionee's "disability," as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the
Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the
fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased pursuant
to the options shall be purchased solely for the investment of the Optionee and
not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
ATTEST: -------------------------
Its: CEO
- ------------------------
Its
-------------------- (Corporation)
/s/ Chris Buss (SEAL)
WITNESS: ---------------------------
Chris Buss
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.9
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Simone Campbell (the
"Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 7,500 of the Reserved Shares, at an exercise price
of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this option
shall be effective as of the Grant Date; provided, however, that the option
granted herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the
Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th
of the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as
an employee or consultant as a result of the Optionee's "disability," as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the
Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of
the fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
-------------------------
ATTEST: Its: CEO
- ------------------------
Its
--------------------- (Corporation)
/s/ Simone Campbell (SEAL)
WITNESS: ----------------------------
Simone Campbell
- ------------------------ (Optionee)
-5-
<PAGE> 1
EXHIBIT 4.10
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Jon Clark ("Optionee"), as
follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 336,100 of the Reserved Shares, at an exercise
price of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this
option shall be effective as of the Grant Date; provided, however, that the
option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the
Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of
the Option Shares on the first day of each month beginning on September 1, 2000,
and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as
an employee or consultant as a result of the Optionee's "disability," as defined
in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the
Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the
fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased pursuant
to the options shall be purchased solely for the investment of the Optionee and
not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above
written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
--------------------------------
ATTEST: Its: CEO
------------------------------
- ------------------------------
Its
---------------------------
(Corporation)
/s/Jon Clark (SEAL)
--------------------------------
WITNESS: Jon Clark
------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.11
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of February, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and David Croom ("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the Voting
Common Stock of the Corporation, par value $0.001 per share (the "Reserved
Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options to
purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 15,000 of the Reserved Shares, at an exercise
price of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this
option shall be effective as of the Grant Date; provided, however, that the
option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of
the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of
the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully
vested.
3. Option Term. The options granted herein shall terminate on the
earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation
accompanied by full payment of the exercise price and by such other documents
as the Board of Directors of the Corporation (the "Board") may reasonably
request. Until the issuance (as evidenced by the appropriate entry on the books
of the Corporation or of a duly authorized transfer agent of the Corporation)
of the stock certificate evidencing such Option Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Option Shares, notwithstanding the exercise of the Option. The
Corporation shall issue (or cause to be issued) such stock certificate promptly
upon exercise of any portion of the option granted hereunder. No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 5
hereof. Exercise of a portion of the option granted hereunder in any manner
shall result in a decrease in the number of Option Shares which thereafter may
be available by the number of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status
as an employee or consultant as a result of the Optionee's "disability," as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12)
months from the date of the Optionee's termination (but in no event shall the
Optionee be entitled to exercise the option after the Option Expiration Date)
to the extent that Optionee was entitled to exercise it under Section 2 on the
date of termination.
4.4 In the event of the death of the Optionee, the
option granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only
to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by
the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by
the Corporation; provided, however, that conversion of any convertible
securities of the Corporation shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Corporation of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation.
In the event that the successor corporation refuses to assume or substitute for
the option granted hereunder, the Optionee shall fully vest in and have the
right to exercise the option as to all of the Option Shares, including Option
Shares as to which it would not otherwise be vested or exercisable. If this
option becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the Optionee in writing or electronically that the option shall be fully vested
and exercisable for a period of fifteen (15) days from the date of such notice,
and the option shall terminate upon the expiration of such period. For the
purposes of this Section, the option shall be considered assumed if, following
the merger or sale of assets, the option confers the right to purchase or
receive, for each Option Share immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of common stock
of the Corporation for each share of the common stock of the Corporation held
on the effective date of the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of the common stock of the Corporation); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its parent, the Board
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the option, for each share of
Option Shares, to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of common stock of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below, payment
in full, in cash, shall be made for all stock purchased at the time written
notice of exercise of an option is given to the Corporation, and proceeds of
any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the
fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear the
restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire agreement
of the parties and it supercedes all previous agreements and communications,
written or oral, regarding the matters contained in these agreements. It may
not be changed orally, but may be changed only by an agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights
hereunder in accordance with Section 3.3 hereof. The Optionee shall have no
right to assign any option herein granted to him and any such attempted
assignment shall be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but not
limited to, any arbitration brought pursuant to Section 19 hereof, is brought
by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided herein,
it is agreed by the parties hereto that any controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
-----------------------------------
ATTEST: Its: CEO
---------------------------------
- ------------------------
Its --------------------
(Corporation)
/s/ David Croom (SEAL)
-------------------------------------
WITNESS: David Croom
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.12
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of February, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Jeanie DuMont (the "Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the Voting
Common Stock of the Corporation, par value $0.001 per share (the "Reserved
Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options to
purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 10,000 of the Reserved Shares, at an exercise
price of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this
option shall be effective as of the Grant Date; provided, however, that the
option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of
the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of
the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully
vested.
3. Option Term. The options granted herein shall terminate on the
earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation
accompanied by full payment of the exercise price and by such other documents
as the Board of Directors of the Corporation (the "Board") may reasonably
request. Until the issuance (as evidenced by the appropriate entry on the books
of the Corporation or of a duly authorized transfer agent of the Corporation)
of the stock certificate evidencing such Option Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Option Shares, notwithstanding the exercise of the Option. The
Corporation shall issue (or cause to be issued) such stock certificate promptly
upon exercise of any portion of the option granted hereunder. No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 5
hereof. Exercise of a portion of the option granted hereunder in any manner
shall result in a decrease in the number of Option Shares which thereafter may
be available by the number of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status
as an employee or consultant as a result of the Optionee's "disability," as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12)
months from the date of the Optionee's termination (but in no event shall the
Optionee be entitled to exercise the option after the Option Expiration Date)
to the extent that Optionee was entitled to exercise it under Section 2 on the
date of termination.
