-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, FNHA3Wn+jCdZqMuTaqsYUWaIYaBM6mzrnVrSNfXlZ2odbh01KyONNjZQ5gkaIMxf LTSvEl8DbsyUFKQ4AuNOXQ== 0000950117-02-000106.txt : 20020414 0000950117-02-000106.hdr.sgml : 20020414 ACCESSION NUMBER: 0000950117-02-000106 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 16 FILED AS OF DATE: 20020124 EFFECTIVENESS DATE: 20020124 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DOUBLECLICK INC CENTRAL INDEX KEY: 0001049480 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310] IRS NUMBER: 133870996 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-81348 FILM NUMBER: 02516687 BUSINESS ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 BUSINESS PHONE: 2126830001 MAIL ADDRESS: STREET 1: 450 W 33RD ST STREET 2: 16TH FL CITY: NEW YORK STATE: NY ZIP: 10001 S-8 1 a31908.txt DOUBLECLICK INC. FORM S-8 As filed with the Securities and Exchange Commission on January 24, 2002 Registration No. 333-_____________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------- FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 ------------------------- DOUBLECLICK INC. (Exact name of issuer as specified in its charter) Delaware 13-3870996 (State or other jurisdiction of incorporation or organization) (IRS Employer Identification No.)
450 West 33rd Street New York, New York 10001 (Address of principal executive offices) (Zip Code) ------------------------- MessageMedia, Inc. 1995 Stock Plan MessageMedia, Inc. 1999 Non-Officer Stock Option Plan Decisive Technology Corporation 1996 Stock Option Plan Randall Bachmeyer Agreement No. 1 Randall Bachmeyer Agreement No. 2 Christopher Buss Agreement Jon Clark Agreement Daniel Foster Agreement Laurence Jones Agreement Gerald Poch Agreement (Full title of the plans) ------------------------- Kevin P. Ryan Chief Executive Officer DoubleClick Inc. 450 West 33rd Street New York, New York 10001 (Name and address of agent for service) (212) 683-0001 (Telephone number, including area code, of agent for service) ------------------------- CALCULATION OF REGISTRATION FEE
Amount to be Offering Price Aggregate Amount of Title of Securities to be Registered Registered (1) per Share(2) Offering Price Registration Fee - ---------------------------------------------------------------------------------------------------------------------- MessageMedia, Inc. 1995 Stock Plan Common Stock, $0.001 par value 66,535 $ 90.68 $6,033,392.64 $555.07 - ---------------------------------------------------------------------------------------------------------------------- MessageMedia Inc. 1999 Non-Officer Stock Option Plan, Common Stock $0.001 par value 16,567 $101.18 $1,676,174.89 $154.21 - ---------------------------------------------------------------------------------------------------------------------- Decisive Technology Corporation 1996 Stock Option Plan Common Stock, $0.001 par value 15 $ 72.94 $ 1,094.08 $ .10 - ---------------------------------------------------------------------------------------------------------------------- Randall Bachmeyer Agreement No. 1 Common Stock, $0.001 par value 625 $ 80.05 $ 50,031.25 $ 4.60 - ---------------------------------------------------------------------------------------------------------------------- Randall Bachmeyer Agreement No. 2 Common Stock, $0.001 par value 2,651 $ 21.56 $ 57,155.56 $ 5.26 - ---------------------------------------------------------------------------------------------------------------------- Christopher Buss Agreement Common Stock, $0.001 par value 281 $ 21.56 $ 6,058.36 $ 0.56 - ---------------------------------------------------------------------------------------------------------------------- Jon Clark Agreement Common Stock, $0.001 par value 2,101 $ 21.56 $ 45,297.56 $ 4.17 - ---------------------------------------------------------------------------------------------------------------------- Daniel Foster Agreement Common Stock, $0.001 par value 81 $ 21.56 $ 1,746.36 $ 0.16 - ---------------------------------------------------------------------------------------------------------------------- Laurence Jones Agreement Common Stock, $0.001 par value 20,859 $143.35 $2,990,137.65 $275.09 - ---------------------------------------------------------------------------------------------------------------------- Gerald Poch Agreement Common Stock, $0.001 par value 1,453 $157.69 $ 229,123.57 $ 21.08 - ----------------------------------------------------------------------------------------------------------------------
(1) This Registration Statement shall also cover any additional shares of the Registrant's Common Stock which become issuable under the MessageMedia, Inc. 1995 Stock Plan, the MessageMedia, Inc. 1999 Non-Officer Stock Option Plan, the Decisive Technology Corporation 1996 Stock Option Plan, the Randall Bachmeyer Agreement No. 1, the Randall Bachmeyer Agreement No. 2, the Christopher Buss Agreement, the Jon Clark Agreement, the Daniel Foster Agreement, the Laurence Jones Agreement and the Gerald Poch Agreement by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant's receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Calculated solely for purposes of this offering under Rule 457(h) of the Securities Act of 1933, as amended, on the basis of the weighted average exercise price of the outstanding options. ================================================================================ PART II Information Required in the Registration Statement Item 3. Incorporation of Documents by Reference DoubleClick Inc. (the "Registrant") hereby incorporates by reference in this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the "SEC"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2000, filed with the SEC on March 13, 2001; (b) The Registrant's Quarterly Reports on Form 10-Q for the periods ending March 31, 2001, June 30, 2001 and September 30, 2001 filed with the SEC on May 15, 2001, August 14, 2001 and November 14, 2001 respectively; (c) The Registrant's Current Reports on Form 8-K filed with the SEC on February 2, 2001, February 5, 2001, March 22, 2001, June 14, 2001, October 17, 2001, November 21, 2001 and January 16, 2002; and (d) The Registrant's Registration Statement No. 000-23709 on Form 8-A filed with the SEC on February 2, 1998 and amended on February 9, 1998 and December 1, 1998, in which there is described the terms, rights and provisions applicable to the Registrant's outstanding Common Stock. All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "1934 Act"), after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. Description of Capital Stock Inapplicable. Item 5. Interests of Named Experts and Counsel Inapplicable. Item 6. Indemnification of Directors and Officers The amended and restated certificate of incorporation of the Registrant provides that, except to the extent prohibited by the Delaware General Corporation Law (the "DGCL"), no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director. Under the DGCL, the directors have a fiduciary duty to the Registrant which is not eliminated by this provision of the amended and restated certificate of incorporation and, in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available. In addition, each director will continue to be subject to liability under the DGCL for breach of the director's duty of loyalty to the Registrant, for acts or omissions not in good faith or involving intentional misconduct, for knowing violation of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are prohibited by the DGCL. This provision also does not affect the directors' responsibilities under any other laws, such as the federal securities laws or state or federal environmental laws. The Registrant has obtained liability insurance for its officers and directors. Section 145 of the DGCL empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that this provision does not eliminate or limit the liability of the director: (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under a corporation's certificate of incorporation or bylaws, any agreement, a vote of stockholders or otherwise. The Registrant's amended and restated certificate of incorporation eliminates the personal liability of directors to the fullest extent permitted by the DGCL and provides that the Registrant shall fully 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) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was serving at the request of the Registrant as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. Item 7. Exemption from Registration Claimed Inapplicable. Item 8. Exhibits
Exhibit Number Exhibit - ------ ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23709 on Form 8-A, and the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 23.3 Consent of KPMG LLP, Independent Auditors. 24 Power of Attorney is contained in this Registration Statement. 99.1 MessageMedia, Inc. 1995 Stock Plan. 99.2 MessageMedia, Inc. 1999 Non-Officer Stock Option Plan 99.3 Decisive Technology Corporation 1996 Stock Option Plan 99.4 Randall Bachmeyer Agreement No. 1 99.5 Randall Bachmeyer Agreement No. 2 99.6 Christopher Buss Agreement 99.7 Jon Clark Agreement 99.8 Daniel Foster Agreement 99.9 Laurence Jones Agreement 99.10 Gerald Poch Agreement 99.11 Form of Assumption Agreement 99.12 Form of Non-Plan Assumption Agreement
Item 9. Undertakings A. The Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement; (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "1933 Act"), (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement, and (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that clauses (1)(i) and (1)(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 furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this Registration Statement; (2) that for the purpose of determining any liability under the 1933 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; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold upon the termination of the offering. B. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification provisions summarized in Item 6 above, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. SIGNATURES Registrant. 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 New York, State of New York, on this 24th day of January, 2002. DoubleClick Inc. By: /s/ Kevin P. Ryan ------------------------------------ Kevin P. Ryan Chief Executive Officer and Director POWER OF ATTORNEY We, the undersigned officers and directors of DoubleClick Inc., a Delaware corporation, hereby severally constitute and appoint Kevin P. Ryan and Bruce Dalziel, and each of them individually, with full powers of substitution and resubstitution, our true and lawful attorneys and agents, with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents determine may be necessary, advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Signatures Title Date - --------------------------------------- --------------------------------------- ------------------- /s/ Kevin J. O'Connor Chairman of the Board January 24, 2002 - --------------------------------------- Kevin J. O'Connor /s/ Kevin P. Ryan Chief Executive Officer (principal January 24, 2002 - --------------------------------------- executive officer) and Director Kevin P. Ryan /s/ Dwight A. Merriman Director January 24, 2002 - --------------------------------------- Dwight A. Merriman /s/ David N. Strohm Director January 24, 2002 - --------------------------------------- David N. Strohm /s/ Mark E. Nunnelley Director January 24, 2002 - --------------------------------------- Mark E. Nunnelley /s/ W. Grant Gregory Director January 24, 2002 - --------------------------------------- W. Grant Gregory /s/ Don Peppers Director January 24, 2002 - --------------------------------------- Don Peppers /s/ Thomas S. Murphy Director January 24, 2002 - --------------------------------------- Thomas S. Murphy /s/ Bruce Dalziel Chief Financial Officer (principal January 24, 2002 - --------------------------------------- financial officer) Bruce Dalziel /s/ Thomas Etergino Vice President of Corporate Finance January 24, 2002 - --------------------------------------- (principal accounting officer) Thomas Etergino
SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 EXHIBITS TO FORM S-8 UNDER SECURITIES ACT OF 1933 DOUBLECLICK INC. EXHIBIT INDEX
Exhibit Number Exhibit - -------- ------- 4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration Statement No. 000-23709 on Form 8-A, and the exhibits thereto, which are incorporated herein by reference pursuant to Item 3(d) of this Registration Statement. 5 Opinion of Brobeck, Phleger & Harrison LLP. 23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants. 23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5. 23.3 Consent of KPMG LLP, Independent Auditors. 24 Power of Attorney is contained in this Registration Statement. 99.1 MessageMedia, Inc. 1995 Stock Plan. 99.2 MessageMedia, Inc. 1999 Non-Officer Stock Option Plan. 99.3 Decisive Technology Corporation 1996 Stock Option Plan. 99.4 Randall Bachmeyer Agreement No. 1 99.5 Randall Bachmeyer Agreement No. 2 99.6 Christopher Buss Agreement 99.7 Jon Clark Agreement 99.8 Daniel Foster Agreement 99.9 Laurence Jones Agreement 99.10 Gerald Poch Agreement 99.11 Form of Assumption Agreement. 99.12 Form of Non-Plan Assumption Agreement
EX-5 3 ex-5.txt EXHIBIT 5 DRAFT EXHIBIT 5 OPINION OF BROBECK, PHLEGER & HARRISON LLP January 24, 2002 DoubleClick Inc. 450 West 33rd Street New York, New York 10001 Re: DoubleClick Inc. Registration Statement on Form S-8 for an aggregate of 111,168 Shares of Common Stock and Related Stock Options Ladies and Gentlemen: We have acted as counsel to DoubleClick Inc., a Delaware corporation (the "Company"), in connection with the registration on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, of 111,168 shares of common stock (the "Shares") and related stock options for issuance under the MessageMedia, Inc. 1995 Stock Plan (the "1995 Plan"), the MessageMedia, Inc. 1999 Non-Officer Stock Option Plan (the "1999 Plan"), the Decisive Technology Corporation 1996 Stock Option Plan (the "Decisive Plan", and, together with the 1995 Plan and the 1999 Plan, the "Assumed Plans"), and the option agreements listed on Schedule 1 attached hereto (the "Agreements," and collectively with the Assumed Plans, the "Plans.") This opinion is being furnished in accordance with the requirements of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K. We have reviewed the Company's charter documents and the corporate proceedings taken by the Company in connection with the assumption of the Plans, and the outstanding options thereunder. Based on such review, we are of the opinion that if, as and when the Shares have been issued and sold (and the consideration therefor received) pursuant to the provisions of option agreements duly authorized under the applicable Plan, and in accordance with the Registration Statement, such Shares will be duly authorized, legally issued, fully paid and non-assessable. We consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. This opinion letter is rendered as of the date first written above and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein. Our opinion is expressly limited to the matters set forth above and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Plans, or the shares of Common Stock issuable under the Plans. Very truly yours, /s/ Brobeck, Phleger & Harrison LLP BROBECK, PHLEGER & HARRISON LLP Schedule 1 1. Randall Bachmeyer Agreement No. 1 2. Randall Bachmeyer Agreement No. 2 3. Christopher Buss Agreement 4. Jon Clark Agreement 5. Daniel Foster Agreement 6. Laurence Jones Agreement 7. Gerald Poch Agreement EX-23 4 ex23-1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated January 11, 2001, except as for Note 16 which is as of February 22, 2001, relating to the consolidated financial statements and financial statement schedule, which appears in DoubleClick Inc.'s Annual Report on Form 10-K for the year ended December 31, 2000. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP New York, New York January 21, 2002 EX-23 5 ex23-3.txt EXHIBIT 23.3 EXHIBIT 23.3 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation herein by reference in the Registration Statement on Form S-8 of DoubleClick Inc. of our report dated January 27, 1999, relating to the consolidated statements of operations, stockholders' equity (deficit), and cash flows of NetGravity, Inc. and subsidiaries for the year ended December 31, 1998, and the related financial statement schedule, which report appears in the December 31, 2000, annual report on Form 10-K of DoubleClick Inc. /s/ KPMG LLP January 21, 2002 San Francisco, California EX-99 6 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 MESSAGEMEDIA, INC. 1995 STOCK PLAN (AS AMENDED) 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 requirements relating to the administration of stock option plans under U. S. state corporate laws, U.S. federal and state securities laws, the Code, any stock exchange or quotation system on which the Common Stock is listed or quoted and the applicable laws of any foreign country or jurisdiction where Options or Stock Purchase Rights are, or will be, 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 MessageMedia, Inc., a Delaware 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. (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, 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) "Director" means a member of the Board. (k) "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. (l) "Exchange Act" means the Securities Exchange Act of 1934, as amended. (m) "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 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. (n) "Incentive Stock Option" means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code. (o) "Nonstatutory Stock Option" means an Option not intended to qualify as an Incentive Stock Option. -2- (p) "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. (q) "Option" means a stock option granted pursuant to the Plan. (r) "Optioned Stock" means the Common Stock subject to an Option. (s) "Optionee" means an Employee or Consultant who receives an Option. (t) "Parent" means a "parent corporation", whether now or hereafter existing, as defined in Section 424(e) of the Code. (u) "Plan" means this 1995 Stock Option Plan. (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 9,000,000 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 or Option repricing 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, except that if unvested Shares are repurchased by the Company at their original purchase price, such Shares shall become available for future grant under the Plan. -3- 4. Administration of the Plan. (a) Procedure. (i) Multiple Administrative Bodies. The Plan may be administered by different Committees with respect to different groups of Employees, Directors and Consultants. (ii) Section 162(m). To the extent that the Administrator determines it to be desirable to qualify Options granted hereunder as "performance-based compensation" within the meaning of Section 162(m) of the Code, the Plan shall be administered by a Committee of two or more "outside directors" within the meaning of Section 162(m) of the Code. (iii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3 of the Securities and Exchange Act of 1934, as amended ("Rule 16b-3"), the transactions contemplated hereunder shall be structured to satisfy the requirements for exemption under Rule 16b-3. (iv) Other Administration. Other than as provided above, the Plan shall be administered by (A) the Board or (B) a Committee, which Committee shall be constituted to satisfy Applicable Laws. (b) 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 or other securities of the Company are 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(m) of the Plan; (ii) to select the Employees, Directors and Consultants 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; -4- (vi) to determine the terms and conditions of any award granted hereunder. Such terms and conditions include, but are not limited to, the exercise price, the time or times when Options may be exercised (which may be based on performance criteria), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Option or the Common Stock relating thereto, based in each case on such factors as the Administrator, in its sole discretion, shall determine; (vii) to determine whether and under what circumstances an Option may be settled in cash under subsection 9(f) instead of Common Stock; (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; (ix) to allow Optionees to satisfy withholding tax obligations by electing to have the Company withhold from the Shares to be issued upon exercise of an Option that number of Shares having a Fair Market Value equal to the amount required to be withheld. 