EXHIBIT 4.1
THE OPTION GRANTED PURSUANT TO THIS AGREEMENT AND THE SHARES ISSUABLE UPON THE
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT OR AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT is made and entered into as of April 13, 2001,
by and between NetCurrents, Inc. and Millennium Consulting Group.
SECTION 1: GRANT OF OPTION
1.1 Option. On the terms and conditions set forth in the Notice of Stock
Option Grant and this Agreement, the Company grants to the Optionee the option
to purchase at the Exercise Price the number of Shares set forth in the Notice
of Stock Option Grant.
1.2 Defined Terms. Capitalized terms are defined at the end or within the
text of this Agreement.
SECTION 2: RIGHT TO EXERCISE
2.1 Exercisability. Subject to the other conditions set forth in this
Agreement, all or part of this option may be exercised prior to its expiration
at the time or times set forth in the Notice of Stock Option Grant.
SECTION 3: NO TRANSFER OR ASSIGNMENT OF OPTION
Optionee may not assign, sell or transfer the option, in whole or in part.
SECTION 4: EXERCISE PROCEDURES
4.1 Notice of Exercise. The Optionee or the Optionee's representative may
exercise this option by delivering a written notice in the form of Exhibit B
attached hereto ("Notice of Exercise") to the Company in the manner specified
pursuant to Section 10.4 hereof. Such notice shall specify the election to
exercise this option, the number of Shares for which it is being exercised and
the form of payment, which must comply with Section 5. The notice shall be
signed by the person who is entitled to exercise this option on behalf of the
Optionee.
4.2 Issuance of Shares. After receiving a proper notice of exercise, the
Company shall cause to be issued a certificate or certificates for the Shares as
to which this option has been exercised, registered in the Optionee. The Company
shall cause such certificate or certificates to be deposited in escrow or
delivered to or upon the order of the Optionee.
4.3 Withholding Taxes. In the event that the Company determines that it
is required to withhold any tax as a result of the exercise of this option, the
Optionee, as a condition to the exercise of this option, shall make arrangements
satisfactory to the Company to enable it to satisfy all withholding
requirements. The Optionee shall also make arrangements satisfactory to the
Company to enable it to satisfy any withholding requirements that may arise in
connection with the vesting or disposition of Shares purchased by exercising
this option.
SECTION 5: PAYMENT FOR STOCK
5.1 General Rule. The entire Exercise Price of Shares shall be payable in
full by cash or check for an amount equal to the aggregate Exercise Price for
the number of shares being purchased. Alternatively, in the sole discretion of
the Company and upon such terms as the Company shall approve, the Exercise Price
may be paid by:
5.1.1 Cashless Exercise. A copy of instructions to a broker
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directing such broker to sell the Shares for which this option is exercised, and
to remit to the Company the aggregate Exercise Price of such option;
5.1.2 Stock-For-Stock Exercise. Paying all or a portion of the
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Exercise Price for the number of Shares being purchased by tendering Shares
owned by the Optionee, duly endorsed for transfer to the Company, with a Fair
Market Value on the date of delivery equal to the aggregate Purchase Price of
the shares with respect to which this option or portion hereof is exercised; or
5.1.3 Attestation Exercise. By a stock for stock exercise by means of
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attestation whereby the Optionee identifies for delivery specific Shares already
owned by Optionee and receives a number of Shares equal to the difference
between the Option Shares thereby exercised and the identified attestation
Shares.
5.2 Withholding Payment. The Exercise Price shall include payment of the
amount of all federal, state, local or other income, excise or employment taxes
subject to withholding (if any) by the Company or any Parent or Subsidiary
corporation as a result of the exercise of a Stock Option. The Optionee may pay
all or a portion of the tax withholding by cash or check payable to the Company,
or, at the discretion of the Company, upon such terms as the Company shall
approve, by (i) cashless exercise or attestation exercise; (ii) Stock-for-Stock
exercise; (iii) in the case of an Option, by paying all or a portion of the tax
withholding for the number of shares being purchased by withholding shares from
any transfer or payment to the Optionee ("Stock withholding"); or (iv) a
combination of one or more of the foregoing payment methods. The Fair Market
Value of the number of shares subject to Stock withholding shall not exceed an
amount equal to the applicable minimum required tax withholding rates.
5.3 Exercise/Pledge. In the discretion of the Company, upon such terms as
the Company shall approve, payment may be made all or in part by the delivery
(on a form prescribed by the Company) of an irrevocable direction to pledge
Shares to a securities broker or lender approved by the Company, as security for
a loan, and to deliver all or part of the loan proceeds to the Company in
payment of all or part of the Exercise Price and any withholding taxes.
