exv10w4






Exhibit 10.4




NONQUALIFIED STOCK OPTION AGREEMENT




MAKEMUSIC INC.

2003 EQUITY INCENTIVE PLAN



     THIS AGREEMENT, made effective as of this __ day of _____, __________, by and between
MakeMusic, Inc., a Minnesota corporation (the “Company”), and _______(“Participant”).



W I T N E S S E T H:




     WHEREAS, Participant on the date hereof is a key employee, officer, director of or consultant
or advisor the Company or one of its Subsidiaries; and



     WHEREAS, the Company wishes to grant a nonqualified stock option to Participant to purchase
shares of the Company’s Common Stock pursuant to the Company’s 2003 Equity Incentive Plan (the
“Plan”); and



     WHEREAS, the Administrator of the Plan has authorized the grant of a nonqualified stock option
to Participant and has determined that, as of the effective date of this Agreement, the fair market
value of the Company’s Common Stock is $______ per share;



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto agree as follows:



     1. Grant of Option. The Company hereby grants to Participant on the date set forth
above (the “Date of Grant”), the right and option (the “Option”) to purchase all or portions of an
aggregate of ___________ (_______) shares of Common Stock at a per share price of $____ on the
terms and conditions set forth herein, and subject to adjustment pursuant to Section 14 of the
Plan. This Option is a nonqualified stock option and will not be treated as an incentive stock
option, as defined under Section 422, or any successor provision, of the Internal Revenue Code of
1986, as amended (the “Code”), and the regulations thereunder.



     2. Duration and Exercisability.



          a. General. The term during which this Option may be exercised shall terminate on
_________, except as otherwise provided in Paragraphs 2(b) and 2(c) below. This Option shall
become exercisable according to the following schedule:



Once the Option becomes exercisable, Participant may continue to exercise this Option under the
terms and conditions of this Agreement until the termination of the Option as provided herein. If
Participant does not purchase upon an exercise of this Option the full number of shares which





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Participant is then entitled to purchase, Participant may purchase upon any subsequent exercise
prior to this Option’s termination such previously unpurchased shares in addition to those
Participant is otherwise entitled to purchase.




          b. Termination of Relationship (other than Death). If Participant’s ceases to be a an
employee, consultant or director of the Company or any Subsidiary for any reason other than death,
this Option shall thereafter be exercisable only to the extent the Option was exercisable on the
date on which Participant’s relationship with the Company or Subsidiary has terminated, but had not
previously been exercised. To the extent this Option was not exercisable upon the termination of
such relationship, or if Participant does not exercise the Option within the time specified in this
Paragraph 2, all rights of the Participant under this Option shall be forfeited.




          c. Death. In the event of Participant’s death, this Option shall be exercisable only
to the extent the Option was exercisable on the date of Participant’s death, but had not previously
been exercised. In such period following Participant’s death, this Option may be exercised by the
person or persons to whom Participant’s rights under this Option shall have passed by Participant’s
will or by the laws of descent and distribution only to the extent the Option was exercisable on
the vesting date immediately preceding the date of Participant’s death, but had not previously been
exercised. To the extent this Option was not exercisable upon the date of Participant’s death, or
if such person or persons fail to exercise this Option within the time specified in this Paragraph
2, all rights under this Option shall be forfeited.




     3. Manner of Exercise.



          a. General. The Option may be exercised only by Participant (or other proper party in
the event of death or incapacity), subject to the conditions of the Plan and subject to such other
administrative rules as the Administrator may deem advisable, by delivering within the Option
Period written notice of exercise to the Company at its principal office. The notice shall state
the number of shares as to which the Option is being exercised and shall be accompanied by payment
in full of the Option price for all shares designated in the notice. The exercise of the Option
shall be deemed effective upon receipt of such notice by the Company and upon payment that complies
with the terms of the Plan and this Agreement. The Option may be exercised with respect to any
number or all of the shares as to which it can then be exercised and, if partially exercised, may
be so exercised as to the unexercised shares any number of times during the Option period as
provided herein.




