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 Xxxxx Xxxxxxxxx
("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
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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.
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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
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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/ Xxxxxx Xxxxxxxx
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ATTEST: Its: CEO
-----------------------
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Its
--------------------- (Corporation)
/s/ Xxxxx Xxxxxxxxx (SEAL)
WITNESS: ------------------------------
Xxxxx Xxxxxxxxx
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(Optionee)
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