SECTION 6: TERM AND EXPIRATION
This option shall expire and shall not be exercisable after the expiration
of the Expiration Date specified in the Notice of Stock Option Grant.
SECTION 7: LEGALITY OF INITIAL ISSUANCE
No Shares shall be issued upon the exercise of this option unless and until
the Company has determined that:
7.1 It and the Optionee have taken any actions required to register the
Shares under the Securities Act or to perfect an exemption from the registration
requirements thereof;
7.2 Any applicable listing requirement of any stock exchange on which
Stock is listed has been satisfied; and
7.3 Any other applicable provision of state or federal law has been
satisfied.
SECTION 8: NO REGISTRATION RIGHTS
The Company may, but shall not be obligated to, register or qualify the
sale of Shares under the Securities Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the sale of Shares under this Agreement to comply with any law.
SECTION 9: RESTRICTIONS ON TRANSFER
9.1 Securities Law Restrictions. Regardless of whether the offering and
sale of Shares have been registered under the Securities Act or have been
registered or qualified under the securities laws of any state, the Company at
its discretion may impose restrictions upon the sale, pledge or other transfer
of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act, the securities laws of any state
or any other law.
9.2 Market Stand-Off. In the event of an underwritten public offering by
the Company of its equity securities pursuant to an effective registration
statement filed under the Act, including the Company's initial public offering
(a "Public Offering"), the Optionee shall not Transfer for value any shares of
Stock without the prior written consent of the Company or its underwriters, for
such period of time from and after the effective date of such registration
statement as may be requested by the Company or such underwriters (the "Market
Stand-Off"). The Market Stand-Off shall terminate following the expiration of
the two-year period immediately following the effective date of the Company's
initial public offering. Such restriction (the "Market Stand-Off") shall be in
effect for such period of time following the date of the final prospectus for
the offering as may be requested by the Company or such underwriters. In the
event of the declaration of a stock dividend, a spin-off, a stock split, an
adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company's outstanding securities without receipt of consideration,
any new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Shares subject to the Market Stand-
Off, or into which such Shares thereby become convertible, shall immediately be
subject to the Market Stand-Off. In order to enforce the Market Stand-Off, the
Company may impose stop-transfer instructions with respect to the Shares
acquired under this Agreement until the end of the applicable stand-off period.
9.3 Investment Intent at Grant. The Optionee represents and agrees that
the Shares to be acquired upon exercising this option will be acquired for
investment, and not with a view to the sale or distribution thereof.
9.4 Investment Intent at Exercise. In the event that the sale of Shares
are not registered under the Securities Act but an exemption is available which
requires an investment representation or other representation, the Optionee
shall represent and agree at the time of exercise that the Shares being acquired
upon exercising this option are being acquired for investment, and not with a
view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel.
9.5 Legends. All certificates evidencing Shares purchased under this
Agreement in an unregistered transaction shall bear the following legend (and
such other restrictive legends as are required or deemed advisable under the
provisions of any applicable law):
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH
ACT OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL,
THAT SUCH REGISTRATION IS NOT REQUIRED."
9.6 Removal of Legends. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing Shares sold under
this Agreement no longer is required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate representing the same
number of Shares but without such legend.
9.7 Administration. Any determination by the Company and its counsel in
connection with any of the matters set forth in this Section 9 shall be
conclusive and binding on the Optionee and all other persons.
SECTION 10: MISCELLANEOUS PROVISIONS
10.1 Rights as a Shareholder. Neither the Optionee nor the Optionee's
representative shall have any rights as a shareholder with respect to any Shares
subject to this option until the Optionee or the Optionee's representative
becomes entitled to receive such Shares by filing a notice of exercise and
paying the Purchase Price pursuant to Section 4 and Section 5 hereof.
10.2 Adjustments. If there is any change in the number of outstanding
shares of Stock by reason of a stock split, reverse stock split, stock dividend,
recapitalization, combination or reclassification, then (i) the number of shares
subject to this option and (ii) the Exercise Price of this option, in effect
prior to such change, shall be proportionately adjusted to reflect any increase
or decrease in the number of issued shares of Stock; provided, however, that any
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fractional shares resulting from the adjustment shall be eliminated.
10.3 No Retention Rights. Nothing in this option shall confer upon the
Optionee any right to continue in Service for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company (or
any Parent or Subsidiary employing or retaining the Optionee) or of the
Optionee, which rights are hereby expressly reserved by each, to terminate his
or her Service at any time and for any reason, with or without Cause.