4.4 In the event of the death of the Optionee, the
option granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only
to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by
the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by
the Corporation; provided, however, that conversion of any convertible
securities of the Corporation shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Corporation of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation.
In the event that the successor corporation refuses to assume or substitute for
the option granted hereunder, the Optionee shall fully vest in and have the
right to exercise the option as to all of the Option Shares, including Option
Shares as to which it would not otherwise be vested or exercisable. If this
option becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the Optionee in writing or electronically that the option shall be fully vested
and exercisable for a period of fifteen (15) days from the date of such notice,
and the option shall terminate upon the expiration of such period. For the
purposes of this Section, the option shall be considered assumed if, following
the merger or sale of assets, the option confers the right to purchase or
receive, for each Option Share immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of common stock
of the Corporation for each share of the common stock of the Corporation held
on the effective date of the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of the common stock of the Corporation); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its parent, the Board
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the option, for each share of
Option Shares, to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of common stock of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below, payment
in full, in cash, shall be made for all stock purchased at the time written
notice of exercise of an option is given to the Corporation, and proceeds of
any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the
fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear the
restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire agreement
of the parties and it supercedes all previous agreements and communications,
written or oral, regarding the matters contained in these agreements. It may
not be changed orally, but may be changed only by an agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights
hereunder in accordance with Section 3.3 hereof. The Optionee shall have no
right to assign any option herein granted to him and any such attempted
assignment shall be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but not
limited to, any arbitration brought pursuant to Section 19 hereof, is brought
by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided herein,
it is agreed by the parties hereto that any controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
-----------------------------------
ATTEST: Its: CEO
---------------------------------
- ------------------------
Its --------------------
(Corporation)
/s/ Jeanie DuMont (SEAL)
-------------------------------------
WITNESS: Jeanie DuMont
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.13
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of February, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Daniel Foster ("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the Voting
Common Stock of the Corporation, par value $0.001 per share (the "Reserved
Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options to
purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 13,000 of the Reserved Shares, at an exercise
price of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this
option shall be effective as of the Grant Date; provided, however, that the
option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of
the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of
the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully
vested.
3. Option Term. The options granted herein shall terminate on the
earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation
accompanied by full payment of the exercise price and by such other documents
as the Board of Directors of the Corporation (the "Board") may reasonably
request. Until the issuance (as evidenced by the appropriate entry on the books
of the Corporation or of a duly authorized transfer agent of the Corporation)
of the stock certificate evidencing such Option Shares, no right to vote or
receive dividends or any other rights as a shareholder shall exist with respect
to the Option Shares, notwithstanding the exercise of the Option. The
Corporation shall issue (or cause to be issued) such stock certificate promptly
upon exercise of any portion of the option granted hereunder. No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 5
hereof. Exercise of a portion of the option granted hereunder in any manner
shall result in a decrease in the number of Option Shares which thereafter may
be available by the number of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status
as an employee or consultant as a result of the Optionee's "disability," as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12)
months from the date of the Optionee's termination (but in no event shall the
Optionee be entitled to exercise the option after the Option Expiration Date)
to the extent that Optionee was entitled to exercise it under Section 2 on the
date of termination.
4.4 In the event of the death of the Optionee, the
option granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only
to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by
the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by
the Corporation; provided, however, that conversion of any convertible
securities of the Corporation shall not be deemed to have been "effected
without receipt of consideration". Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Corporation of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation.
In the event that the successor corporation refuses to assume or substitute for
the option granted hereunder, the Optionee shall fully vest in and have the
right to exercise the option as to all of the Option Shares, including Option
Shares as to which it would not otherwise be vested or exercisable. If this
option becomes fully vested and exercisable in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
the Optionee in writing or electronically that the option shall be fully vested
and exercisable for a period of fifteen (15) days from the date of such notice,
and the option shall terminate upon the expiration of such period. For the
purposes of this Section, the option shall be considered assumed if, following
the merger or sale of assets, the option confers the right to purchase or
receive, for each Option Share immediately prior to the merger or sale of
assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of common stock
of the Corporation for each share of the common stock of the Corporation held
on the effective date of the transaction (and if holders were offered a choice
of consideration, the type of consideration chosen by the holders of a majority
of the outstanding shares of the common stock of the Corporation); provided,
however, that if such consideration received in the merger or sale of assets is
not solely common stock of the successor corporation or its parent, the Board
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the option, for each share of
Option Shares, to be solely common stock of the successor corporation or its
parent equal in fair market value to the per share consideration received by
holders of common stock of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below, payment
in full, in cash, shall be made for all stock purchased at the time written
notice of exercise of an option is given to the Corporation, and proceeds of
any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background
and experience in financial and business matters to evaluate the merits and
risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the
fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the common
stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock
may be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common stock
of the Corporation purchased under the options granted herein shall bear the
restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights
hereunder in accordance with Section 3.3 hereof. The Optionee shall have no
right to assign any option herein granted to him and any such attempted
assignment shall be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but not
limited to, any arbitration brought pursuant to Section 19 hereof, is brought
by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided herein,
it is agreed by the parties hereto that any controversy or claim arising out of
or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
-----------------------------------
ATTEST: Its: CEO
---------------------------------
- ------------------------
Its --------------------
(Corporation)
/s/ Daniel Foster (SEAL)
-------------------------------------
WITNESS: Daniel Foster
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.14
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Michael Lee ("Optionee"),
as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and
conditions contained herein, the Corporation hereby grants Optionee the right,
privilege and option to purchase up to 20,000 of the Reserved Shares, at an
exercise price of Forty Cents ($0.40) per share (the "Option Shares"). The grant
of this option shall be effective as of the Grant Date; provided, however, that
the option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase
the Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to
50% of the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to
1/24th of the Option Shares on the first day of each month beginning on
September 1, 2000, and continuing thereafter until all of the Option Shares are
fully vested.