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. All elections by an Optionee to have Shares withheld for this purpose shall be made in such form and under such conditions as the Administrator may deem necessary or advisable; (x) to provide for the early exercise of unvested Options, subject to such terms and conditions as shall be determined by the Administrator; and (x) to construe and interpret the terms of the Plan and awards granted pursuant to the Plan. (c) 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, Directors and Consultants. Incentive Stock Options may be granted only to Employees. An Employee, Director or Consultant who has been granted an Option may, if otherwise eligible, be granted additional Options. (b) Each Option shall be designated in the 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 are granted. The -5- 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 confer upon any Optionee any right with respect to the continuation of the Optionee's service to the Company as an Employee, Director or Consultant, nor shall it interfere in any way with the Optionee's or the Company's right to terminate the Optionee's service to the Company at any time, with or without cause. (d) 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 500,000 Shares. (ii) The foregoing limitation shall be adjusted proportionately in connection with any change in the Company's capitalization as described in Section 11. (iv) If an Option is canceled 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. -6- 8. Option Exercise Price and Consideration. (a) Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option shall be determined by the Administrator, subject to the following: (i) In the case of an Incentive Stock Option (A) granted to an Employee who, at the time the Incentive Stock 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 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 paragraph (A) immediately above, 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, the per Share exercise price shall be determined by the Administrator. In the case of a Nonstatutory Stock Option intended to qualify as "performance-based compensation" within the meaning of Section 162(m) of the Code, the per Share exercise price shall be no less than 100% of the Fair Market Value per Share on the date of grant. (iii) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than 100% of the Fair Market Value per Share on the date of grant pursuant to a merger or other corporate transaction. (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) surrender of 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, (4) 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 (5) any combination of the foregoing methods of payment. In making its determination as to the type of consideration to accept, the Board shall consider if acceptance of such consideration may be reasonably expected to benefit the Company. -7- 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 Board, including performance criteria with respect to the Company and/or the Optionee, and as shall be permissible under the terms of the Plan. 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 Board, 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 (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 ninety-first (91st) day following 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, or to such other extent as may be determined by the Administrator. If the 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 Continuous Status as an Employee or Consultant as a result of his or her "disability," as defined in Section 22(e)(3) of the Code, the Optionee may exercise an Option within such period of time as is specified in the Option Agreement to the extent the Option is vested on the date of termination (but in no event later than the expiration of the term of such Option as set forth in the Option Agreement). In the absence of a specified time in the Option Agreement, the Option -8- shall remain exercisable for twelve (12) months following the Optionee's termination. If, on the date of termination, the Optionee is not vested as to the entire Option, the Shares covered by the unvested portion of the Option shall revert to the Plan. If, after termination, the Optionee does not exercise an Option 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, an 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 on the date of death. If, on the date of death, the Optionee was not entitled to exercise the 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 an 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) 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. 10. Non-Transferability of Options. Unless determined otherwise by the Administrator, an Option 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. If the Administrator makes an Option transferable, such Option shall contain such additional terms and conditions as the Administrator deems appropriate. 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 Board, 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 -9- 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 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. (c) Merger or Asset Sale. In the event of a merger of the Company with or into another corporation, or the sale of substantially all of the assets of the Company, each outstanding Option 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, the Optionee shall fully vest in and have the right to exercise the Option as to all of the Optioned Stock, including Shares as to which it would not otherwise be vested or exercisable. If an Option becomes fully vested and exercisable in lieu of assumption or substitution in the event of a merger or sale of assets, the Administrator 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 paragraph, 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 Share of Optioned Stock subject to the Option 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 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 is 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 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. -10- 13. Amendment and Termination of the Plan. (a) Amendment and Termination. The Board may at any time amend, alter, suspend or terminate the Plan. (b) Shareholder Approval. The Company shall obtain shareholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws. (c) Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan shall impair the rights of any Optionee, unless mutually agreed otherwise between the Optionee and the Administrator, which agreement must be in writing and signed by the Optionee and the Company. Termination of the Plan shall not affect the Administrator's ability to exercise the powers granted to it hereunder with respect to Options granted under the Plan prior to the date of such termination. 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. 15. Reservation of Shares. The Company, during the term of this Plan, shall 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 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 Board 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. -11- EX-99 7 ex99-2.txt EXHIBIT 99.2 EXHIBIT 99.2 MESSAGEMEDIA, INC. 1999 NON-OFFICER STOCK OPTION PLAN AS ADOPTED BY THE BOARD OF DIRECTORS EFFECTIVE OCTOBER 27, 1999 AS AMENDED AND RESTATED BY THE BOARD THROUGH DECEMBER 29, 2000 STOCKHOLDER APPROVAL NOT REQUIRED 1. PURPOSES. (a) The purpose of the Plan is to provide a means by which selected Employees (including Officers) and Consultants may be given an opportunity to benefit from increases in value of the Common Stock of the Company through the granting of Stock Awards. Only Nonstatutory Stock Options, stock bonuses, and rights to acquire restricted stock may be granted hereunder. (b) The Company, by means of the Plan, seeks to retain the services of persons who are Employees or Consultants at the time of grant of a Stock Award, to secure and retain the services of new Employees and Consultants, and to provide incentives for such persons to exert maximum efforts for the success of the Company and its Affiliates. 2. DEFINITIONS. As used herein, the following definitions shall apply: (a) "AFFILIATE" shall mean any parent corporation or subsidiary corporation of the Company, whether now or hereafter existing, as those terms are defined in Sections 424(e) and (f) respectively, of the Code, or such other entity which controls the Company or is controlled by the Company. (b) "BOARD" shall mean the Board of Directors of the Company. (c) "CODE" shall mean the Internal Revenue Code of 1986, as amended. (d) "COMMITTEE" shall mean a committee comprised of one or more members of the Board appointed by the Board in accordance with subsection 4(a) of the Plan. (e) "COMMON STOCK" shall mean the Company's common stock. (f) "COMPANY" shall mean MessageMedia, Inc., a Delaware corporation. (g) "CONSULTANT" shall mean any person, including an advisor or other form of independent contractor, engaged by the Company or an Affiliate to render consulting services and who is compensated for such services (provided that such services are not in connection with the offer or sale of securities in a capital-raising transaction, and do not directly or indirectly promote or maintain a market for the Company's securities), provided that the term "Consultant" shall not include Employees, Officers, Directors, or stockholders beneficially owning ten percent (10%) or more of the Company's Common Stock. (h) "CONTINUOUS SERVICE AS AN EMPLOYEE, DIRECTOR OR CONSULTANT" shall mean that the service of an individual to the Company, whether as an Employee, Director or Consultant, is not interrupted or terminated. The Board, in its sole discretion, may determine whether Continuous Service as an Employee, Director or Consultant shall be considered interrupted in the case of: (i) any leave of absence approved by the Board, including sick leave, military leave, or any other personal leave; or (ii) transfers between the Company, Affiliates or their successors. (i) "DIRECTOR" shall mean a member of the Board. (j) "DISABILITY" shall mean inability of a person, in the opinion of a qualified physician acceptable to the Company, to perform the major duties of that person's position with the Company or an Affiliate of the Company because of the sickness or injury of the person. (k) "EMPLOYEE" shall mean any person employed by the Company or by any Affiliate, excluding stockholders beneficially owning ten percent (10%) or more of the Company's Common Stock. Mere service as a Director or payment of a director's fee by the Company or an Affiliate shall not be sufficient to constitute "employment" by the Company or an Affiliate. (l) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended. (m) "FAIR MARKET VALUE" means, as of any date, the value of a Share determined as follows: (i) If the Common Stock is listed on any established stock exchange, or traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair Market Value of a share of Common Stock shall be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or market (or if the Common Stock is traded on more than one exchange or market, on the exchange or market with the greatest volume of trading in Common Stock) on the trading day prior to the day of determination, as reported in THE WALL STREET JOURNAL or such other source as the Board deems reliable; (ii) In the absence of such markets for the Common Stock, the Fair Market Value shall be determined in good faith by the Board. (n) "NON-EMPLOYEE DIRECTOR" means a Director who either (i) is not a current Employee or Officer of the Company or its parent or a subsidiary, does not receive compensation (directly or indirectly) from the Company or its parent or a subsidiary for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act ("Regulation S-K")), does not possess an interest in any other transaction as to which disclosure would be required under Item 404(a) of Regulation S-K and is not engaged in a business relationship as to which disclosure would be required under Item 404(b) of Regulation S-K; or (ii) is otherwise considered a "non-employee director" for purposes of Rule 16b-3. 