10.4 Notice. Any notice required by the terms of this Agreement shall be
given in writing and shall be deemed effective upon personal delivery or upon
deposit with the United States Postal Service, by registered or certified mail,
with postage and fees prepaid. Notice shall be addressed to the Company at its
principal executive office and to the Optionee at the address that he or she
most recently provided to the Company.
10.5 Entire Agreement. The Notice of Stock Option Grant and this
Agreement constitute the entire contract between the parties hereto with regard
to the subject matter hereof. They supersede any other agreements,
representations or understandings (whether oral or written and whether express
or implied) that relate to the subject matter hereof.
10.6 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA, AS SUCH LAWS ARE
APPLIED TO CONTRACTS ENTERED INTO AND PERFORMED IN SUCH STATE.
SECTION 11: DEFINITIONS
11.1 "Agreement" shall mean this Stock Option Agreement.
11.2 "Board of Directors" shall mean the Board of Directors of the
Company, as constituted from time to time or, if a Committee has been appointed,
such Committee.
11.3 "Code" shall mean the Internal Revenue Code of 1986, as amended.
11.4 "Company" shall mean NetCurrents, Inc., a Delaware corporation.
11.5 "Date of Grant" shall mean the date specified in the Notice of Stock
Option Grant.
11.6 "Exercise Price" shall mean the amount for which one Share may be
purchased from the Company upon exercise of this option, as specified in the
Notice of Stock Option Grant.
11.7 "Fair Market Value" shall mean the fair market value of a Share, as
determined by the Board of Directors in good faith. Such determination shall be
conclusive and binding on all persons.
11.8 "Non-Qualified Stock Option" shall mean a stock option not described
in Sections 422(b) or 423(b) of the Code.
11.9 "Notice of Stock Option Grant" shall mean the document so entitled,
to which this Agreement is attached hereto as Exhibit A.
11.10 "Optionee" shall mean the entity specified in the Notice of Stock
Option Grant.
11.11 "Parent" shall mean any corporation (other than the Company) in an
unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
11.12 "Purchase Price" shall mean the Exercise Price multiplied by the
number of Shares with respect to which this option is being exercised.
11.13 "Securities Act" shall mean the Securities Act of 1933, as amended.
11.14 "Service" shall mean service to the Company as an employee or
consultant.
11.15 "Share" shall mean one share of Stock, as adjusted in accordance
with Section 10.2.
11.16 "Stock" shall mean the Common Stock ($.001 par value).
11.17 "Subsidiary" shall mean any corporation (other than the Company) in
an unbroken chain of corporations beginning with the Company, if each of the
corporations other than the last corporation in the unbroken chain owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first set forth above.
Optionee: Millennium Consulting Group NetCurrents, Inc.
By: /s/ DOUG FURTH By: /s/ IRWIN MEYER
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Its: President Its: President & CEO
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EXHIBIT A
NOTICE OF STOCK OPTION GRANT
Name of Optionee: Millennium Consulting Group
Total Number of Shares Granted: 2,000,000 shares of Common Stock ($0.001
par value) of NetCurrents, Inc.
Type of Option: Non-Qualified Stock Option
Exercise Price Per Share: $0.08
Date of Grant: April 13, 2001
Vesting Schedule: 100% of the Shares underlying the option
shall vest and become exercisable on April
13, 2001
Expiration Date: April 12, 2002
EXHIBIT B
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
NetCurrents, Inc.
9720 Wilshire Boulevard, Ste. 700
Beverly Hills, CA 90212
The undersigned, the holder of the enclosed Stock Option Agreement, hereby
irrevocably elects to exercise the purchase rights represented by the Option and
to purchase thereunder ______* shares of Common Stock ($.001 par value) of
NetCurrents, Inc. (the "Company"), and herewith encloses payment of $_______
and/or _________ shares of the Company's common stock in full payment of the
purchase price of such shares being purchased.
Dated:_________________
YOUR STOCK MAY BE SUBJECT TO RESTRICTIONS AND FORFEITABLE UNDER THE NOTICE OF
STOCK OPTION GRANT AND STOCK OPTION AGREEMENT
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(Signature must conform in all
respects to name of holder as
specified on the face of the Option)
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(Please Print Name)
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(Address)
* Insert here the number of shares called for on the face of the Option,
or, in the case of a partial exercise, the number of shares being exercised, in
either case without making any adjustment for additional Common Stock ($.001 par
value) of the Company, other securities or property that, pursuant to the
adjustment provisions of the Option, may be deliverable upon exercise.