3. Option Term. The options granted herein shall
terminate on the earliest to occur of any of the following events (the "Option
Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status
as an employee or consultant as a result of the Optionee's "disability," as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by
the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of
the Corporation with or into another corporation after October 1, 1999, or the
sale of substantially all of the assets of the Corporation after October 1,
1999, this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Corporation, the Board shall notify
the Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the
option granted herein is exercised, in whole or in part, at a time when
insufficient authorized capital shares of the Corporation are available for
issuance, the Corporation agrees to take all necessary and appropriate steps to
provide sufficient authorized capital shares to be issued pursuant to this
option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a
transfer upon the death of the Optionee, the Corporation and Optionee agree that
this is a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants
to the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge,
background and experience in financial and business matters to evaluate the
merits and risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks
involved in an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware
of the fact that the receipt and exercise of the option granted hereunder may
have effects on the Optionee's personal income tax situation and that he has
been advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted
and construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision of this Agreement.
16. Authority. The provisions of this Agreement required
to be approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including,
but not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically
provided herein, it is agreed by the parties hereto that any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled in Huntsville, Alabama, by binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
-----------------------------
ATTEST: Its: CEO
---------------------------
- -------------------------
Its
--------------------- (Corporation)
/s/ Michael Lee (SEAL)
-----------------------
WITNESS: Michael Lee
- -------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.15
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of February, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Desiree Maurice ("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the Voting
Common Stock of the Corporation, par value $0.001 per share (the "Reserved
Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options to
purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions contained
herein, the Corporation hereby grants Optionee the right, privilege and option
to purchase up to 22,500 of the Reserved Shares, at an exercise price of Forty
Cents ($0.40) per share (the "Option Shares"). The grant of this option shall be
effective as of the Grant Date; provided, however, that the option granted
herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the Option
Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the Option
Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of the
Option Shares on the first day of each month beginning on September 1, 2000, and
continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on the
earliest to occur of any of the following events (the "Option Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be exercised
for a fraction of a share. The option granted hereunder shall be deemed to be
exercised when written notice of such exercise has been given to the Corporation
to the attention of the Secretary of the Corporation accompanied by full payment
of the exercise price and by such other documents as the Board of Directors of
the Corporation (the "Board") may reasonably request. Until the issuance (as
evidenced by the appropriate entry on the books of the Corporation or of a duly
authorized transfer agent of the Corporation) of the stock certificate
evidencing such Option Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Option Shares,
notwithstanding the exercise of the Option. The Corporation shall issue (or
cause to be issued) such stock certificate promptly upon exercise of any portion
of the option granted hereunder. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 5 hereof. Exercise of a portion of the
option granted hereunder in any manner shall result in a decrease in the number
of Option Shares which thereafter may be available by the number of Shares as to
which the Option is exercised.
4.2 In the event of termination of an Optionee as an employee or
consultant with the Corporation (but not in the event of an Optionee's change of
status from employee to consultant or from consultant to employee), such
Optionee may, but only within such period of time as is determined by the Board,
of at least thirty (30) days (but in no event later than the Option Expiration
Date), exercise the option granted hereunder to the extent that Optionee was
entitled to exercise it under Section 2 hereof at the date of such termination,
or to such greater extent as may be determined by the Board. If the Optionee
does not exercise such option to the extent so entitled within the time
specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as an
employee or consultant as a result of the Optionee's "disability," as defined in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the Optionee
may exercise the option granted hereunder within twelve (12) months from the
date of the Optionee's termination (but in no event shall the Optionee be
entitled to exercise the option after the Option Expiration Date) to the extent
that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option granted
hereunder may be exercised at any time within twelve (12) months following the
date of death (but in no event later may the option be exercised after the
Option Expiration Date), by the Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent that the Optionee was entitled to exercise the Option in accordance with
Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by the
shareholders of the Corporation, the number of shares of Option Shares covered
by this Agreement, as well as the price
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the Corporation
with or into another corporation after October 1, 1999, or the sale of
substantially all of the assets of the Corporation after October 1, 1999, this
Agreement shall be assumed or an equivalent option substituted by the successor
corporation or a parent or subsidiary of the successor corporation. In the event
that the successor corporation refuses to assume or substitute for the option
granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Corporation, the Board shall notify the Optionee at least
fifteen (15) days prior to such proposed action. To the extent it has not been
previously exercised, the Option will terminate immediately prior to the
consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option granted
herein is exercised, in whole or in part, at a time when insufficient authorized
capital shares of the Corporation are available for issuance, the Corporation
agrees to take all necessary and appropriate steps to provide sufficient
authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer upon the
death of the Optionee, the Corporation and Optionee agree that this is a
personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below, payment in
full, in cash, shall be made for all stock purchased at the time written notice
of exercise of an option is given to the Corporation, and proceeds of any
payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in an
investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the fact
that the receipt and exercise of the option granted hereunder may have effects
on the Optionee's personal income tax situation and that he has been advised to
consult with a qualified tax advisor regarding the possible implications.
