Exhibit 4.0
WARPRADIO.COM, INC.
1999 STOCK OPTION PLAN
Article I. Establishment and Purpose
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1.1 Establishment. WarpRadio.com, Inc., a Nevada corporation (the
"Company"), hereby establishes a stock option plan for officers, directors,
employees and consultants who provide services to the Company, as described
herein, which shall be known as the WarpRadio.com, Inc. 1999 Stock Option Plan
(the "Plan"). It is intended that options issued under the Plan shall constitute
"Nonstatutory Options" within the meaning of section 422A of the Internal
Revenue Code ("Code").
1.2 Purpose. The purpose of the Plan is to enhance the Company's
stockholder value and financial performance by attracting, retaining and
motivating the Company's officers, directors, employees and consultants and to
encourage stock ownership by such individuals by providing them with a means to
acquire a proprietary interest in the Company's success through stock ownership.
Article II. Definitions
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2.1 Definitions. Whenever used herein, the following capitalized terms
shall have the meanings set forth below, unless the context clearly requires
otherwise.
(a) "Board" means the Board of Directors of the Company.
(b) "Code" means the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Committee provided for by Article IV
hereof.
(d) "Company" means WarpRadio.com, Inc., a Nevada corporation.
(e) "Consultant" means any person or entity, including an officer or
director of the Company who provides services to the Company and shall
include a Nonemployee Director, as defined below.
(f) "Date of Exercise" means the date the Company receives notice, by an
Optionee, of the exercise of an Option pursuant to section 8.1 of the
Plan. Such notice shall indicate the number of shares of Stock the
Optionee intends to exercise.
(g) "Employee" means any person, including an officer or director of the
Company who is employed by the Company.
(h) "Fair Market Value" means the fair market value of Stock upon which an
Option is granted under this Plan.
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(i) "Nonemployee Director" means a member of the Board who is not an
employee of the Company at the time an Option is granted hereunder.
(j) "Nonstatutory Option" means an Option granted under the Plan which is
not intended to qualify as an Incentive Stock Option within the
meaning of section 422A of the Code. Nonstatutory Options may be
granted at such times and subject to such restrictions as the Board
shall determine without conforming to the statutory rules of section
422A of the Code applicable to Incentive Stock Options.
(k) "Option" means the right, granted under the Plan, to purchase Stock of
the Company at the option price for a specified period of time.
(l) "Optionee" means an officer, director, employee or consultant holding
an Option under the Plan.
(m) "Parent Corporation" shall have the meaning set forth in section
425(e) of the Code with the Company being treated as the employer
corporation for purposes of this definition.
(n) "Significant Shareholder" means an individual who, within the meaning
of section 422A(b)(6) of the Code, owns securities possessing more
than ten percent of the total combined voting power of all classes of
securities of the Company. In determining whether an individual is a
Significant Shareholder, an individual shall be treated as owning
securities owned by certain relatives of the individual and certain
securities owned by corporations in which the individual is a
shareholder; partnerships in which the individual is a partner; and
estates or trusts of which the individual is a beneficiary, all as
provided in section 425(d) of the Code.
(o) "Stock" means the $.001 par value common stock of the Company.
2.2 Gender and Number. Except when otherwise indicated by the context, any
masculine terminology when used in this Plan also shall include the feminine
gender, and the definition of any term herein in the singular also shall include
the plural.
Article III. Eligibility and Participation
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3.1 Eligibility and Participation. All officers, directors, employees and
consultants are eligible to participate in this Plan and receive Nonstatutory
Options hereunder. Optionees in the Plan shall be selected by the Board from
among those officers, directors, employees and consultants who, in the opinion
of the Board, are in a position to contribute materially to the Company's
continued growth and development and to its long-term financial success.
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Article IV. Administration
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4.1 Administration. The Board shall be responsible for administering the
Plan.
The Board is authorized to interpret the Plan; to prescribe, amend, and
rescind rules and regulations relating to the Plan; to provide for conditions
and assurances deemed necessary or advisable to protect the interests of the
Company; and to make all other determinations necessary or advisable for the
administration of the Plan, but only to the extent not contrary to the express
provisions of the Plan. Determinations, interpretations or other actions made or
taken by the Board, pursuant to the provisions of this Plan, shall be final and
binding and conclusive for all purposes and upon all persons.