2 (o) "NONSTATUTORY STOCK OPTION" shall mean an Option not intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder. (p) "OFFICER" shall mean a person who possesses the authority of an "officer" as that term is used in Rule 4460(i)(1)(A) of the Rules of the National Association of Securities Dealers, Inc. For purposes of the Plan, "Officer" shall include any corporate officer with the title of vice president and above and any other Employee of the Company whom the Board or the Committee classifies as "Officer," unless the Board finds that such person does not possess the authority of an "officer" as that term is used in Rule 4460(i)(1)(A) of the Rules of the National Association of Securities Dealers, Inc. (q) "OPTION" shall mean a Nonstatutory Stock Option granted pursuant to the Plan. (r) "OPTION AGREEMENT" shall mean a written agreement between the Company and an Optionholder setting forth the terms and conditions of the grant of an individual Option. Each Option Agreement shall be subject to the terms and conditions of the Plan. (s) "OPTIONHOLDER" shall mean a person to whom an Option is granted pursuant to the Plan, or, if applicable, such other person who holds an outstanding Option. (t) "PARTICIPANT" means a person to whom a Stock Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Stock Award. (u) "PLAN" shall mean this 1999 Non-Officer Stock Option Plan. (v) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended. (w) "SHARE" shall mean a share of Common Stock, as adjusted in accordance with Section 9 of the Plan. (x) "STOCK AWARD" means any right granted under the Plan, including a Nonstatutory Stock Option, a stock bonus and a right to acquire restricted stock. (y) "STOCK AWARD AGREEMENT" means a written agreement between the Company and a holder of a Stock Award evidencing the terms and conditions of an individual Stock Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the Plan. 3. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 9 of the Plan, the maximum aggregate number of Shares which may be issued under the terms of a Stock Award Agreement and the Plan is three million (3,000,000) Shares. The Shares may be authorized but unissued Common Stock or reacquired Common Stock treated as shares or otherwise. If a Stock Award should expire or become unexercisable for any reason without having been exercised in full, the 3 unpurchased Shares that were subject thereto shall, unless the Plan shall have been terminated, become available for future grant under the Plan. 4. ADMINISTRATION OF THE PLAN. (a) PROCEDURE. The Plan shall be administered by the Board. The Board may appoint a Committee consisting of not less than two (2) members of the Board to administer the Plan on behalf of the Board, subject to such terms and conditions as the Board may prescribe. At the discretion of the Board, the Committee may consist solely of two or more Non-Employee Directors in accordance with Rule 16b-3. Once appointed, the Committee shall continue to serve 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. Notwithstanding anything in this Section 4 to the contrary, at any time the Board or the Committee may delegate to a committee of one or more members of the Board who are not Non-Employee Directors the authority to grant Stock Awards to all Employees and Consultants who are not then subject to Section 16 of the Exchange Act. (b) POWERS OF THE BOARD. Subject to the provisions of the Plan, the Board shall have the authority to administer, interpret and amend the Plan and the Stock Awards so long as no such exercise of authority is directly contradictory to the terms and conditions of the Plan. The Board's authority shall include the following powers: (i) to grant Stock Awards under the Plan; provided, however, that only Nonstatutory Stock Options may be granted under the Plan; (ii) to determine, upon review of relevant information and in accordance with subsection 2(m) of the Plan, the Fair Market Value of the Common Stock; (iii) to determine the exercise price per share of Options to be granted, which exercise price shall be determined in accordance with subsection 7(b) of the Plan; (iv) to determine the Employees or Consultants to whom, and the time or times at which, Stock Awards shall be granted and the number of Shares to be represented by each Stock Award, provided that no Stock Award may be granted to a person who is not either an Employee or a Consultant; (v) to interpret the Plan and any Stock Award Agreement; (vi) to prescribe, amend and rescind rules and regulations relating to the Plan; (vii) to determine the terms and provisions of each Stock Award granted (which need not be identical) in accordance with the Plan, and, with the consent of the holder thereof with respect to any adverse change, modify or amend each Stock Award; (viii) to accelerate or defer (the latter with the consent of the holder thereof) the exercise date and vesting schedule of any Stock Award; (ix) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of a Stock Award previously granted by the Board or to carry out any other task related to the administration of the Plan; (x) to amend, suspend or terminate the Plan in accordance with Section 12 of the Plan; and (xi) to make all other determinations deemed by the Board to be necessary or advisable or appropriate for the administration of the Plan. Any and all of these powers, as well as the Board's overall authority to administer the Plan, may be exercised in the Board's sole discretion. (c) EFFECT OF BOARD'S DECISION. All decisions, determinations and interpretations of the Board shall be final and binding on all Participants and any other holders of any Stock Awards granted under the Plan. 4 5. ELIGIBILITY. (a) Stock Awards may be granted only to Employees (including Officers) or Consultants as defined in Section 2 hereof. An Employee or Consultant who has been granted a Stock Award, if he or she remains eligible, may be granted an additional Stock Award or Stock Awards. Notwithstanding the foregoing, the aggregate number of shares of Common Stock issued pursuant to Stock Awards granted to Officers cannot exceed forty percent (40%) of the number of shares of Common Stock reserved for issuance under the Plan as determined at the time of each issuance to an Officer, except that there shall be excluded from this calculation shares of Common Stock issued to Officers not previously employed by the Company pursuant to Stock Awards granted as an inducement essential to such individuals entering into employment contracts with the Company. (b) Stock Awards may not be granted to Consultants who are not natural persons unless the Company determines both (i) that such grant (A) shall be registered in a manner other than on the Form S-8 Registration Statement under the Securities Act (e.g., on a Form S-3 Registration Statement) or (B) does not require registration under the Securities Act in order to comply with the requirements of the Securities Act, if applicable, and (ii) that such grant complies with the securities laws of all other relevant jurisdictions. (c) The Plan shall not confer upon any Participant any right with respect to continuation of employment or consultancy by the Company, nor shall it interfere in any way with the Participant's right or the Company's right to terminate the Participant's employment at any time, for any reason or no reason, with or without cause, or to terminate the Participant's consultancy pursuant to the terms of the Consultant's agreement with the Company. 6. TERM OF THE PLAN. The Plan shall become effective upon its adoption by the Board of Directors. It shall continue in effect until terminated under Section 12 of the Plan. 7. OPTION PROVISIONS. (a) TERM OF OPTION. The term of each Option shall be ten (10) years from the date of grant thereof or such shorter term as may be provided in the Option Agreement. (b) EXERCISE PRICE, CONSIDERATION AND VESTING. (i) EXERCISE PRICE. The exercise price of each Option shall be not less than 100% of the Fair Market Value of the Common Stock subject to the Option on the date of grant. (ii) CONSIDERATION. The consideration to be paid for the Shares to be issued upon exercise of an Option shall be paid, to the extent permitted by applicable statutes and regulations, as follows: (i) in cash (or by check), or (ii) at the discretion of the Board, as determined either at the time of the grant of the Option or at any time thereafter at or before the time the Option is exercised: (A) by delivery to the Company of other Common Stock of the Company (which has either been held for the period required to avoid a charge to the Company's 5 reported earnings (generally six months) or that was not acquired, directly or indirectly from the Company, that are owned free and clear of any liens, claims, encumbrances or security interests, and that are valued at Fair Market Value on the date of exercise), or (B) in any other form of legal consideration that may be acceptable to the Board, or (iii) any combination thereof. (iii) VESTING. The total number of Shares subject to an Option may, but need not, become exercisable in periodic installments (which may, but need not, be equal). The Option Agreement may provide that, from time to time during each of such installment periods, the Option may become exercisable ("vest") with respect to some or all of the Shares allotted to that period, and may be exercised with respect to some or all of the Shares allotted to such period and/or any prior period as to which the Option became vested but was not fully exercised. The Option may be subject to such other terms and conditions on the time or times when it may be exercised (which may be based on performance or other criteria) as the Board may deem appropriate. The provisions of this subsection 7(b) are subject to any Option provisions governing the minimum number of Shares as to which an Option may be exercised. (c) EXERCISE OF OPTION. (i) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Board, including performance criteria with respect to the Company and/or the Optionholder, and as shall be permissible under the terms of the Plan. (ii) An Option may not be exercised for a fraction of a Share. (iii) 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 Board, consist of any consideration and method of payment allowable under subsection 7(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 stockholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. No adjustment will be made (for example, 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 9 of the Plan. (iv) Exercise of an Option in any manner shall result in a decrease in the number of Shares that thereafter may be issued, for purposes of the Plan and such Option, by the number of Shares as to which the Option is exercised. (v) The Option may, but need not, include a provision whereby the Optionholder may elect to exercise the Option at any time while the Option remains outstanding as to any part or all of the Shares subject to the Option, subject to a repurchase right in favor of the Company on such terms as the Board shall establish, which may include the use of an escrow account to hold Shares remaining subject to the Company's repurchase right. 