Exhibit 10.16 GRANT NO. 35
WARP 9, INC.
(FORMERLY ROAMING MESSENGER INC.)
STOCK OPTION PLAN
GRANT NO. 35
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THIS STOCK OPTION AGREEMENT (the "Agreement") is dated as of OCTOBER
16, 2006 by and between Warp 9, Inc., a Nevada corporation (the "Company"), and
XXXXX XXXXXXXXX (the "Optionee") pursuant to the Company's 2003 Stock Option
Plan for Directors, Executive Officers, Employees and Key Consultants (the
"Plan"). For purposes of this Agreement, references to "Company" include its
Parent and Subsidiaries (as those terms are defined in the Plan).
Pursuant to authorization by the Committee of the Plan (the
"Committee") appointed by the Board of Directors of the Company, the parties
agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to the Optionee the right (the "Option") to
purchase all or any portion of TWO MILLION FIVE HUNDRED THOUSAND (2,500,000)
shares (the "Shares") of the unregistered Common Stock of the Company (the
"Common Stock") at a purchase price of $0.01 per share (the "Option Price").
2. TERM OF AGREEMENT.
This Agreement shall terminate upon the earliest of the following
events:
(a) Four (4) years from the date of vesting of the last
Options to vest pursuant to this Agreement, but no longer than ten (10)
years from the date of grant of the Option.
(b) In the case of the termination of the Optionee's position
as an officer and director and employee and consultant of the Company,
as the case may be, which results in a "Severance" as defined in
Section 2(t) of the Plan, this Agreement shall terminate with respect
to all unvested Options on the date of the Severance, and with respect
to vested Options, the earlier of (i) four (4) years from the date of
vesting, but no longer than ten (10) years from the date of grant of
the Option or (ii) one (1) year from the date of Severance if the
Optionee was disabled (within the meaning of Section 22(e)(3) of the
Internal Revenue Code) at the time of his or her Severance, or (iii)
ninety (90) days immediately subsequent to his or her Severance for any
reason.
(c) The Optionee's Severance (whether by reason of death or
otherwise) shall not accelerate the number of Shares with respect to
which an Option may be exercised.
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3. EXERCISABILITY. The Option shall vest and be exercisable
in accordance with the following schedule:
NAME OF GRANTEE DATE OF NUMBER OF VESTING EXERCISE EXPIRATION
GRANT OPTIONS SCHEDULE PRICE (1) DATE
Xxxxx Xxxxxxxxx 10/16/2006 2,500,000 208,333 on $0.01 9/16/2011
10/16/06;
208,333 per month
thereafter, until
9/16/07
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(1) The exercise price is equal to the fair market value on the date of the
issuance of the options. Since the underlying securities are
unregistered common stock and there are no concurrent private offerings
of unregistered common stock to set a comparable value, the Board of
Directors has determined that the fair market value of the underlying
securities are the same as that of the public stock, given the recent
trading volumes of the public stock. Each stock option will confer upon
the holder the right to purchase one share of the Company's
unregistered common stock for a price of $_0.01_ per share at any time
from the vesting date to the expiration date.
4. METHOD OF EXERCISING. This Option may be exercised by the
Optionee upon delivery of the following documents to the Company at its
principal executive offices:
(a) Written notice specifying the number of full Shares to be
purchased;
(b) Payment of the full purchase price therefore in cash, by
check, or in such other form of lawful consideration as the Committee
may approve from time to time;
(c) Such agreements or undertakings that are required by the
Committee pursuant to the Plan; and
(d) Payment of any taxes which may be required.
5. ASSIGNMENTS.
(a) This Option shall be exercisable only by the Optionee
during the Optionee's lifetime.
(b) The rights of the Optionee under this Agreement may not be
assigned or transferred except by will or by the laws of descent and
distribution.
6. NO RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights
as a shareholder of any Shares covered by this Option until the date a
certificate for such Shares has been issued to him or her following the exercise
of the Option.
7. INTERPRETATION OF AGREEMENT.
(a) This Agreement is made under the provisions of the Plan
and shall be interpreted in a manner consistent with it.