          b. Form of Payment. Subject to approval by the Administrator, payment of the option
price by Participant shall be in the form of cash, personal check, certified check or previously
acquired shares of Common Stock of the Company, or any combination thereof. Any stock so tendered
as part of such payment shall be valued at its Fair Market Value as provided in the Plan. For
purposes of this Agreement, “previously acquired shares of Common Stock” shall include shares of
Common Stock that are already owned by Participant at the time of exercise.




          c. Stock Transfer Records. As soon as practicable after the effective exercise of all
or any part of the Option, Participant shall be recorded on the stock transfer books of the Company
as the owner of the shares purchased, and the Company shall deliver to Participant one or






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more duly issued stock certificates evidencing such ownership. All requisite original issue or
transfer documentary stamp taxes shall be paid by the Company.




     4. Miscellaneous.



          a. Rights as Shareholder. This Agreement shall not confer on Participant any right
with respect to the continuance of any relationship with the Company or any of its Subsidiaries,
nor will it interfere in any way with the right of the Company to terminate such relationship.
Participant shall have no rights as a shareholder with respect to shares subject to this Option
until such shares have been issued to Participant upon exercise of this Option. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other
property), distributions or other rights for which the record date is prior to the date such shares
are issued, except as provided in Section 14 of the Plan.




          b. Securities Law Compliance. The exercise of all or any parts of this Option shall
only be effective at such time as counsel to the Company shall have determined that the issuance
and delivery of Common Stock pursuant to such exercise will not violate any state or federal
securities or other laws. Participant may be required by the Company, as a condition of the
effectiveness of any exercise of this Option, to agree in writing that all Common Stock to be
acquired pursuant to such exercise shall be held, until such time that such Common Stock is
registered and freely tradable under applicable state and federal securities laws, for
Participant’s own account without a view to any further distribution thereof, that the certificates
for such shares shall bear an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and federal securities laws.




          c. Mergers, Recapitalizations, Stock Splits, Etc. Pursuant and subject to Section 14
of the Plan, certain changes in the number or character of the Common Stock of the Company (through
sale, merger, consolidation, exchange, reorganization, divestiture (including a spin-off),
liquidation, recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Participant’s rights with respect to any
unexercised portion of the Option (i.e., Participant shall have such “anti-dilution” rights
under the Option with respect to such events, but shall not have “preemptive” rights).




          d. Shares Reserved. The Company shall at all times during the option period reserve
and keep available such number of shares as will be sufficient to satisfy the requirements of this
Agreement.




          e. Withholding Taxes. In order to permit the Company to comply with all applicable
federal or state income tax laws or regulations, the Company may take such action as it deems
appropriate to insure that, if necessary, all applicable federal or state payroll, income or other
taxes are withheld from any amounts payable by the Company to Participant. If the Company is
unable to withhold such federal and state taxes, for whatever reason, Participant hereby agrees to
pay to the Company an amount equal to the amount the Company would otherwise be required to
withhold under federal or state law.







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               Subject to such rules as the Administrator may adopt, the Administrator may, in its sole
discretion, permit Participant to satisfy such withholding tax obligations, in whole or in part (i)
by delivering shares of Common Stock of having an equivalent fair market value, or (ii) by electing
to have the Company withhold shares of Common Stock otherwise issuable to Participant having a fair
market value equal to the minimum amount required to be withheld for tax purposes. Participant’s
election to have shares withheld for purposes of such withholding tax obligations shall be made on
or before the date that triggers such obligations or, if later, the date that the amount of tax to
be withheld is determined under applicable tax law. Participant’s election shall be approved by
the Administrator and otherwise comply with such rules as the Administrator may adopt to assure
compliance with Rule 16b-3 or any successor provision, as then in effect, of the General Rules and
Regulations under the Securities and Exchange Act of 1934, if applicable.