6 (d) TERMINATION OF CONTINUOUS SERVICE AS AN EMPLOYEE, DIRECTOR OR CONSULTANT. If an Optionholder ceases his or her Continuous Service as an Employee, Director or Consultant for any reason other than death or Disability, the Optionholder may, but only within three (3) months (or such longer or shorter period, which in no event shall be less than thirty (30) days, specified in the Option Agreement) after the end of the Optionholder's Continuous Service as an Employee, Director or Consultant, exercise the Option to the extent that the Optionholder was entitled to exercise it at the date of such termination. To the extent that the Optionholder was not entitled to exercise the Option at the date of such termination, or if the Optionholder does not exercise such Option within the time specified herein, the Option shall terminate. (e) DEATH OF OPTIONHOLDER. In the event of the death of an Optionholder during the term of a Option granted to such Optionholder and who remained at the time of his or her death in Continuous Service as an Employee, Director or Consultant since the date of grant of the Option, the Option may be exercised at any time within twelve (12) months (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the Option Agreement) following the date of death, by the Optionholder's estate or by a person who acquired the right to exercise the Option by bequest, inheritance, beneficiary designation or otherwise, to the extent that the Optionholder was entitled to exercise it on the date of death. To the extent that the Optionholder was not entitled to exercise the Option on the date of death that portion of the Option shall terminate on the Optionholder's date of death. To the extent that the Optionholder was entitled to exercise the Option on the date of death, if the Option is not exercised within the time specified herein, the Option shall terminate. (f) DISABILITY OF OPTIONHOLDER. In the event of the termination of an Optionholder's Continuous Service as an Employee, Director or Consultant on account of Disability of the Optionholder during the term of an Option granted to such Optionholder and who remained at the time of his or her termination on account of Disability in Continuous Service as an Employee, Director or Consultant since the date of grant of the Option, the Optionholder may, but only within twelve (12) months (or such longer or shorter period, which in no event shall be less than six (6) months, specified in the Option Agreement) after the date the Optionholder ceases Continuous Service as an Employee, Director or Consultant on account of such Disability, exercise the Option to the extent that the Optionholder was entitled to exercise it at the date of such termination. To the extent that the Optionholder was not entitled to exercise the Option at the date of such termination, that portion of the Option shall terminate on the Optionholder's date of Disability. To the extent that the Optionholder was entitled to exercise the Option on the date of Disability if the Optionholder does not exercise such Option (which the Optionholder was entitled to exercise) within the time specified herein, the Option shall terminate. (g) WITHHOLDING. To the extent provided by the terms of the Option Agreement, the Optionholder may satisfy any federal, state or local tax withholding obligation relating to the exercise of such Option by any of the following means or by a combination of such means or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold Shares from the Shares otherwise issuable to the Optionholder as a result of the exercise of the Option; or (iii) delivering to the Company owned and unencumbered 7 Shares of the Common Stock of the Company. Notwithstanding the foregoing, nothing in this subsection 7(g) shall abridge the Company's right to withhold from any remuneration paid to the Optionholder by the Company. (h) TRANSFERABILITY OF OPTIONS. Except as otherwise expressly provided in the terms of the Option Agreement, the Option 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 Optionholder, only by the Optionholder. Notwithstanding the foregoing, the Optionholder may, by delivering written notice to the Company, in a form satisfactory to the Company, designate a third party who, in the event of the death of the Optionholder, shall thereafter be entitled to exercise the Option. 8. PROVISIONS OF STOCK AWARDS OTHER THAN OPTIONS. (a) STOCK BONUS AWARDS. Each stock bonus agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of stock bonus agreements may change from time to time, and the terms and conditions of separate stock bonus agreements need not be identical, but each stock bonus agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: (i) CONSIDERATION. A stock bonus may be awarded in consideration for past services actually rendered to the Company or an Affiliate for its benefit. (ii) VESTING. Shares of Common Stock awarded under the stock bonus agreement may, but need not, be subject to a share repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board. (iii) TERMINATION OF PARTICIPANT'S CONTINUOUS SERVICE. In the event a Participant's Continuous Service terminates, the Company may reacquire any or all of the shares of Common Stock held by the Participant which have not vested as of the date of termination under the terms of the stock bonus agreement. (iv) TRANSFERABILITY. Rights to acquire shares of Common Stock under the stock bonus agreement shall be transferable by the Participant only upon such terms and conditions as are set forth in the stock bonus agreement, as the Board shall determine in its discretion, so long as Common Stock awarded under the stock bonus agreement remains subject to the terms of the stock bonus agreement. (b) RESTRICTED STOCK AWARDS. Each restricted stock purchase agreement shall be in such form and shall contain such terms and conditions as the Board shall deem appropriate. The terms and conditions of the restricted stock purchase agreements may change from time to time, and the terms and conditions of separate restricted stock purchase agreements need not be identical, but each restricted stock purchase agreement shall include (through incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions: 8 (i) PURCHASE PRICE. The purchase price of restricted stock awards shall not be less than eighty-five percent (85%) of the Common Stock's Fair Market Value on the date such award is made or at the time the purchase is consummated. (ii) CONSIDERATION. The purchase price of Common Stock acquired pursuant to the restricted stock purchase agreement shall be paid either: (i) in cash at the time of purchase; (ii) at the discretion of the Board, according to a deferred payment or other similar arrangement with the Participant; or (iii) in any other form of legal consideration that may be acceptable to the Board in its discretion; provided, however, that at any time that the Company is incorporated in Delaware, then payment of the Common Stock's "par value," as defined in the Delaware General Corporation Law, shall not be made by deferred payment. (iii) VESTING. Shares of Common Stock acquired under the restricted stock purchase agreement may, but need not, be subject to a share repurchase option in favor of the Company in accordance with a vesting schedule to be determined by the Board. (iv) TERMINATION OF PARTICIPANT'S CONTINUOUS SERVICE. In the event a Participant's Continuous Service terminates, the Company may repurchase or otherwise reacquire any or all of the shares of Common Stock held by the Participant which have not vested as of the date of termination under the terms of the restricted stock purchase agreement. (v) TRANSFERABILITY. Rights to acquire shares of Common Stock under the restricted stock purchase agreement shall be transferable by the Participant only upon such terms and conditions as are set forth in the restricted stock purchase agreement, as the Board shall determine in its discretion, so long as Common Stock awarded under the restricted stock purchase agreement remains subject to the terms of the restricted stock purchase agreement. (c) WITHHOLDING OBLIGATIONS. To the extent provided by the terms of a Stock Award Agreement, the Participant may satisfy any federal, state or local tax withholding obligation relating to the exercise or acquisition of Common Stock under a Stock Award by any of the following means (in addition to the Company's right to withhold from any compensation paid to the Participant by the Company) or by a combination of such means: (i) tendering a cash payment; (ii) authorizing the Company to withhold shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Stock Award, provided, however, that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld by law; or (iii) delivering to the Company owned and unencumbered shares of Common Stock. 