11.4 The Optionee is aware of the fact that the common stock
of the Corporation has not been registered, nor is registration contemplated
under the Securities Act of 1933, as amended, or under the securities laws of
any state. Accordingly, such stock must be held indefinitely unless it is
subsequently registered under said securities laws or unless, in the opinion of
counsel for the Corporation, a sale or transfer of such stock may be made
without registration thereunder.
11.5 The Optionee agrees that any stock purchased pursuant to
the options shall be purchased solely for the investment of the Optionee and not
for resale.
12. Restrictive Legend. Any certificate evidencing common stock of the
Corporation purchased under the options granted herein shall bear the
restrictive legend normally attached to stock of the Corporation and the records
of the Corporation will indicate the normal restrictions on transferability and
such restriction shall be the same as on all other stock of the Optionee.
13. Governing Law. This Agreement shall be interpreted and construed
according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire agreement of
the parties and it supercedes all previous agreements and communications,
written or oral, regarding the matters contained in these agreements. It may not
be changed orally, but may be changed only by an agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision of this Agreement.
16. Authority. The provisions of this Agreement required to be approved
by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their respective
heirs, executors, administrators and assigns, but nothing contained herein shall
be construed as an authorization or right of any party to assign his or her
rights or obligations hereunder except that upon the death of the Optionee the
estate of the Optionee may exercise the Optionee's rights hereunder in
accordance with Section 3.3 hereof. The Optionee shall have no right to assign
any option herein granted to him and any such attempted assignment shall be
ineffective.
18. Attorneys Fees. If any legal proceeding, including, but not limited
to, any arbitration brought pursuant to Section 19 hereof, is brought by either
party to this Agreement against the other party to enforce any provision of this
Agreement, then the prevailing party shall be entitled to receive from the other
party reimbursement for its reasonable attorneys' fee incurred in such
proceeding.
19. Arbitration. Except as otherwise specifically provided herein, it
is agreed by the parties hereto that any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled in Huntsville,
Alabama, by binding arbitration in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered may be entered in
any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
---------------------------------
ATTEST: Its: CEO
--------------------------------
- ---------------------------
Its
-----------------------
(Corporation)
/s/ Desiree Maurice (SEAL)
--------------------------------
WITNESS: Desiree Maurice
- ---------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.16
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Marcus Mead ("Optionee"),
as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and
conditions contained herein, the Corporation hereby grants Optionee the right,
privilege and option to purchase up to 10,000 of the Reserved Shares, at an
exercise price of Forty Cents ($0.40) per share (the "Option Shares"). The grant
of this option shall be effective as of the Grant Date; provided, however, that
the option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase
the Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to
50% of the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to
1/24th of the Option Shares on the first day of each month beginning on
September 1, 2000, and continuing thereafter until all of the Option Shares are
fully vested.
3. Option Term. The options granted herein shall
terminate on the earliest to occur of any of the following events (the "Option
Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder
may be exercised for a fraction of a share. The option granted hereunder shall
be deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee
as an employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's
status as an employee or consultant as a result of the Optionee's "disability,"
as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee,
the option granted hereunder may be exercised at any time within twelve (12)
months following the date of death (but in no event later may the option be
exercised after the Option Expiration Date), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required
action by the shareholders of the Corporation, the number of shares of Option
Shares covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of
the Corporation with or into another corporation after October 1, 1999, or the
sale of substantially all of the assets of the Corporation after October 1,
1999, this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Corporation, the Board shall notify
the Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the
option granted herein is exercised, in whole or in part, at a time when
insufficient authorized capital shares of the Corporation are available for
issuance, the Corporation agrees to take all necessary and appropriate steps to
provide sufficient authorized capital shares to be issued pursuant to this
option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a
transfer upon the death of the Optionee, the Corporation and Optionee agree that
this is a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants
to the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge,
background and experience in financial and business matters to evaluate the
merits and risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks
involved in an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware
of the fact that the receipt and exercise of the option granted hereunder may
have effects on the Optionee's personal income tax situation and that he has
been advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted
and construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision of this Agreement.
16. Authority. The provisions of this Agreement required
to be approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including,
but not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically
provided herein, it is agreed by the parties hereto that any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled in Huntsville, Alabama, by binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
-----------------------------
ATTEST: Its: CEO
---------------------------
- -------------------------
Its
--------------------- (Corporation)
/s/ Marcus Mead (SEAL)
-----------------------
WITNESS: Marcus Mead
- -------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.17
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Mike Morgan ("Optionee"),
as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and
conditions contained herein, the Corporation hereby grants Optionee the right,
privilege and option to purchase up to 5,000 of the Reserved Shares, at an
exercise price of Forty Cents ($0.40) per share (the "Option Shares"). The grant
of this option shall be effective as of the Grant Date; provided, however, that
the option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase
the Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to
50% of the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to
1/24th of the Option Shares on the first day of each month beginning on
September 1, 2000, and continuing thereafter until all of the Option Shares are
fully vested.
3. Option Term. The options granted herein shall
terminate on the earliest to occur of any of the following events (the "Option
Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder
may be exercised for a fraction of a share. The option granted hereunder shall
be deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee
as an employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's
status as an employee or consultant as a result of the Optionee's "disability,"
as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee,
the option granted hereunder may be exercised at any time within twelve (12)
months following the date of death (but in no event later may the option be
exercised after the Option Expiration Date), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required
action by the shareholders of the Corporation, the number of shares of Option
Shares covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of
the Corporation with or into another corporation after October 1, 1999, or the
sale of substantially all of the assets of the Corporation after October 1,
1999, this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Corporation, the Board shall notify
the Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the
option granted herein is exercised, in whole or in part, at a time when
insufficient authorized capital shares of the Corporation are available for
issuance, the Corporation agrees to take all necessary and appropriate steps to
provide sufficient authorized capital shares to be issued pursuant to this
option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a
transfer upon the death of the Optionee, the Corporation and Optionee agree that
this is a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants
to the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge,
background and experience in financial and business matters to evaluate the
merits and risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks
involved in an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware
of the fact that the receipt and exercise of the option granted hereunder may
have effects on the Optionee's personal income tax situation and that he has
been advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted
and construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision of this Agreement.
