Exhibit 4.1
INFOSPACE, INC. 2001 NONSTATUTORY STOCK OPTION PLAN
(as amended and restated effective October 19, 2001)
INFOSPACE, INC.
2001 NONSTATUTORY STOCK OPTION PLAN
(As Amended and Restated Effective as of October 19, 2001)
The following constitutes the provisions of the InfoSpace, Inc. 2001
Nonstatutory Stock Option Plan, as amended and restated effective as of October
19, 2001.
(1) Purposes of the Plan. The purposes of the Plan are:
. to attract and retain the best available personnel for positions of
substantial responsibility,
. to provide additional incentive to Employees and Consultants, and
. to promote the success of the Company's business.
Options granted under the Plan will be Nonstatutory Stock Options.
Restricted Stock may also be granted under the Plan.
(2) Definitions. As used herein, the following definitions shall apply:
a) "Administrator" means the Board or any of its Committees as shall be
administering the Plan, in accordance with Section 4 of the Plan.
b) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or quotation
system on which the Common Stock is listed or quoted and the applicable laws of
any foreign country or jurisdiction where Options or Restricted Stock, or will
be, granted under the Plan.
c) "Award" means, individually or collectively, a grant under the Plan
of Nonstatutory Stock Options or Restricted Stock.
d) "Award Agreement" means the written agreement setting forth the terms
and provisions applicable to each Award granted under the Plan.
e) "Board" means the Board of Directors of the Company.
f) "Code" means the Internal Revenue Code of 1986, as amended.
g) "Committee" means a committee of Directors appointed by the Board in
accordance with Section 4 of the Plan.
h) "Common Stock" means the common stock of the Company.
i) "Company" means InfoSpace, Inc., a Delaware corporation.
j) "Consultant" means any natural person, including an advisor, engaged
by the Company or a Parent or Subsidiary to render services to such entity.
k) "Director" means a member of the Board.
l) "Employee" means any person employed by the Company or any Parent or
Subsidiary of the Company. A Service Provider shall not cease to be an Employee
in the case of (i) any leave of absence approved by the Company, or (ii)
transfers between locations of the Company or between the Company, its Parent,
any Subsidiary, or any successor. Neither service as a Director nor payment of
a director's fee by the Company shall be sufficient to constitute "employment"
by the Company.
m) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
n) "Exercise Price" means the price at which a Share may be purchased by
a Participant pursuant to the exercise of an Option.
o) "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
(i) If the Common Stock is listed on any established stock exchange
or a national market system, including without limitation the Nasdaq National
Market or The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair
Market Value shall be the closing sales price for such stock as quoted on such
exchange or system on the day of determination, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable, or if there
were no sales on such date, the closing sales price for such stock as quoted on
such exchange or system on the last market trading day prior to the date of
determination;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the Fair Market Value of
a Share of Common Stock shall be the mean between the high bid and low asked
prices for the Common Stock on the day of determination, as reported in The
Wall Street Journal or such other source as the Administrator deems reliable; or
(iii) In the absence of an established market for the Common Stock,
the Fair Market Value shall be determined in good faith by the Administrator.
p) "Nonstatutory Stock Option" means a stock option to purchase Shares
that is not intended to qualify as an incentive stock option within the meaning
of Section 422 of the Code and the regulations promulgated thereunder.
q) "Option" means a Nonstatutory Stock Option granted pursuant to the
Plan.
r) "Optioned Stock" means the Common Stock subject to an Option.
s) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
t) "Participant" means a Service Provider who has an outstanding Award.
u) "Period of Restriction" means the period during which the transfer of
Shares of Restricted Stock are subject to restrictions and therefore, the
Shares are subject to a substantial risk of forfeiture. As provided in Section
10, such restrictions may be based on the passage of time, the achievement of
target levels of performance, or the occurrence of other events as determined
by the Administrator, in its discretion.
v) "Plan" means this 2001 Nonstatutory Stock Option Plan, as amended
from time to time.
w) "Restricted Stock" means shares of Common Stock granted to a
Participant pursuant to Section 10.
x) "Service Provider" means an Employee or Consultant.
y) "Share" means a share of the Common Stock, as adjusted in accordance
with Section 11 of the Plan.
z) "Subsidiary" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
(3) Stock Subject to the Plan. Subject to the provisions of Section 11 of
the Plan, the maximum aggregate number of Shares that are available for
issuance under the Plan is 25,000,000 Shares. Such Shares may be authorized,
but unissued, or reacquired Common Stock.
If an Award expires or becomes unexercisable without having been exercised
in full, the unpurchased Shares which were subject thereto shall become
available for future grant or sale under the Plan (unless the Plan has
terminated); provided, however, that Shares that have actually been issued
under the Plan, whether upon exercise of an Option or pursuant to a grant of
Restricted Stock, shall not be returned to the Plan and shall not become
available for future distribution under the Plan, except that if Shares of
Restricted Stock are repurchased by the Company at their original purchase
price, such Shares again shall become available for future grant or sale under
the Plan.
(4) Administration of the Plan.
a) Administration. The Plan shall be administered by (i) the Board, or
(ii) a Committee, which committee shall be constituted to satisfy Applicable
Laws.