9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. (a) CAPITALIZATION ADJUSTMENTS. If any change is made in the Common Stock subject to the Plan, or subject to any Stock Award, without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company), the Plan will be appropriately adjusted in the class(es) and maximum number of securities subject to the Plan pursuant to Section 3, and 9 the outstanding Stock Awards will be appropriately adjusted in the class(es) and number of securities and price per Share subject to such outstanding Stock Awards. The Board shall make such adjustments, and its determination shall be final, binding and conclusive. (The conversion of any convertible securities of the Company shall not be treated as a transaction "without receipt of consideration" by the Company.) (b) CHANGE IN CONTROL--DISSOLUTION OR LIQUIDATION. In the event of a dissolution or liquidation of the Company, then all outstanding Stock Awards shall terminate immediately prior to such event. (c) CHANGE IN CONTROL--ASSET SALE, MERGER, CONSOLIDATION OR REVERSE MERGER. In the event of (i) a sale, lease or other disposition of all or substantially all of the assets of the Company, (ii) a merger or consolidation in which the Company is not the surviving corporation, or (iii) a reverse merger in which the Company is the surviving corporation but the shares of Common Stock outstanding immediately preceding the merger are converted by virtue of the merger into other property, whether in the form of securities, cash or otherwise, then any surviving corporation or acquiring corporation shall assume any Stock Awards outstanding under the Plan or shall substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this subsection 9(c)) for those outstanding under the Plan. In the event any surviving corporation or acquiring corporation refuses to assume such Stock Awards or to substitute similar stock awards for those outstanding under the Plan, then with respect to Stock Awards held by Participants whose Continuous Service has not terminated, the vesting of such Stock Awards (and, if applicable, the time during which such Stock Awards may be exercised) shall be accelerated in full, and the Stock Awards shall terminate if not exercised (if applicable) at or prior to such event. With respect to any other Stock Awards outstanding under the Plan, such Stock Awards shall terminate if not exercised (if applicable) prior to such event. 10. CONDITIONS UPON ISSUANCE OF SHARES. The Company may require the Participant (or any person to whom a Stock Award is transferred) to execute such documents and to provide such representations, written assurances or information which the Company shall determine is necessary, desirable or appropriate to comply with applicable securities and other laws as a condition of granting a Stock Award to such Participant or permitting the Participant (or any person to whom a Stock Award is transferred) to exercise such Stock Award. The Company may, upon advice of counsel to the Company, place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with applicable securities and other laws, including, but not limited to, legends restricting the transfer of the shares. 11. RESERVATION OF SHARES. (a) 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. (b) 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 10 lawful 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. 12. AMENDMENT, SUSPENSION AND TERMINATION OF THE PLAN AND STOCK AWARDS. (a) AMENDMENT, SUSPENSION AND TERMINATION. The Board may amend, suspend or terminate the Plan from time to time in such respects as the Board may deem advisable in the Board's sole discretion. Notwithstanding the foregoing, the Plan terminates when all reserved Shares have been issued and cannot return to the reserve. (b) EFFECT OF AMENDMENT, SUSPENSION OR TERMINATION. Any amendment, suspension or termination of the Plan shall not adversely affect Stock Awards already granted, as determined by the Board in good faith, and such Stock Awards shall remain in full force and effect as if the Plan had not been amended, suspended or terminated unless mutually agreed otherwise between the Participant and the Board, which agreement must be in writing and signed by the Participant and the Company. Notwithstanding the foregoing, any amendment which increases the benefits provided or to be provided under the Plan shall not require the consent of the Participants. (c) AMENDMENT OF STOCK AWARDS. The Board at any time, and from time to time, may amend the terms of some or all Stock Awards; provided, however, that if the Board makes a good faith determination that the effect of such an amendment, taken as a whole, would be to impair the Participant's rights and/or increase the Participant's obligations under the Stock Award, then such amendment shall not be effective as to a particular Stock Award unless the Company requests the consent of the Participant and such Participant consents in writing. 13. USE OF PROCEEDS FROM STOCK. Proceeds from the sale of Common Stock pursuant to Stock Awards shall constitute general funds of the Company. 14. EFFECTIVE DATE. The Plan shall become on the date the Plan is adopted by the Board. 15. CHOICE OF LAW. The law of the State of Colorado shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such state's conflict of laws rules. 11 EX-99 8 ex99-3.txt EXHIBIT 99.3 EXHIBIT 99.3 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, 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. 2 (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 3 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; 4 (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. 5 (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. 6 (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 7 (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. 8 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 9 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 10 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. 11 EX-99 9 ex99-4.txt EXHIBIT 99.4 EXHIBIT 99.4 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 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. 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. 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. 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. 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. EX-99 10 ex99-5.txt EXHIBIT 99.5 EXHIBIT 99.5 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"): 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- 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- 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- 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- EX-99 11 ex99-6.txt EXHIBIT 99.6 EXHIBIT 99.6 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 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"): 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- 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- 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- 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- EX-99 12 ex99-7.txt EXHIBIT 99.7 EXHIBIT 99.7 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 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"): 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- 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- 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- 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- EX-99 13 ex99-8.txt EXHIBIT 99.8 EXHIBIT 99.8 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 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"): 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- 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- 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- 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- EX-99 14 ex99-9.txt EXHIBIT 99.9 EXHIBIT 99.9 MESSAGEMEDIA, INC. 1995 STOCK PLAN NONSTATUTORY STOCK OPTION (NON-PLAN) A. LAURENCE JONES ("OPTIONHOLDER"): MessageMedia, Inc. (the "Company"), has granted to you, the optionholder named above, a nonstatory option to purchase shares of the common stock of the Company ("Common Stock). The details of your option are as follows: 1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of shares of Common Stock subject to this option is one million four hundred thirty-five thousand (1,435,000). 2. VESTING. a) In General. Subject to the conditions contained herein, 17,000 shares shall vest on April 1, 1999, thereafter 29,729 1/6 shares shall vest on the 1st of each month for the remainder of calendar year 1999; thereafter 29,395 5/6 shares shall vest on the 1st of each month during calendar years 2000, 2001 and 2002; 29,729 1/6 shares shall vest on January 1, 2003 and 30,729 1/6 shares shall vest thereafter on the 1st of each month until all of the shares subject to this option are fully vested, provided that vesting will cease upon the termination of your Continuous Status as an Employee or Consultant. As used herein, "Continuous Status as an Employee or Consultant" means that your employment or consulting relationship with the Company, or any parent or subsidiary thereof, is not interrupted or terminated. b) Accelerated Vesting. Subject to any applicable conditions and limitations provided in that certain Employment Agreement by and between you and the Company effective as of March 1, 1999 (the "Employment Agreement"), including, but not limited to, execution of release of claims by you and parachute payment provisions, the vesting of the shares provided for in subsection 2(a) shall accelerate as follows: i) If you voluntarily terminate your employment with the Company for "good reason" or your employment is terminated by the Company for reasons other than "for cause" (as those terms are described in the Employment Agreement), then the vesting with respect to this option shall immediately accelerate by an additional eighteen (18) months. ii) In the event of a Change in Control (as that terms is defined in the Employment Agreement), then all unvested shares subject to your option shall be fully vested and exercisable in full. 3. EXERCISE PRICE AND METHOD OF PAYMENT. a) Exercise Price. The exercise price of this option is six dollars and twenty-five cents ($6.25) per share, being not less than the fair market value of the Common Stock on the Date of Grant of this option. b) Method of Payment. Payment of the exercise price per share is due in full upon exercise of all or any part of each installment which has accrued to you. You may elect, to the extent permitted by applicable statutes and regulations, to make payment of the exercise price under one of the following alternatives: i) Payment of the exercise price per share in cash (including check) at the time of exercise; ii) Payment pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board which, prior to the issuance of Common Stock, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise price to the Company from the sales proceeds; iii) Provided that at the time of exercise the Company's Common Stock is publicly traded and quoted regularly in the Wall Street Journal, payment by delivery of already-owned shares of Common Stock, held for the period required to avoid a charge to the Company's reported earnings, and owned free and clear of any liens, claims, encumbrances or security interests, which Common Stock shall be valued at its fair market value on the date of exercise; or iv) Payment by a combination of the methods of payment permitted by subparagraph 3(b)(i) through 3(b)(iii) above. 4. WHOLE SHARES. This option may not be exercised for any number of shares which would require the issuance of anything other than whole shares. 