The Plan shall be administered by the Board of Directors, acting as a
compensation committee. The Committee shall have full power and authority,
subject to the limitations of the Plan and any limitations imposed by the Board,
to construe, interpret and administer the Plan and to make determinations which
shall be final, conclusive and binding upon all persons, including, without
limitation, the Company, the stockholders, the directors and any persons having
any interests in any Options which may be granted under the Plan, and, by
resolution or resolution providing for the creation and issuance of any such
Option, to fix the terms upon which, the time or times at or within which, and
the price or prices at which any Stock may be purchased from the Company upon
the exercise of Options, which terms, time or times and price or prices shall,
in every case, be set forth or incorporated by reference in the instrument or
instruments evidencing such Option, and shall be consistent with the provisions
of the Plan.
The Committee shall select one of its members as Chairman, and shall hold
meetings at such times and places as the Chairman may determine. A majority of
the Committee at which a quorum is present, or acts reduced to or approved in
writing by all of the members of the Committee, shall be the valid acts of the
Committee. A quorum shall consist of a majority of the members of the Committee.
Where the Committee has been created by the Board, references herein to
actions to be taken by the Board shall be deemed to refer to the Committee as
well, except where limited by the Plan or the Board.
The Board shall have all of the enumerated powers of the Committee but
shall not be limited to such powers. No member of the Board or the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any Option granted under it.
4.2 Special Provisions for Grants to Officers or Directors. Rule 16b-3 of
the Securities and Exchange Act of 1934 (the "Act") provides that the grant of a
stock option to a director or officer of a company subject to the Act will be
exempt from the provisions of section 16(b) of the Act if the conditions set
forth in said Rule are satisfied. Unless otherwise specified by the Board,
grants of Options hereunder to individuals who are officers or directors of the
Company shall be made in a manner that satisfies the conditions of said Rule.
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Article V. Stock Subject to the Plan
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5.1 Number. The total number of shares of Stock hereby made available and
reserved for issuance under the Plan shall be 3,500,000. The aggregate number of
shares of Stock available under this Plan shall be subject to adjustment as
provided in section 5.3. The total number of shares of Stock may be authorized
but unissued shares of Stock, or shares acquired by purchase as directed by the
Board from time to time in its discretion, to be used for issuance upon exercise
of Options granted hereunder.
5.2 Unused Stock. If an Option shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares of Stock subject
thereto shall (unless the Plan shall have terminated) become available for other
Options under the Plan.
5.3 Adjustment in Capitalization. In the event of any change in the
outstanding shares of Stock by reason of a stock dividend or split,
recapitalization, reclassification or other similar corporate change, the
aggregate number of shares of Stock set forth in section 5.1 shall be
appropriately adjusted by the Board to reflect such change. The Board's
determination shall be conclusive; provided, however, that fractional shares
shall be rounded to the nearest whole share. In any such case, the number and
kind of shares of Stock that are subject to any Option (including any Option
outstanding after termination of employment) and the Option price per share
shall be proportionately and appropriately adjusted without any change in the
aggregate Option price to be paid therefor upon exercise of the Option.
Article VI. Duration of the Plan
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6.1 Duration of the Plan. The Plan shall be in effect until December 31,
2009 unless extended by the Company's shareholders. Any Options outstanding at
the end of said period shall remain in effect in accordance with their terms.
The Plan shall terminate before the end of said period, if all Stock subject to
it has been purchased pursuant to the exercise of Options granted under the
Plan.
Article VII. Terms of Stock Options
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7.1 Grant of Options. Subject to section 5.1, Options may be granted to
officers, directors, employees and consultants at any time and from time to time
as determined by the Board. The Board shall have complete discretion in
determining the number of Options granted to each Optionee. In making such
determinations, the Board may take into account the nature of services rendered
by such officers, directors, employees or consultants, their present and
potential contributions to the Company, and such other factors as the Board in
its discretion shall deem relevant.
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The Board is expressly authorized to issue amended or replacement Options
with respect to shares of Stock subject to an Option previously granted
hereunder. An amended Option amends the terms of an Option previously granted
(including an extension of the terms of such Option) and thereby supersedes the
previous Option. A replacement Option is similar to a new Option granted
hereunder except that it provides that it shall be forfeited to the extent that
a previously granted Option is exercised, or except that its issuance is
conditioned upon the termination of a previously granted Option.
7.2 No Tandem Options. Options shall not contain terms pursuant to which
the exercise of the Option would affect the Optionee's right to exercise another
Option, or vice versa.