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(b) Any provision in this Agreement inconsistent with the Plan
shall be superseded and governed by the Plan. A copy of the Plan is
attached hereto as Exhibit A.
8. LEGENDS ON CERTIFICATES. The Optionee acknowledges that the
certificates representing the Shares issued upon exercise of this Option may
bear such legends and be subject to such restrictions on transfer as the Company
may deem necessary to comply with all applicable state and federal securities
laws and regulations.
9. MARKET STANDOFF. The Optionee, if so requested by the Company
or any representative of the underwriters in connection with any registration of
the offering of any securities of the Company under the Securities Act of 1933,
as amended (the "Act"), shall not sell or otherwise transfer any shares of
Common Stock acquired upon the exercise of the Option granted herein during the
six month period following the effective date of a registration statement of the
Company filed under the Act; provided, however, that such restriction shall only
apply to the first registration statement of the Company to become effective
under the Act after the date of adoption of the Plan which includes securities
to be sold on behalf of the Company to the public in an underwritten public
offering under the Act. The Company may impose stop-transfer instructions with
respect to securities subject to the foregoing restriction until the end of such
six month period.
10. INCENTIVE STOCK OPTION. To the extent permitted under Section
422 of the Internal Revenue Code of 1986, as amended, the stock options granted
under this Agreement shall be designated as Incentive Stock Options, as that
term is defined in the Plan. To the extent any stock options granted under this
Agreement may not be designated as Incentive Stock Options, such stock options
shall be designated as non-qualified stock options.
11. NOTICES. Any notice to be given under the terms of this
Agreement must be addressed to the Company in care of its Secretary at its
principal office, and any notice to be given to Optionee must be addressed to
such Optionee at the address maintained by the Company for such person or at
such other address as the Optionee may specify in writing to the Company.
12. BINDING EFFECT. This Agreement and any amendment hereto, will
be binding upon the parties hereto, their successors, heirs, next of kin,
executors, administrators, personal representatives, legal representatives,
assignees, creditors, including receivers, and all other persons with notice or
knowledge of the provisions hereof.
13. CHOICE OF LAW AND VENUE. This Agreement is made and entered
into in the State of California. It is the intention of the parties that this
Agreement will be subject to and will be governed by and construed in accordance
with the internal laws of the State of California without reference to its
choice of law provisions. Any legal proceeding arising out of this Agreement
will be brought only in a state of federal court of competent jurisdiction
sitting in the County of Santa Xxxxxxx, State of California, and all parties
hereto agree that venue will lie therein and agree to submit themselves to the
personal jurisdiction of such court.
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14. CONSTRUCTION. The captions contained in this Agreement are for
convenience of reference only and are not to be considered in construing this
Agreement. The language of this Agreement will be construed as to its fair
meaning and not strictly for or against any party.
15. SEVERABILITY. The provisions of this Agreement are independent
of and severable from each other, and no provision will be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part. Further, if
a court of competent jurisdiction determines that any provision of this
Agreement is invalid or unenforceable as written, such court may interpret,
construe, rewrite or revise such provision, to the fullest extent allowed by
law, so as to make it valid and enforceable consistent with the intent of the
parties hereto.
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original as against any
party hereto whose signature appears hereon, and all of which will together
constitute one and the same instrument. This Agreement will become binding when
one or more counterparts hereof, individually or taken together, bears the
signatures of all of the parties reflected hereon as the signatories.
17. APPLICATION OF PLAN. The Company has delivered and the
Optionee hereby acknowledges receipt of a copy of the Plan. The parties agree
and acknowledge that the Option granted hereunder is granted pursuant to the
Plan and subject to the terms and provisions thereof, and the rights of the
Optionee are subject to modifications and termination in certain events as
provided in the Plan.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement as of the date first above written.
OPTIONEE: XXXXX XXXXXXXXX WARP 9, INC.
By: By:
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Xxxxx Xxxxxxxxx Xxxxxxxx Xxxxxxx, CEO