16. Authority. The provisions of this Agreement required
to be approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including,
but not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically
provided herein, it is agreed by the parties hereto that any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled in Huntsville, Alabama, by binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
-----------------------------
ATTEST: Its: CEO
---------------------------
- -------------------------
Its
--------------------- (Corporation)
/s/ Mike Morgan (SEAL)
-----------------------
WITNESS: Mike Morgan
- -------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.18
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 1st day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Stuart Obermann
("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and
conditions contained herein, the Corporation hereby grants Optionee the right,
privilege and option to purchase up to 239,700 of the Reserved Shares, at an
exercise price of Forty Cents ($0.40) per share (the "Option Shares"). The grant
of this option shall be effective as of the Grant Date; provided, however, that
the option granted herein shall vest in the Optionee as provided in Section 2
hereof. The approximate fair market value of the shares of the Reserved Shares
is $1.50 per shares as of the Grant Date. This option is hereby designated a
"nonqualified option".
2. Vesting of the Option Shares. The option to purchase
the Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to
50% of the Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to
1/24th of the Option Shares on the first day of each month beginning on
September 1, 2000, and continuing thereafter until all of the Option Shares are
fully vested.
3. Option Term. The options granted herein shall
terminate on the earliest to occur of any of the following events (the "Option
Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the
Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder
may be exercised for a fraction of a share. The option granted hereunder shall
be deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee
as an employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's
status as an employee or consultant as a result of the Optionee's "disability,"
as defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee,
the option granted hereunder may be exercised at any time within twelve (12)
months following the date of death (but in no event later may the option be
exercised after the Option Expiration Date), by the Optionee's estate or by a
person who acquired the right to exercise the Option by bequest or inheritance,
but only to the extent that the Optionee was entitled to exercise the Option in
accordance with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required
action by the shareholders of the Corporation, the number of shares of Option
Shares covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of
the Corporation with or into another corporation after October 1, 1999, or the
sale of substantially all of the assets of the Corporation after October 1,
1999, this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the
proposed dissolution or liquidation of the Corporation, the Board shall notify
the Optionee at least fifteen (15) days prior to such proposed action. To the
extent it has not been previously exercised, the Option will terminate
immediately prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the
option granted herein is exercised, in whole or in part, at a time when
insufficient authorized capital shares of the Corporation are available for
issuance, the Corporation agrees to take all necessary and appropriate steps to
provide sufficient authorized capital shares to be issued pursuant to this
option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a
transfer upon the death of the Optionee, the Corporation and Optionee agree that
this is a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants
to the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge,
background and experience in financial and business matters to evaluate the
merits and risks of an investment in the Corporation.
11.2 The Optionee is aware of the great risks
involved in an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware
of the fact that the receipt and exercise of the option granted hereunder may
have effects on the Optionee's personal income tax situation and that he has
been advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted
and construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or enforceability of
any other provision of this Agreement.
16. Authority. The provisions of this Agreement required
to be approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including,
but not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically
provided herein, it is agreed by the parties hereto that any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled in Huntsville, Alabama, by binding arbitration in accordance with the
rules of the American Arbitration Association, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof. IN WITNESS
WHEREOF, the parties hereto have caused this instrument to be executed under
seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
-----------------------------
ATTEST: Its: CEO
---------------------------
- -------------------------
Its
--------------------- (Corporation)
/s/ Stuart Obermann (SEAL)
-----------------------
WITNESS: Stuart Obermann
-----------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.19
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and
entered into as of the 8th day of February, 1999 (the "Grant Date"), by and
between REVNET SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Alabama (the "Corporation"), and Kristene Renteria (the
"Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the
Voting Common Stock of the Corporation, par value $0.001 per share (the
"Reserved Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options
to purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 10,000 of the Reserved Shares, at an exercise price
of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this option
shall be effective as of the Grant Date; provided, however, that the option
granted herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the
Option Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the
Option Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th
of the Option Shares on the first day of each month beginning on September 1,
2000, and continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on
the earliest to occur of any of the following events (the "Option Expiration
Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be
exercised for a fraction of a share. The option granted hereunder shall be
deemed to be exercised when written notice of such exercise has been given to
the Corporation to the attention of the Secretary of the Corporation accompanied
by full payment of the exercise price and by such other documents as the Board
of Directors of the Corporation (the "Board") may reasonably request. Until the
issuance (as evidenced by the appropriate entry on the books of the Corporation
or of a duly authorized transfer agent of the Corporation) of the stock
certificate evidencing such Option Shares, no right to vote or receive dividends
or any other rights as a shareholder shall exist with respect to the Option
Shares, notwithstanding the exercise of the Option. The Corporation shall issue
(or cause to be issued) such stock certificate promptly upon exercise of any
portion of the option granted hereunder. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 5 hereof. Exercise of a
portion of the option granted hereunder in any manner shall result in a decrease
in the number of Option Shares which thereafter may be available by the number
of Shares as to which the Option is exercised.