7.3 Option Agreement; Terms and Conditions to Apply Unless Otherwise
Specified. As determined by the Board on the date of grant, each Option shall be
evidenced by an Option agreement (the "Option Agreement") that includes the
nontransferability provisions required by section 10.2 hereof and specifies: the
Option price; the term (duration) of the Option; the number of shares of Stock
to which the Option applies; any vesting or exercisability restrictions which
the Board may impose; and any other terms or conditions which the Board may
impose. All such terms and conditions shall be determined by the Board at the
time of grant of the Option.
If not otherwise specified by the Board or by a written agreement between
the Company and the Optionee, the following terms and conditions shall apply to
Options granted under the Plan:
(a) Term. The Option shall be exercisable to purchase Stock for a period
of ten years from the date of grant, as evidenced by the execution
date of the Option Agreement.
(b) Exercise of Option. Unless an Option is terminated as provided
hereunder, an Optionee may exercise his Option for up to, but not in
excess of, the number of shares of Stock subject to the Option
specified below, based on the Optionee's number of years of continuous
service with the Company from the date on which the Option is granted.
In the case of an Optionee who is an officer or employee, continuous
service shall mean continuous employment; in the case of an Optionee
who is a director or consultant, continuous service shall mean the
continuous provision of directorial or consulting services. In
applying said limitations, the amount of shares, if any, previously
purchased by the Optionee under the Option shall be counted in
determining the amount of shares the Optionee can purchase at any
time. The Optionee may exercise his Option in the following amounts:
(i) After one (1) year of continuous services to the Company, the
Optionee may purchase up to 50% of the shares of Stock subject to
the Option;
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(ii) After two (2) years of continuous services to the Company, the
Optionee may purchase the remaining 50% of the shares of Stock
subject to the Option.
The Board may specify terms and conditions other than those set forth
above, in its discretion.
All Option Agreements shall incorporate the provisions of the Plan by
reference.
7.4 Option Price. Options granted pursuant to this Plan may have an Option
price that is less than the Fair Market Value of the Stock on the date the
Option is granted.
7.5 Term of Options. Each Option shall expire at such time as the Board
shall determine, provided, however, that no Option shall be exercisable later
than ten years from the date of its grant.
7.6 Exercise of Options. Options granted under the Plan shall be
exercisable at such times and be subject to such restrictions and conditions as
the Board shall in each instance approve, which need not be the same for all
Optionees.
7.7 Payment. Payment for all shares of Stock shall be made at the time that
an Option, or any part thereof, is exercised, and no shares shall be issued
until full payment therefor has been made. Payment shall be made (i) in cash or
certified funds, or (ii) if acceptable to the Board, in Stock or in some other
form of payment.
Article VIII. Written Notice, Issuance of
Stock Certificates, Stockholder Privileges
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8.1 Written Notice. An Optionee wishing to exercise an Option shall give
written notice to the Company, in the form and manner prescribed by the Board.
Full payment for the shares exercised pursuant to the Option must accompany the
written notice.
8.2 Issuance of Stock Certificates. As soon as practicable after the
receipt of written notice and payment, the Company shall deliver to the Optionee
or to a nominee of the Optionee a certificate or certificates for the requisite
number of shares of Stock.
8.3 Privileges of a Stockholder. An Optionee or any other person entitled
to exercise an Option under this Plan shall not have stockholder privileges with
respect to any Stock covered by the Option until the date of issuance of a stock
certificate for such stock.
Article IX. Termination of Employment or Services
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Except as otherwise expressly specified by the Board for Nonstatutory
Options, all Options granted under this Plan shall be subject to the following
termination provisions:
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9.1 Death. If an Optionee's employment in the case of an Officer, or
provision of services as a Director or Consultant, terminates by reason of
death, the Option may thereafter be exercised at any time prior to the
expiration date of the Option or within 12 months after the date of such death,
whichever period is the shorter, by the person or persons entitled to do so
under the Optionee's will or, if the Optionee shall fail to make a testamentary
disposition of an Option or shall die intestate, the Optionee's legal
representative or representatives. The Option shall be exercisable only to the
extent that such Option was exercisable as of the date of Optionee's death.
9.2 Termination Other Than For Cause or Due to Death. In the event of an
Optionee's termination of employment, in the case of an officer or employee, or
termination of services as a director or consultant, other than by reason of
death, the Optionee may exercise such portion of his Option as was exercisable
by him at the date of such termination (the "Termination Date") at any time
within three (3) months of the Termination Date; provided, however, that where
the Optionee is terminated due to disability within the meaning of Code section
422A, he may exercise such portion of his Option as was exercisable by him on
his Termination Date within one year of his Termination Date. In any event, the
Option cannot be exercised after the expiration of the term of the Option.
