Exhibit
4.01
NITRO PETROLEUM,
INC.
2009 STOCK INCENTIVE
PLAN
1.
Establishment,
Purpose and Types of Awards . Nitro Petroleum, Inc., a Nevada
corporation (the “Corporation”) hereby establishes the
NITRO PETROLEUM, INC. 2009 STOCK INCENTIVE PLAN (the
“Plan”). The purpose of the Plan is to advance the
interests of the Corporation by providing directors, selected
employees and consultants of the Corporation with the opportunity
to acquire shares of Common Stock. By encouraging stock ownership,
the Corporation seeks to attract, retain and motivate the best
available personnel for positions of substantial responsibility; to
provide additional incentive to directors, selected employees and
consultants of the Corporation to promote the success of the
business as measured by the value of its shares; and generally to
increase the commonality of interests among directors, employees,
consultants and other shareholders.
The Plan permits the
granting of stock options (including incentive stock options within
the meaning of Code Section 422 and non-qualified stock options),
stock appreciation rights, restricted or unrestricted stock awards,
phantom stock, performance awards, other stock-based awards, or any
combination of the foregoing.
2.
Definitions
. Under the Plan, except
where the context otherwise indicates, the following definitions
apply:
“
Administrator ” means the Board or the committee(s) or
officer(s) appointed by the Board that have authority to administer
the Plan as provided in Section 3 hereof.
“ Affiliate
” means any entity, whether now or hereafter existing, which
controls, is controlled by, or is under common control with, the
Corporation, including, but not limited to, joint ventures, limited
liability companies, and partnerships. For this purpose,
“control” shall mean ownership of 50% or more of the
total combined voting power or value of all classes of stock or
interests of the entity.
“ Award
” means any stock option, stock appreciation right, stock
award, phantom stock award, performance award, or other stock-based
award pursuant to the Plan.
“ Board
” means the Board of Directors of the Corporation.
“Cause ” has the meaning ascribed to
such term or words of similar import in Participant’s written
employment or service contract with the Corporation and, in the
absence of such agreement or definition, means Participant’s
(i) conviction of, or plea of guilty or nolo contendere to, a
felony or crime involving moral turpitude; (ii) fraud on or
misappropriation of any funds or property of the Corporation, any
affiliate, customer or vendor; (iii) personal dishonesty,
incompetence, willful misconduct, willful violation of any law,
rule or regulation (other than minor traffic violations or similar
offenses), or breach of fiduciary duty which involves personal
profit; (iv) willful misconduct in connection with
Participant’s duties or willful failure to perform
Participant’s responsibilities in the best interests of the
Corporation; (v) illegal use or distribution of drugs;
(vi) violation of any Corporation rule, regulation, procedure
or policy; or (vii) breach of any provision of any employment,
non-disclosure, non-competition, non-solicitation or other similar
agreement executed by Participant for the benefit of the
Corporation, all as determined by the Administrator, which
determination will be conclusive.
“Change of
Control” means if any of the following
occurs
(i)
any individual, firm,
corporation or other entity, or any group (as defined in Section
13(d)(3) or the Exchange Act becomes, directly or indirectly, the
beneficial owner (as defined in the general rules and regulations
of the Securities and Exchange Commission with respect to Sections
13(d) and 13(g) of the Act) of more than 35% of the then
outstanding shares of the Corporation's capital stock entitled vote
generally in the election of directors of the Corporation;
or
(ii)
the stockholders of the
Corporation approve a definitive agreement for (i) the merger or
other business combination of the Corporation with or into another
corporation pursuant to which the stockholders of the Corporation
do not own, immediately after the transaction, more than 50% of the
voting power of the corporation that survives and is a publicly
owned corporation and not a subsidiary of another corporation, or
(ii) the sale, exchange or other disposition of all or
substantially all of the assets of the Corporation.
“ Code
” means the Internal Revenue Code of 1986, as amended, and
any regulations promulgated thereunder.
“ Common
Stock ” means the Corporation’s common stock, par
value $0.001 per share.
“
Corporation ” means Nitro Petroleum, Inc., a Nevada
corporation.
“
Consultant ” means an individual consultant or advisor
who renders or has rendered bona fide services, including acting as
distributors for the Corporation’s product line(s), other
than services in connection with the offering or sale of securities
of the Corporation in a capital-raising transaction or as a market
maker or promoter of the Corporation's securities.
“
Disability ” shall mean the inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than twelve months. The
Administrator may require such proof of Disability as the
Administrator in its sole discretion deems appropriate and the
Administrator’s good faith determination as to whether
Participant is totally and permanently disabled will be final and
binding on all parties concerned.
“ Employee
” means any person employed by the Corporation or any
affiliate, other than in the capacity as director, advisory
director or comparable status.
“ Exchange
Act ” means the Securities Exchange Act of 1934, as
amended.
“ Fair Market
Value ” means, with respect to a share of Common Stock
for any purpose on a particular date: (i) the closing price quoted
on the Nasdaq Stock Market or other national securities exchange or
national securities association that is the principal market for
the Common Stock, or (ii) if the Common Stock is not so listed, the
last or closing price on the relevant date quoted on the OTC
Bulletin Board Service or by Pink Sheets LLC or a comparable
service as determined in the Administrator’s sole discretion;
or (iii) if the Common Stock is not listed or quoted by any of
the above, the average of the closing bid and asked prices on the
relevant date furnished by a professional market maker for the
Common Stock selected by the Administrator in its sole discretion.