4.2 In the event of termination of an Optionee as an
employee or consultant with the Corporation (but not in the event of an
Optionee's change of status from employee to consultant or from consultant to
employee), such Optionee may, but only within such period of time as is
determined by the Board, of at least thirty (30) days (but in no event later
than the Option Expiration Date), exercise the option granted hereunder to the
extent that Optionee was entitled to exercise it under Section 2 hereof at the
date of such termination, or to such greater extent as may be determined by the
Board. If the Optionee does not exercise such option to the extent so entitled
within the time specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status
as an employee or consultant as a result of the Optionee's "disability," as
defined in Section 22(e)(3) of the Internal Revenue Code of 1986, as amended,
the Optionee may exercise the option granted hereunder within twelve (12) months
from the date of the Optionee's termination (but in no event shall the Optionee
be entitled to exercise the option after the Option Expiration Date) to the
extent that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option
granted hereunder may be exercised at any time within twelve (12) months
following the date of death (but in no event later may the option be exercised
after the Option Expiration Date), by the Optionee's estate or by a person who
acquired the right to exercise the Option by bequest or inheritance, but only to
the extent that the Optionee was entitled to exercise the Option in accordance
with Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action
by the shareholders of the Corporation, the number of shares of Option Shares
covered by this Agreement, as well as the price
-2-
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option
granted herein is exercised, in whole or in part, at a time when insufficient
authorized capital shares of the Corporation are available for issuance, the
Corporation agrees to take all necessary and appropriate steps to provide
sufficient authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer
upon the death of the Optionee, the Corporation and Optionee agree that this is
a personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below,
payment in full, in cash, shall be made for all stock purchased at the time
written notice of exercise of an option is given to the Corporation, and
proceeds of any payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to
the Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in
an investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of
the fact that the receipt and exercise of the option granted hereunder may have
effects on the Optionee's personal income tax situation and that he has been
advised to consult with a qualified tax advisor regarding the possible
implications.
11.4 The Optionee is aware of the fact that the
common stock of the Corporation has not been registered, nor is registration
contemplated under the Securities Act of 1933, as amended, or under the
securities laws of any state. Accordingly, such stock must be held indefinitely
unless it is subsequently registered under said securities laws or unless, in
the opinion of counsel for the Corporation, a sale or transfer of such stock may
be made without registration thereunder.
11.5 The Optionee agrees that any stock purchased
pursuant to the options shall be purchased solely for the investment of the
Optionee and not for resale.
12. Restrictive Legend. Any certificate evidencing common
stock of the Corporation purchased under the options granted herein shall bear
the restrictive legend normally attached to stock of the Corporation and the
records of the Corporation will indicate the normal restrictions on
transferability and such restriction shall be the same as on all other stock of
the Optionee.
13. Governing Law. This Agreement shall be interpreted and
construed according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire
agreement of the parties and it supercedes all previous agreements and
communications, written or oral, regarding the matters contained in these
agreements. It may not be changed orally, but may be changed only by an
agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their
respective heirs, executors, administrators and assigns, but nothing contained
herein shall be construed as an authorization or right of any party to assign
his or her rights or obligations hereunder except that upon the death of the
Optionee the estate of the Optionee may exercise the Optionee's rights hereunder
in accordance with Section 3.3 hereof. The Optionee shall have no right to
assign any option herein granted to him and any such attempted assignment shall
be ineffective.
18. Attorneys Fees. If any legal proceeding, including, but
not limited to, any arbitration brought pursuant to Section 19 hereof, is
brought by either party to this Agreement against the other party to enforce any
provision of this Agreement, then the prevailing party shall be entitled to
receive from the other party reimbursement for its reasonable attorneys' fee
incurred in such proceeding.
19. Arbitration. Except as otherwise specifically provided
herein, it is agreed by the parties hereto that any controversy or claim arising
out of or relating to this Agreement or the breach thereof shall be settled in
Huntsville, Alabama, by binding arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/Stuart Obermann
-------------------------
ATTEST: Its: CEO
--------------------
- ------------------------
Its
-------------------- (Corporation)
/s/ Kristene Renteria (SEAL)
WITNESS: ----------------------------
Kristene Renteria
- ------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 4.20
STATE OF ALABAMA )
COUNTY OF MADISON )
STOCK OPTION AGREEMENT
(NQO)
THIS STOCK OPTION AGREEMENT (this "Agreement"), made and entered into
as of the 1st day of February, 1999 (the "Grant Date"), by and between REVNET
SYSTEMS, INC., a corporation organized and existing under the laws of the State
of Alabama (the "Corporation"), and Walter Thames ("Optionee"), as follows:
W I T N E S S E T H:
WHEREAS, the Corporation has reserved 1,185,000 shares of the Voting
Common Stock of the Corporation, par value $0.001 per share (the "Reserved
Shares") to be purchased by certain key personnel of Corporation; and
WHEREAS, the Corporation desires to grant the Optionee options to
purchase a portion of the Reserved Shares;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree specifically as follows:
1. Grant of Stock Option. Subject to the terms and conditions
contained herein, the Corporation hereby grants Optionee the right, privilege
and option to purchase up to 22,000 of the Reserved Shares, at an exercise price
of Forty Cents ($0.40) per share (the "Option Shares"). The grant of this option
shall be effective as of the Grant Date; provided, however, that the option
granted herein shall vest in the Optionee as provided in Section 2 hereof. The
approximate fair market value of the shares of the Reserved Shares is $1.50 per
shares as of the Grant Date. This option is hereby designated a "nonqualified
option".
2. Vesting of the Option Shares. The option to purchase the Option
Shares shall vest in the Optionee in accordance with the following:
(a) The option granted herein shall vest as to 50% of the Option
Shares on August 1, 2000; and
(b) The option granted herein shall vest as to 1/24th of the
Option Shares on the first day of each month beginning on September 1, 2000, and
continuing thereafter until all of the Option Shares are fully vested.