          f. Nontransferability. During the lifetime of Participant, the accrued Option shall
be exercisable only by Participant or by the Participant’s guardian or other legal representative,
and shall not be assignable or transferable by Participant, in whole or in part, other than by will
or by the laws of descent and distribution.




          g. 2003 Equity Incentive Plan. The Option evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan has been made available to Participant and is hereby
incorporated into this Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. All defined terms of the Plan shall have the same meaning
when used in this Agreement. The Plan governs this Option and, in the event of any questions as
to the construction of this Agreement or in the event of a conflict between the Plan and this
Agreement, the Plan shall govern, except as the Plan otherwise provides.




          h. Lockup Period Limitation. Participant agrees that in the event the Company advises
Participant that it plans an underwritten public offering of its Common Stock in compliance with
the Securities Act of 1933, as amended, and that the underwriter(s) seeks to impose restrictions
under which certain shareholders may not sell or contract to sell or grant any option to buy or
otherwise dispose of part or all of their stock purchase rights of the underlying Common Stock,
Participant hereby agrees that for a period not to exceed 180 days from the prospectus, Participant
will not sell or contract to sell or grant an option to buy or otherwise dispose of this option or
any of the underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).




          i. Blue Sky Limitation. Notwithstanding anything in this Agreement to the contrary,
in the event the Company makes any public offering of its securities and determines in its sole
discretion that it is necessary to reduce the number of issued but unexercised stock purchase
rights so as to comply with any state securities or Blue Sky law limitations with respect thereto,
the Board of Directors of the Company shall have the right (i) to accelerate the exercisability of
this Option and the date on which this Option must be exercised, provided that the Company gives
Participant 15 days’ prior written notice of such acceleration, and (ii) to cancel any portion of
this Option or any other option granted to Participant pursuant to the Plan which is not exercised
prior to or contemporaneously with such public offering. Notice shall be deemed given when
delivered






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personally or when deposited in the United States mail, first class postage prepaid and addressed
to Participant at the address of Participant on file with the Company.




          j. Stock Legend. The Administrator may require that the certificates for any shares
of Common Stock purchased by Participant (or, in the case of death, Participant’s successors) shall
bear an appropriate legend to reflect the restrictions of Paragraph 4(b) and Paragraphs 4(h)
through 4(k) of this Agreement.




          k. Scope of Agreement. This Agreement shall bind and inure to the benefit of the
Company and its successors and assigns and Participant and any successor or successors of
Participant permitted by Paragraph 2 or Paragraph 4(f) above.




          l. Arbitration. Any dispute arising out of or relating to this Agreement or the
alleged breach of it, or the making of this Agreement, including claims of fraud in the
inducement, shall be discussed between the disputing parties in a good faith effort to arrive at
a mutual settlement of any such controversy. If, notwithstanding, such dispute cannot be
resolved, such dispute shall be settled by binding arbitration. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall
be a retired state or federal judge or an attorney who has practiced securities or business
litigation for at least 10 years. If the parties cannot agree on an arbitrator within 20 days,
any party may request that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions of this
Agreement, and the commercial arbitration rules of the American Arbitration Association, unless
such rules are inconsistent with the provisions of this Agreement. Limited civil discovery shall
be permitted for the production of documents and taking of depositions. Unresolved discovery
disputes may be brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court of this state
could order or grant; provided, however, that punitive or exemplary damages shall not be awarded.
The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, all
of its costs and fees, including the arbitrator’s fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys’ fees. Unless otherwise agreed by the parties,
the place of any arbitration proceedings shall be Hennepin County, Minnesota.




[Signature page follows.]






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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.




	 	 	 	 	 
	 	MAKEMUSIC, INC.

 	 
	 	By:  	 	 
	 	 	Its: 
	 
	 	 	 
	 	  	
 	 
	 	 	Participant