Options not exercised within the applicable period specified above shall
terminate.
In the case of an officer, a change of duties or position within the
Company, shall not be considered a termination of employment for purposes of
this Plan. The Option Agreements may contain such provisions as the Board shall
approve with reference to the effect of approved leaves of absence upon
termination of employment.
9.3 Termination for Cause. In the event of an Optionee's termination of
employment, in the case of an officer or employee or termination of services as
a director or consultant, which termination is by the Company for cause, any
Options held by him under the Plan, to the extent not exercised before such
termination, shall forthwith terminate.
Article X. Rights of Optionees
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10.1 Service. Nothing in this Plan shall interfere with or limit in any way
the right of the Company to terminate any employee's employment, or any
consultant's services, at any time, nor confer upon any officer, director,
employee or consultant any right to continue in the employ of the Company or to
provide services to the Company.
10.2 Nontransferability. Options granted under this Plan shall be
nontransferable by the Optionee, other than by will or the laws of descent and
distribution, and shall be exercisable during the Optionee's lifetime only by
the Optionee.
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Article XI. Optionee-Officer's
Transfer or Leave of Absence
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11.1 Optionee's Transfer or Leave of Absence. For Plan purposes a transfer
or leave of absence by an Optionee who is an officer or employee shall not be
deemed a termination of employment. However, an Optionee may not exercise an
Option during any leave of absence, unless authorized by the Board.
Article XII. Amendment, Modification
and Termination of the Plan
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12.1 Amendment, Modification, and Termination of the Plan. The Board may at
any time terminate, and from time to time may amend or modify the Plan. No
amendment, modification or termination of the Plan shall in any manner adversely
affect any outstanding Option under the Plan without the consent of the Optionee
holding the Option.
Article XIII. Acquisition, Merger and Liquidation
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13.1 Acquisition. In the event that an Acquisition occurs with respect to
the Company, the Company shall have the option, but not the obligation, to
cancel Options outstanding as of the effective date of Acquisition, whether or
not such Options are then exercisable, in return for payment to the Optionees of
an amount equal to a reasonable estimate of an amount (hereinafter the "Spread")
equal to the difference between the net amount per share of Stock payable in the
Acquisition, or as a result of the Acquisition, less the exercise price of the
Option. In estimating the Spread, appropriate adjustments to give effect to the
existence of the Options shall be made, such as deeming the Options to have been
exercised, with the Company receiving the exercise price payable thereunder, and
treating the shares receivable upon exercise of the Options as being outstanding
in determining the net amount per share. For purposes of this section, an
"Acquisition" shall mean any transaction in which substantially all of the
Company's assets are acquired or in which a controlling amount of the Company's
outstanding shares are acquired, in each case by a single person or entity or an
affiliated group of persons and/or entities. For purposes of this section a
controlling amount shall mean more than 50% of the issued and outstanding shares
of stock of the Company. The Company shall have such an option regardless of how
the Acquisition is effectuated, whether by direct purchase, through a merger or
similar corporate transaction, or otherwise. In cases where the acquisition
consists of the acquisition of assets of the Company, the net amount per share
shall be calculated on the basis of the net amount receivable with respect to
shares upon a distribution and liquidation by the Company after giving effect to
expenses and charges, including but not limited to taxes, payable by the Company
before the liquidation can be completed.
Where the Company does not exercise its option under this section 13.1, the
remaining provisions of this Article XIII shall apply, to the extent applicable.
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13.2 Merger or Consolidation. Subject to any required action by the
stockholders, if the Company shall be the surviving corporation in any merger or
consolidation, any Option granted hereunder shall pertain to and apply to the
securities to which a holder of the number of shares of Stock subject to the
Option would have been entitled in such merger or consolidation.
13.3 Other Transactions. A dissolution or a liquidation of the Company or a
merger and consolidation in which the Company is not the surviving corporation
shall cause every Option outstanding hereunder to terminate as of the effective
date of such dissolution, liquidation, merger or consolidation. However, the
Optionee either (i) shall be offered a firm commitment whereby the resulting or
surviving corporation in a merger or consolidation will tender to the Optionee
an option (the "Substitute Option") to purchase its shares on terms and
conditions both as to number of shares and otherwise, which will substantially
preserve to the Optionee the rights and benefits of the Option outstanding
hereunder granted by the Company, or (ii) shall have the right immediately prior
to such dissolution, liquidation, merger, or consolidation to exercise any
unexercised Options whether or not then exercisable, subject to the provisions
of this Plan. The Board shall have absolute and uncontrolled discretion to
determine whether the Optionee has been offered a firm commitment and whether
the tendered Substitute Option will substantially preserve to the Optionee the
rights and benefits of the Option outstanding hereunder. In any event, any
Substitute Option for an Incentive Stock Option shall comply with the
requirements of Code section 425(a).