3. Option Term. The options granted herein shall terminate on the
earliest to occur of any of the following events (the "Option Expiration Date"):
<PAGE> 2
3.1 Five (5) years from the Grant Date; or
3.2 Mutual agreement of the Corporation and the Optionee.
4. Exercise of Options.
4.1 No portion of the option granted hereunder may be exercised
for a fraction of a share. The option granted hereunder shall be deemed to be
exercised when written notice of such exercise has been given to the Corporation
to the attention of the Secretary of the Corporation accompanied by full payment
of the exercise price and by such other documents as the Board of Directors of
the Corporation (the "Board") may reasonably request. Until the issuance (as
evidenced by the appropriate entry on the books of the Corporation or of a duly
authorized transfer agent of the Corporation) of the stock certificate
evidencing such Option Shares, no right to vote or receive dividends or any
other rights as a shareholder shall exist with respect to the Option Shares,
notwithstanding the exercise of the Option. The Corporation shall issue (or
cause to be issued) such stock certificate promptly upon exercise of any portion
of the option granted hereunder. No adjustment will be made for a dividend or
other right for which the record date is prior to the date the stock certificate
is issued, except as provided in Section 5 hereof. Exercise of a portion of the
option granted hereunder in any manner shall result in a decrease in the number
of Option Shares which thereafter may be available by the number of Shares as to
which the Option is exercised.
4.2 In the event of termination of an Optionee as an employee or
consultant with the Corporation (but not in the event of an Optionee's change of
status from employee to consultant or from consultant to employee), such
Optionee may, but only within such period of time as is determined by the Board,
of at least thirty (30) days (but in no event later than the Option Expiration
Date), exercise the option granted hereunder to the extent that Optionee was
entitled to exercise it under Section 2 hereof at the date of such termination,
or to such greater extent as may be determined by the Board. If the Optionee
does not exercise such option to the extent so entitled within the time
specified herein, the option shall terminate.
4.3 In the event of termination of an Optionee's status as an
employee or consultant as a result of the Optionee's "disability," as defined in
Section 22(e)(3) of the Internal Revenue Code of 1986, as amended, the Optionee
may exercise the option granted hereunder within twelve (12) months from the
date of the Optionee's termination (but in no event shall the Optionee be
entitled to exercise the option after the Option Expiration Date) to the extent
that Optionee was entitled to exercise it under Section 2 on the date of
termination.
4.4 In the event of the death of the Optionee, the option granted
hereunder may be exercised at any time within twelve (12) months following the
date of death (but in no event later may the option be exercised after the
Option Expiration Date), by the Optionee's estate or by a person who acquired
the right to exercise the Option by bequest or inheritance, but only to the
extent that the Optionee was entitled to exercise the Option in accordance with
Section 2 hereof on the date of death.
5. Changes in Capitalization. Subject to any required action by the
shareholders of the Corporation, the number of shares of Option Shares covered
by this Agreement, as well as the price
<PAGE> 3
per share of Option Shares, shall be proportionately adjusted for any increase
or decrease in the number of issued shares of voting common stock of the
Corporation resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the voting common stock of the Corporation,
or any other increase or decrease in the number of issued shares of voting
common stock of the Corporation effected without receipt of consideration by the
Corporation; provided, however, that conversion of any convertible securities of
the Corporation shall not be deemed to have been "effected without receipt of
consideration". Such adjustment shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. Except as expressly
provided herein, no issuance by the Corporation of shares of stock of any class,
or securities convertible into shares of stock of any class, shall affect, and
no adjustment by reason thereof shall be made with respect to, the number or
price of shares of the Option Shares.
6. Corporate Transactions. In the event of a merger of the
Corporation with or into another corporation after October 1, 1999, or the sale
of substantially all of the assets of the Corporation after October 1, 1999,
this Agreement shall be assumed or an equivalent option substituted by the
successor corporation or a parent or subsidiary of the successor corporation. In
the event that the successor corporation refuses to assume or substitute for the
option granted hereunder, the Optionee shall fully vest in and have the right to
exercise the option as to all of the Option Shares, including Option Shares as
to which it would not otherwise be vested or exercisable. If this option becomes
fully vested and exercisable in lieu of assumption or substitution in the event
of a merger or sale of assets, the Board shall notify the Optionee in writing or
electronically that the option shall be fully vested and exercisable for a
period of fifteen (15) days from the date of such notice, and the option shall
terminate upon the expiration of such period. For the purposes of this Section,
the option shall be considered assumed if, following the merger or sale of
assets, the option confers the right to purchase or receive, for each Option
Share immediately prior to the merger or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of common stock of the Corporation for each share of
the common stock of the Corporation held on the effective date of the
transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
the common stock of the Corporation); provided, however, that if such
consideration received in the merger or sale of assets is not solely common
stock of the successor corporation or its parent, the Board may, with the
consent of the successor corporation, provide for the consideration to be
received upon the exercise of the option, for each share of Option Shares, to be
solely common stock of the successor corporation or its parent equal in fair
market value to the per share consideration received by holders of common stock
of the Corporation in the merger or sale of assets.
7. Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Board shall notify the
Optionee at least fifteen (15) days prior to such proposed action. To the extent
it has not been previously exercised, the Option will terminate immediately
prior to the consummation of such proposed action.
8. Insufficient Authorized Shares. In the event the option granted
herein is exercised, in whole or in part, at a time when insufficient authorized
capital shares of the Corporation are available for issuance, the Corporation
agrees to take all necessary and appropriate steps to provide sufficient
authorized capital shares to be issued pursuant to this option.