5. CAPITALIZATION ADJUSTMENTS. The number of shares subject to your option and your exercise price per share specified herein may be appropriately adjusted from time to time for Capitalization Adjustments. For this purpose, "Capitalization Adjustments" means a change in the stock subject to your option, without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction not involving the receipt of consideration by the Company). The Board, the determination of which shall be final, binding and conclusive, shall make such adjustments. (The conversion of any convertible securities of the Company shall not be treated as a transaction "without receipt of consideration" by the Company.) 6. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary contained herein, this option may not be exercised unless the shares issuable upon exercise of this option are then registered under the Securities Act of 1933, as amended (the "Act") or, if such shares are not then so registered, the Company has determined that such exercise and issuance would be exempt from the registration requirements of the Act. 7. TERM. The term of this option commences on March 1, 1999 (the "Date of Grant") and expires on February 28, 2009 (the "Expiration Date," which date shall be no more than ten (10) years from the Date of Grant), unless this option expires sooner as set forth below. In no event may this option be exercised on or after the Expiration Date. This option shall terminate prior to the Expiration Date as follows: three (3) months after the termination of your Continuous Status as an Employee or Consultant with the Company for any reason or for no reason unless: a) such termination of Continuous Status as an Employee or Consultant is due to your "disability" (as defined in Section 22(e)(3) of the Code), in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months following such termination of Continuous Status as an Employee or Consultant; or b) such termination of Continuous Status as an Employee or Consultant is due to your death, in which event the option shall expire on the earlier of the Expiration Date set forth above or twelve (12) months after your death; or However, this option may be exercised following termination of Continuous Status as an Employee or Consultant only as to that number of shares as to which it was exercisable on the date of termination of Continuous Status as an Employee or Consultant under the provisions of paragraph 2 of this option. 8. EXERCISE a) This option may be exercised, to the extent specified above, by delivering a notice of exercise (in a form designated by the Company) together with the exercise price to the Secretary of the Company, or to such other person as the Company may designate, during regular business hours, together with such additional documents as the Company may then require as specified herein. b) By exercising this option you agree that i) as a precondition to the completion of any exercise of this option, the Company may require you to enter an arrangement, providing for the cash payment by you to the Company of any tax withholding obligation of the Company arising by reason of: (1) the exercise of this option; (2) the lapse of any substantial risk of forfeiture to which the shares are subject at the time of exercise; or (3) the disposition of shares acquired upon such exercise. You also agree that any exercise of this option has not been completed and that the Company is under no obligation to issue any Common Stock to you until such an arrangement is established or the Company's tax withholding obligations are satisfied, as determined by the Company; and ii) the Company (or a representative of the underwriters) may, in connection with any underwritten registration of the offering of any securities of the Company under the Act, require that you not sell or otherwise transfer any shares of Common Stock or other securities of the Company for a period of time specified by the underwriters (not to exceed one hundred eighty (180) days) following the effective date of the registration statement of the Company filed under the Act. You further agree to execute and deliver such other agreements as may be reasonably requested by the Company and/or the underwriter(s) that are consistent with the foregoing or that are necessary to give further effect thereto. In order to enforce the foregoing covenant, you further agree that the Company may impose stop-transfer instructions with respect to securities subject to the foregoing restrictions until the end of such period. iii) the Company may require you 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. 9. TRANSFERABILITY. This option is not transferable, except by will or by the laws of descent and distribution, and is exercisable during your life only by you. Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory to the Company, you may designate a third party who, in the event of your death, shall thereafter be entitled to exercise this option. 10. OPTION NOT A SERVICE CONTRACT. This option is not an employment contract and nothing in this option shall be deemed to create in any way whatsoever any obligation on your part to continue in the employ of the Company, or of the Company to continue your employment with the Company. In addition, nothing in this option shall obligate the Company or any Affiliate of the Company, or their respective shareholders, Board of Directors, officers, or employees to continue any relationship which you might have as a Director or Consultant for the Company or Affiliate of the Company. 11. NOTICES. Any notices provided for in this option shall be given in writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five (5) days after deposit in the United States mail, postage prepaid, address to you at the address specified below or at such other address as you hereafter designate by written notice to the Company. 12. GOVERNING AUTHORITY. This option is subject to all interpretations, amendments, rules and regulations that may from time to time be promulgated and adopted by the Company. This authority shall be exercised by the Board of by a committee of one or more members of the Board in the event that the Board delegates its authority to a committee. The Board, in the exercise of this authority, may correct any defect, omission or inconsistency in this option in a manner and to the extent the Board shall deem necessary to desirable to make this option fully effective. References to the Board also include any committee appointed by the Board to administer and interpret this option. Any interpretations, amendments, rules and regulations promulgated by the Board shall be final and binding upon the Company and its successors in interest as well as you and your heirs, assigns, and other successors in interest. Dated this 27 day of April 1999. Very truly yours, MESSAGEMEDIA, INC. By: /s/ ---------------------------- Duly authorized on behalf of the Board of Directors The undersigned: (i) Acknowledges receipt of the foregoing option and the attachments referenced therein and understands that all rights and liabilities with respect to this option are set forth in the option; and (ii) Acknowledges that as of the date of grant of this option, it sets forth the entire understanding between the undersigned optionholder and the Company and any Parent or Subsidiary regarding the acquisition of stock in the Company and supersedes all prior oral and written agreements on that subject with the exception of (i) the options previously granted and delivered to the undersigned under stock option plans of the Company, and (ii) the following agreements only. NONE: -------------- (Initial) OTHER: ------------------------------- ------------------------------- A. Laurence Jones ------------------------------- OPTIONHOLDER Address: 840 6th St. ------------------------------- Boulder, CO 80302 ------------------------------- EX-99 15 ex99-10.txt EXHIBIT 99.10 EXHIBIT 99.10 - -------------------------------------------------------------------------------- MessageMedia, Inc. Notice of Grant of Stock Options ID:33-0612880 and Option Agreement 371 Centennial Prkwy Louisville CO 80027 - -------------------------------------------------------------------------------- Gerald A. Poch Option Number: 00000772 C/O Pequot Capital Management Plan: OOP 500 Nyala Farm Road Westport, CT 06880 ID: - -------------------------------------------------------------------------------- Effective 3/26/99 you have been granted a(n) Non-Qualified Stock Option to buy 100,000 shares of MessageMedia, Inc. (the Company) stock at $6.8750 per share. The total option price of the shares granted is $687,500.00. Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration ---------- ------------- ------------- -------------- 25,000 On Vest Date 3/26/00 3/26/09 25,000 On Vest Date 3/26/01 3/26/09 25,000 On Vest Date 3/26/02 3/26/09 25,000 On Vest Date 3/26/03 3/26/09
- -------------------------------------------------------------------------------- By your signature and the Company's signature below, you and the Company agree that these options are granted under and governed by the terms and conditions of the Company's Stock Option Plan as amended and the Option Agreement, all of which are attached and made a part of this document. - -------------------------------------------------------------------------------- _____________________________________ __________________________________ MessageMedia, Inc. Date _____________________________________ __________________________________ Gerald A. Poch Date EX-99 16 ex99-11.txt EXHIBIT 99.11 EXHIBIT 99.11 EFFECTIVE DATE: January 18, 2002 DOUBLECLICK INC. STOCK OPTION ASSUMPTION AGREEMENT Dear FNAME LNAME: As you know, on January 18, 2002 (the "Closing Date") DoubleClick Inc. ("DoubleClick") acquired MessageMedia, Inc. ("MessageMedia") (the "Acquisition"). On the Closing Date you held one or more outstanding options to purchase MessageMedia common stock granted to you under one or more of MessageMedia's option plans (each, a "Plan", and collectively, the "Plans") and documented with one or more Stock Option Agreement(s) (each, an "Option Agreement" and collectively, the "Option Agreements") issued to you under the Plans (the "MessageMedia Options"). In accordance with the Acquisition, on the Closing Date, DoubleClick assumed all obligations of MessageMedia under the MessageMedia Options. As such, each outstanding MessageMedia Option has been converted into an option to purchase 0.014536 of a share of DoubleClick common stock (the "Exchange Ratio"), with the exercise price adjusted accordingly. This Agreement evidences the assumption of your MessageMedia Options, including the necessary adjustments to your MessageMedia Options required by the Acquisition. Your MessageMedia Options immediately before and after the Acquisition are as follows:
MESSAGEMEDIA STOCK OPTIONS DOUBLECLICK ASSUMED OPTIONS # of Shares of MessageMedia # of Shares of DoubleClick MessageMedia Exercise Price DoubleClick Exercise Price Common Stock Per Share Common Stock Per Share Old_Share $ OLD_ New_Share $ NEW_