If the Common Stock is listed or quoted as described in clause (i),
clause (ii) or clause (iii) above, as applicable, but no public
trading of the Common Stock occurs on the relevant date, then Fair
Market Value shall be determined as of the nearest preceding date
on which trading of the Common Stock occurred. For all purposes
under the Plan, the term “relevant date” as used in
this definition means either the date as of which Fair Market Value
is to be determined or the nearest preceding date on which public
trading of the Common Stock occurred, as determined in the
Administrator’s sole discretion.
“ Grant
Agreement ” means a written document memorializing the
terms and conditions of an Award granted pursuant to the Plan. Each
Grant Agreement shall incorporate the terms of the Plan.
“
Participants ” shall have the meaning set forth in
Section 5.
“ Parent
” shall mean a corporation, whether nor or hereafter
existing, within the meaning of the definition of “parent
corporation” provided in Code section 424(e), or any
successor thereto.
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“ Performance
Goals ” shall mean performance goals established by the
Administrator which may be based on one or business criteria
selected by the Administrator that apply to an individual or group
of individuals, the Corporation and/or one or more of its
Affiliates either separately or together, over such performance
period as the Administrator may designate, including, but not
limited to, criteria based on operating income, earnings or
earnings growth, sales, return on assets, equity or investment,
regulatory compliance, satisfactory internal or external audits,
improvement of financial ratings, achievement of balance sheet or
income statement objectives, or any other objective goals
established by the Administrator, and may be absolute in their
terms or measured against or in relationship to other companies
comparably, similarly or otherwise situated.
“
Subsidiary ” and “ Subsidiaries ”
shall mean only a corporation or corporations, whether now or
hereafter existing, within the meaning of the definition of
“subsidiary corporation” provided in section 424(f) of
the Code, or any successor thereto.
“ Ten-Percent
Stockholder ” shall mean a Participant who (applying the
rules of Code section 424(d)) owns stock possessing more than 10%
of the total combined voting power or value of all classes of stock
or interests of the Corporation.
3.
Administration
.
(a)
Administration of the
Plan . The
Plan shall be administered by the Board or a committee that may be
appointed by the Board from time to time. To the extent allowed by
applicable state or federal law, the Board by resolution may
authorize an officer or officers to grant Awards (other than stock
Awards) to other officers and employees of the Corporation and its
Affiliates, and, to the extent of such authorization, such officer
or officers shall be the Administrator.
(b)
Powers of the
Administrator . The Administrator shall have all
the powers vested in it by the terms of the Plan, such powers to
include authority, in its sole discretion, to grant Awards under
the Plan, prescribe Grant Agreements evidencing such Awards and
establish programs for granting Awards.
The Administrator shall
have full power and authority to take all other actions necessary
to carry out the purpose and intent of the Plan, including, but not
limited to, the authority to: (i) determine the eligible
persons to whom, and the time or times at which, Awards shall be
granted; (ii) determine the types of Awards to be granted;
(iii) determine the number of shares to be covered by or used
for reference purposes for each Award; (iv) impose such terms,
limitations, restrictions and conditions (not inconsistent with the
Plan) upon any such Award as the Administrator shall deem
appropriate, including, but not limited to, whether a stock option
shall be an incentive stock option or a nonqualified stock option,
any exceptions to nontransferability, any Performance Goals
applicable to Awards, any provisions relating to vesting, any
circumstances in which the Awards would terminate, the period
during which Awards may be exercised, and the period during which
Awards shall be subject to restrictions; (v) modify, amend,
extend or renew outstanding Awards, or accept the surrender of
outstanding Awards and substitute new Awards (provided however,
that, except as provided in Section 6 or 7(d) of the Plan, any
modification that would materially adversely affect any outstanding
Award shall not be made without the consent of the holder);
(vi) accelerate, extend or otherwise change the time in which
an Award may be exercised or becomes payable and to waive or
accelerate the lapse, in whole or in part, of any restriction or
condition with respect to such Award, including, but not limited
to, any restriction or condition with respect to the vesting or
exercisability of an Award following termination of any
grantee’s employment or other relationship with the
Corporation or an Affiliate; (vii) establish objectives and
conditions (including, without limitation, vesting criteria), if
any, for earning Awards and determining whether such objectives and
conditions have been satisfied; (viii) determine the Fair Market
Value of the Common Stock from time to time in accordance with the
Plan; and (ix) for any purpose, including but not limited to,
qualifying for preferred tax treatment under foreign tax laws or
otherwise complying with the regulatory requirements of local or
foreign jurisdictions, to establish, amend, modify, administer or
terminate sub-plans, and prescribe, amend and rescind rules and
regulations relating to such sub-plans.
The Administrator shall
have full power and authority, in its sole discretion, to
administer and interpret the Plan, Grant Agreements and all other
documents relevant to the Plan and Awards issued thereunder, and to
adopt and interpret such rules, regulations, agreements, guidelines
and instruments for the administration of the Plan and for the
conduct of its business as the Administrator deems necessary or
advisable.
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(c)
Non-Uniform
Determinations . The Administrator’s
determinations under the Plan (including, without limitation,
determinations of the persons to receive Awards, the form, amount
and timing of such Awards, the terms and provisions of such Awards
and the Grant Agreements evidencing such Awards) need not be
uniform and may be made by the Administrator selectively among
persons who receive, or are eligible to receive, Awards under the
Plan, whether or not such persons are similarly
situated.
(d)
Limited
Liability .
To the maximum extent permitted by law, no member of the
Administrator shall be liable for any action taken or decision made
in good faith relating to the Plan or any Award
thereunder.
(e)
I ndemnification
. To the maximum extent permitted by law and by the
Corporation’s charter and by-laws, the members of the
Administrator shall be indemnified by the Corporation in respect of
all their activities under the Plan.
(f)
Reliance on
Report