-3-
<PAGE> 4
9. Restrictions on Transfer of Shares. Except for a transfer upon the
death of the Optionee, the Corporation and Optionee agree that this is a
personal, non-transferable and nonassignable option.
10. Payment of Purchase Price. Except as provided below, payment in
full, in cash, shall be made for all stock purchased at the time written notice
of exercise of an option is given to the Corporation, and proceeds of any
payment shall constitute general funds of the Corporation.
11. Representations. The Optionee represents and warrants to the
Corporation that the following is true:
11.1 The Optionee has sufficient knowledge, background and
experience in financial and business matters to evaluate the merits and risks of
an investment in the Corporation.
11.2 The Optionee is aware of the great risks involved in an
investment in the Corporation.
11.3 The Optionee acknowledges that he is aware of the fact
that the receipt and exercise of the option granted hereunder may have effects
on the Optionee's personal income tax situation and that he has been advised to
consult with a qualified tax advisor regarding the possible implications.
11.4 The Optionee is aware of the fact that the common stock
of the Corporation has not been registered, nor is registration contemplated
under the Securities Act of 1933, as amended, or under the securities laws of
any state. Accordingly, such stock must be held indefinitely unless it is
subsequently registered under said securities laws or unless, in the opinion of
counsel for the Corporation, a sale or transfer of such stock may be made
without registration thereunder.
11.5 The Optionee agrees that any stock purchased pursuant to
the options shall be purchased solely for the investment of the Optionee and not
for resale.
12. Restrictive Legend. Any certificate evidencing common stock of the
Corporation purchased under the options granted herein shall bear the
restrictive legend normally attached to stock of the Corporation and the records
of the Corporation will indicate the normal restrictions on transferability and
such restriction shall be the same as on all other stock of the Optionee.
13. Governing Law. This Agreement shall be interpreted and construed
according to and governed by the laws of the State of Alabama.
14. Entire Agreement. This Agreement contains the entire agreement of
the parties and it supercedes all previous agreements and communications,
written or oral, regarding the matters contained in these agreements. It may not
be changed orally, but may be changed only by an agreement
-4-
<PAGE> 5
in writing signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
15. Severability. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provision of this Agreement.
16. Authority. The provisions of this Agreement required to be
approved by the Board have been so approved and authorized.
17. Benefit. This Agreement shall bind all parties, their respective
heirs, executors, administrators and assigns, but nothing contained herein shall
be construed as an authorization or right of any party to assign his or her
rights or obligations hereunder except that upon the death of the Optionee the
estate of the Optionee may exercise the Optionee's rights hereunder in
accordance with Section 3.3 hereof. The Optionee shall have no right to assign
any option herein granted to him and any such attempted assignment shall be
ineffective.
18. Attorneys Fees. If any legal proceeding, including, but not
limited to, any arbitration brought pursuant to Section 19 hereof, is brought by
either party to this Agreement against the other party to enforce any provision
of this Agreement, then the prevailing party shall be entitled to receive from
the other party reimbursement for its reasonable attorneys' fee incurred in such
proceeding.
19. Arbitration. Except as otherwise specifically provided herein, it
is agreed by the parties hereto that any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled in Huntsville,
Alabama, by binding arbitration in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered may be entered in
any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal on the day and year first above written.
REVNET SYSTEMS, INC.
By /s/ Stuart Obermann
--------------------------
ATTEST: Its: CEO
--------------------------
- -------------------------------
Its
---------------------------
(Corporation)
/s/ Walter Thames (SEAL)
------------------------
WITNESS: Walter Thames
- -------------------------------
(Optionee)
-5-
<PAGE> 1
EXHIBIT 5.1
[COOLEY GODWARD LLP LETTERHEAD]
September 7, 1999
MESSAGEMEDIA, INC.
6060 Spine Road
Boulder, CO 80301
Dear Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by MessageMedia, Inc., a Delaware corporation (the "Company"),
of a Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission, covering the offering of an aggregate of up
to 1,148,493 shares of the Company's Common Stock, $.001 par value (the
"Shares"), including 466,818 shares issuable pursuant to the Decisive Technology
Corporation 1996 Stock Option Plan (the "Plan") and 681,675 shares issuable
pursuant to outstanding options granted outside of the Plan (the "Non-Plan
Option Agreement").
In connection with this opinion, we have examined and relied upon the
Registration Statement and related prospectus, the Plan, the Non-Plan Option
Agreements, the Company's Certificate of Incorporation and Bylaws, as amended,
and the originals or copies certified to our satisfaction of such records,
documents, certificates, memoranda and such other instruments as in our judgment
are necessary or appropriate to enable us to render the opinion expressed below.
We have assumed the genuineness and authenticity of all documents submitted to
us as originals, the conformity to originals of all documents submitted to us as
copies thereof and the due execution and delivery are a prerequisite to the
effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when issued and sold in accordance with the Plan or the
Non-Plan Option Agreements, as applicable, the Registration Statement and the
related prospectus, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ MICHAEL L. PLATT
Michael L. Platt
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of MessageMedia, Inc. pertaining to the Decisive Technology Corporation
1996 Stock Option Plan of our report dated February 2, 1999 except for Note 12,
for which the date is March 26, 1999, with respect to the consolidated financial
statements and schedule of MessageMedia, Inc. included in its Annual Report
(Form 10K) for the year ended December 31, 1998, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
---------------------
Ernst & Young LLP
Denver, Colorado
September 2, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated August 13, 1998 relating to the
financial statements of Email Publishing, Inc., which appears in the Current
Report on the MessageMedia, Inc. Form 8-K/A dated February 19, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Broomfield, Colorado
September 7, 1999