The post-Acquisition adjustments are based on the Exchange Ratio and are intended to: (i) assure that the total spread of each assumed MessageMedia Option (i.e. the difference between the aggregate fair market value and the aggregate exercise price) does not exceed the total spread that existed immediately prior to the Acquisition; (ii) to preserve, on a per share basis, the ratio of exercise price to fair market value that existed immediately prior to the Acquisition; and (iii) to the extent applicable and allowable by law, to retain incentive stock option status under the Federal tax laws. Unless the context otherwise requires, any references in the Plans and the Option Agreements (i) to the "Company" or the "Corporation" means DoubleClick, (ii) to "Common Stock" or "Stock" means shares of DoubleClick common stock, (iii) to the "Board of Directors" or the "Board" means the Board of Directors of DoubleClick and (iv) to the "Committee" means the Compensation Committee of the DoubleClick Board of Directors. All references in the Option Agreements and the Plans relating to your status as an employee of MessageMedia will now refer to your status as an employee of DoubleClick or any other present or future DoubleClick subsidiary. To the extent any Option Agreement or Plan allowed you to deliver MessageMedia common stock as payment for the exercise price, shares of DoubleClick common stock may be delivered in payment of the adjusted exercise price, and the period for which such shares of common stock were held prior to the Acquisition will be taken into account. The grant date, vesting commencement date, vesting schedule and the expiration date of your assumed MessageMedia Options remain the same as set forth in your Option Agreement(s), but the number of shares subject to each vesting installment has been adjusted to reflect the Exchange Ratio. All other provisions which govern either the exercise or the termination of the assumed MessageMedia Option(s) remain the same as set forth in your Option Agreement(s), and the provisions of the Option Agreement(s) (except as expressly modified by this Agreement and the Acquisition) will govern and control your rights under this Agreement to purchase shares of DoubleClick common stock. Upon your termination of employment with DoubleClick or its subsidiaries, as applicable, you will have the limited time period specified in your Option Agreement(s) to exercise your assumed MessageMedia Option(s) to the extent vested and outstanding at the time, after which time your MessageMedia Option(s) will expire and NOT be exercisable for DoubleClick common stock. EFFECTIVE DATE: January 18, 2002 To exercise your MessageMedia Option(s), you must deliver to DoubleClick (i) a written notice of exercise for the number of shares of DoubleClick common stock you want to purchase, (ii) the adjusted exercise price, and (iii) all applicable taxes. The exercise notice and payment should be delivered to DoubleClick at the following address: DoubleClick Inc. Attention: Stock Administration 450 West 33rd Street, 16th Floor New York, NY 10001 Nothing in this Agreement or your Option Agreement(s) interferes in any way with your rights and DoubleClick's rights, which rights are expressly reserved, to terminate your employment at any time for any reason. Any future options, if any, you may receive from DoubleClick will be governed by the terms of the DoubleClick stock option plan(s), and such terms may be different from the terms of your assumed MessageMedia Option(s), including, but not limited to, the time period in which you have to exercise vested options after your termination of employment. Please sign and date this Agreement and return it promptly to the address listed above. Until your fully executed Agreement is received by DoubleClick your DoubleClick account will not be activated. If you have any questions regarding this Agreement or your assumed MessageMedia Options, please contact Jenifer Gornstein at 212-381-5723. DOUBLECLICK INC. By: ------------------------------------------------- Elizabeth Wang Corporate Secretary ACKNOWLEDGMENT The undersigned acknowledges receipt of the foregoing Stock Option Assumption Agreement and understands that all rights and liabilities with respect to each of his or her MessageMedia Options hereby assumed by DoubleClick are as set forth in the Option Agreement, the Plan and such Stock Option Assumption Agreement. DATED: , 2002 ------------------------- --------------------------------------- FNAME LNAME, Optionee EX-99 17 ex99-12.txt EXHIBIT 99.12 EXHIBIT 99.12 EFFECTIVE DATE: January 18, 2002 DOUBLECLICK INC. STOCK OPTION ASSUMPTION AGREEMENT Dear FNAME LNAME: As you know, on January 18, 2002 (the "Closing Date") DoubleClick Inc. ("DoubleClick") acquired MessageMedia, Inc. ("MessageMedia") (the "Acquisition"). On the Closing Date you held one or more outstanding options to purchase MessageMedia common stock (the "MessageMedia Options"), which options you held pursuant to one or more initial grants by MessageMedia or one or more options granted by another entity pursuant to an acquisition or other similar transaction (an "Other Transaction") and subsequently assumed by MessageMedia. Your options are documented with one or more Stock Option Agreement(s), modified to the extent applicable by the terms of the Other Transaction with respect to the number of securities and exercise price for such option (each, an "Option Agreement" and collectively, the "Option Agreements"). In accordance with the Acquisition, on the Closing Date, DoubleClick assumed all obligations of MessageMedia under the MessageMedia Options. As such, each outstanding MessageMedia Option has been converted into an option to purchase 0.014536 of a share of DoubleClick common stock (the "Exchange Ratio"), with the exercise price adjusted accordingly. This Agreement evidences the assumption of your MessageMedia Options, including the necessary adjustments to your MessageMedia Options required by the Acquisition. Your MessageMedia Options immediately before and after the Acquisition are as follows:
MESSAGEMEDIA STOCK OPTIONS DOUBLECLICK ASSUMED OPTIONS # of Shares of MessageMedia # of Shares of DoubleClick MessageMedia Exercise Price DoubleClick Exercise Price Common Stock Per Share Common Stock Per Share Old_Share $ OLD_ New_Share $ NEW_
The post-Acquisition adjustments are based on the Exchange Ratio and are intended to: (i) assure that the total spread of each assumed MessageMedia Option (i.e. the difference between the aggregate fair market value and the aggregate exercise price) does not exceed the total spread that existed immediately prior to the Acquisition; (ii) to preserve, on a per share basis, the ratio of exercise price to fair market value that existed immediately prior to the Acquisition; and (iii) to the extent applicable and allowable by law, to retain incentive stock option status under the Federal tax laws. Unless the context otherwise requires, any references in the Option Agreements (i) to the "Company" or the "Corporation" means DoubleClick, (ii) to "Common Stock" or "Stock" means shares of DoubleClick common stock, (iii) to the "Board of Directors" or the "Board" means the Board of Directors of DoubleClick and (iv) to the "Committee" means the Compensation Committee of the DoubleClick Board of Directors. All references in the Option Agreements relating to your status as an employee of MessageMedia or any other entity will now refer to your status as an employee of DoubleClick or any other present or future DoubleClick subsidiary. To the extent any Option Agreement allowed you to deliver MessageMedia common stock as payment for the exercise price, shares of DoubleClick common stock may be delivered in payment of the adjusted exercise price, and the period for which such shares of common stock were held prior to the Acquisition will be taken into account. The grant date, vesting commencement date, vesting schedule and the expiration date of your assumed MessageMedia Options remain the same as set forth in your Option Agreement(s), but the number of shares subject to each vesting installment has been adjusted to reflect the Exchange Ratio. All other provisions which govern either the exercise or the termination of the assumed MessageMedia Option(s) remain the same as set forth in your Option Agreement(s), and the provisions of the Option Agreement(s) (except as expressly modified by this Agreement and the Acquisition) will govern and control your rights under this Agreement to purchase shares of DoubleClick common stock. Upon your termination of employment with DoubleClick or its subsidiaries, as applicable, you will have the limited time period specified in your Option Agreement(s) to exercise your assumed MessageMedia Option(s) to the extent vested and outstanding at the time, after which time your MessageMedia Option(s) will expire and NOT be exercisable for DoubleClick common stock. EFFECTIVE DATE: January 18, 2002 To exercise your MessageMedia Option(s), you must deliver to DoubleClick (i) a written notice of exercise for the number of shares of DoubleClick common stock you want to purchase, (ii) the adjusted exercise price, and (iii) all applicable taxes. The exercise notice and payment should be delivered to DoubleClick at the following address: DoubleClick Inc. Attention: Stock Administration 450 West 33rd Street, 16th Floor New York, NY 10001 Nothing in this Agreement or your Option Agreement(s) interferes in any way with your rights and DoubleClick's rights, which rights are expressly reserved, to terminate your employment at any time for any reason. Any future options, if any, you may receive from DoubleClick will be governed by the terms of the DoubleClick stock option plan(s), and such terms may be different from the terms of your assumed MessageMedia Option(s), including, but not limited to, the time period in which you have to exercise vested options after your termination of employment. Please sign and date this Agreement and return it promptly to the address listed above. Until your fully executed Agreement is received by DoubleClick your DoubleClick account will not be activated. If you have any questions regarding this Agreement or your assumed MessageMedia Options, please contact Jenifer Gornstein at 212-381-5723. DOUBLECLICK INC. By: ------------------------------------ Elizabeth Wang Corporate Secretary ACKNOWLEDGMENT The undersigned acknowledges receipt of the foregoing Stock Option Assumption Agreement and understands that all rights and liabilities with respect to each of his or her MessageMedia Options hereby assumed by DoubleClick are as set forth in the Option Agreement and such Stock Option Assumption Agreement. DATED: , 2002 -------------- ------------------------------------- FNAME LNAME, Optionee -----END PRIVACY-ENHANCED MESSAGE-----