Article XIV. Securities Registration
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14.1 Securities Registration. In the event that the Company shall deem it
necessary or desirable to register under the Securities Act of 1933, as amended,
or any other applicable statute, any Options or any Stock with respect to which
an Option may be or shall have been granted or exercised, or to qualify any such
Options or Stock under the Securities Act of 1933, as amended, or any other
statute, then the Optionee shall cooperate with the Company and take such action
as is necessary to permit registration or qualification of such Options or
Stock.
Unless the Company has determined that the following representation is
unnecessary, each person exercising an Option under the Plan may be required by
the Company, as a condition to the issuance of the shares pursuant to exercise
of the Option, to make a representation in writing (a) that the Optionee is
acquiring such shares for his own account for investment and not with a view to,
or for sale in connection with, the distribution of any part thereof, (b) that
before any transfer in connection with the resale of such shares, the Optionee
will obtain the written opinion of counsel for the Company, or other counsel
acceptable to the Company, that such shares may be transferred. The Company may
also require that the certificates representing such shares contain legends
reflecting the foregoing.
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Article XV. Tax Withholding
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15.1 Tax Withholding. Whenever shares of Stock are to be issued in
satisfaction of Options exercised under this Plan, the Company shall have the
power to require the recipient of the Stock to remit to the Company an amount
sufficient to satisfy federal, state and local withholding tax requirements.
Article XVI. Indemnification
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16.1 Indemnification. To the extent permitted by law, each person who is or
shall have been a member of the Board shall be indemnified and held harmless by
the Company against and from any loss, cost, liability, or expense that may be
imposed upon or reasonably incurred by him in connection with or resulting from
any claim, action, suit, or proceeding to which he may be a party or in which he
may be involved by reason of any action taken or failure to act under the Plan
and against and from any and all amounts paid by him in settlement thereof, with
the Company's approval, or paid by him in satisfaction of judgment in any such
action, suit or proceeding against him, provided he shall give the Company an
opportunity, at its own expense, to handle and defend the same before he
undertakes to handle and defend it on his own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification to
which such persons may be entitled under the Company's articles of incorporation
or bylaws, as a matter of law, or otherwise, or any power that the Company may
have to indemnify them or hold them harmless.
Article XVII. Requirements of Law
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17.1 Requirements of Law. The granting of Options and the issuance of
shares of Stock upon the exercise of an Option shall be subject to all
applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be required.
17.2 Governing Law. The Plan and all agreements hereunder shall be
construed in accordance with and governed by the laws of the State of Nevada.
Article XVIII. Effective Date of Plan
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18.1 Effective Date. The Plan shall be effective on December 14, 1999.
Article XIX. No Obligation to Exercise Option
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20.1 No Obligation to Exercise. The granting of an Option shall impose no
obligation upon the holder thereof to exercise such Option.
Dated at Denver, Colorado, December 14, 1999, as amended on August 30, 2000
WARPRADIO.COM, INC.
By________________________________
Denise Sutton, Chief Executive Officer
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WarpRadio.com, Inc.
NOTICE OF EXERCISE OF STOCK OPTION
ISSUED UNDER THE 1999 STOCK OPTION PLAN
To: Compensation Committee
WarpRadio.com, Inc.
6535 South Dayton Street, Suite 3000
Greenwood Village, CO 80111
I hereby exercise my Option dated _____________________________ to purchase
__________ shares of no par value common stock of the Company at the option
exercise price of $__________ per share. Enclosed is a certified or cashier's
check in the total amount of $__________, or payment in such other form as the
Company has specified.
I represent to you that I am acquiring said shares for investment purposes
and not with a view to any distribution thereof. I understand that my stock
certificate may bear an appropriate legend restricting the transfer of my shares
and that a stock transfer order may be placed with the Company's transfer agent
with respect to such shares.
I request that my shares be issued in my name as follows:
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(Print your name in the form in which you wish to have the shares registered)
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(Social Security Number)
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(Street and Number)
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(City) (State) (Zip Code)
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(Date)
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(Signature)