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b) Powers of the Administrator. Subject to the provisions of the Plan,
and in the case of a Committee, subject to the specific duties delegated by the
Board to such Committee, the Administrator shall have the authority, in its
discretion:
(i) to determine the Fair Market Value;
(ii) to select the Service Providers to whom Awards may be granted
hereunder;
(iii) to determine the number of Shares to be covered by each Award
granted hereunder;
(iv) to approve forms of agreement for use under the Plan;
(v) to determine the terms and conditions, not inconsistent with the
terms of the Plan or of any Award granted hereunder. Such terms and conditions
include, but are not limited to, the Exercise Price of any Option, the time or
times when Options may be exercised (which may be based on performance
criteria), any vesting acceleration or waiver of forfeiture restrictions, and
any restriction or limitation regarding any Award or the Shares relating
thereto, based in each case on such factors as the Administrator, in its sole
discretion, shall determine;
(vi) to reduce the Exercise Price of any Option to the then current
Fair Market Value if the Fair Market Value of the Optioned Stock shall have
declined since the date the Option was granted;
(vii) to construe and interpret the terms of the Plan and Awards
granted pursuant to the Plan;
(viii) to prescribe, amend and rescind rules and regulations relating
to the Plan, including rules and regulations relating to sub-plans established
for the purpose of satisfying applicable foreign laws;
(ix) to modify or amend each Award (subject to Section 14(b) of the
Plan), including the discretionary authority to extend the post-termination
exercisability period of Options longer than is otherwise provided for in the
Plan;
(x) to allow Participants to satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon
exercise of an Option or with respect to a grant of Restricted Stock that
number of Shares having a Fair Market Value equal to the minimum amount
required to be withheld. The Fair Market Value of the Shares to be withheld
shall be determined on the date that the amount of tax to be withheld is to be
determined. All elections by a Participant to have Shares withheld for this
purpose shall be made in such form and under such conditions as the
Administrator may deem necessary or advisable;
(xi) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Award previously granted by the
Administrator; and
(xii) to make all other determinations deemed necessary or advisable
for administering the Plan.
c) Effect of Administrator's Decision. The Administrator's decisions,
determinations and interpretations shall be final and binding on all
Participants and any other holders of Awards.
(5) Eligibility. Options and/or Restricted Stock may be granted to Service
Providers.
(6) Limitations.
a) Neither the Plan nor any Award shall confer upon a Participant any
right with respect to continuing the Participant's relationship as a Service
Provider, nor shall they interfere in any way with the Participant's right or
the Company's right to terminate such relationship at any time, with or without
cause.
b) The following limitations shall apply to grants of Options:
(i) No Service Provider shall be granted, in any fiscal year of the
Company, Options to purchase more than 4,000,000 Shares.
(ii) In connection with his or her initial service, a Service
Provider may be granted Options to purchase up to an additional 4,000,000
Shares, which shall not count against the limit set forth in subsection (i)
above.
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(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization as described in
Section 11.
(iv) If an Option is cancelled in the same fiscal year of the Company
in which it was granted (other than in connection with a transaction described
in Section 11), the cancelled Option will be counted against the limits set
forth in subsections (i) and (ii) above. For this purpose, if the exercise
price of an Option is reduced, the transaction will be treated as a
cancellation of the Option and the grant of a new Option.
(7) Term of Option. The term of each Option shall be determined by the Plan
Administrator and stated in the Award Agreement.
(8) Option Exercise Price and Consideration.
a) Exercise Price. The Exercise Price of the Shares to be issued
pursuant to the exercise of an Option shall be determined by the Administrator.
b) Waiting Period and Exercise Dates. At the time an Option is granted,
the Administrator shall fix the period within which the Option may be exercised
and shall determine any conditions that must be satisfied before the Option may
be exercised.
c) Form of Consideration. The Administrator shall determine the
acceptable form of consideration for exercising an Option, including the method
of payment. Such consideration may consist entirely of:
(i) cash;
(ii) check;
(iii) promissory note;
(iv) other Shares which, in the case of Shares acquired directly or
indirectly from the Company, (A) have been owned by the Participant for more
than six (6) months (or any shorter period necessary for the Company to avoid a
charge to its earnings for financial reporting purposes) on the date of
surrender, and (B) have a Fair Market Value on the date of surrender equal to
the aggregate Exercise Price of the Shares as to which said Option shall be
exercised;
(v) consideration received by the Company under a cashless exercise
program implemented by the Company in connection with the Plan;
(vi) such other consideration and method of payment for the issuance
of Shares to the extent permitted by Applicable Laws; or
(vii) any combination of the foregoing methods of payment.
d) Grant of Reload Options. The Plan Administrator may provide in an
Award Agreement that a Participant who exercises all or part of an Option by
payment of the Exercise Price with already-owned Shares, shall be granted an
additional option (a "Reload Option") for a number of shares of stock equal to
the number of Shares tendered to exercise the previously granted Option. As
determined by the Administrator, each Reload Option shall (a) have a grant date
which is the date as of which the previously granted Option is exercised, and
(b) be exercisable on the same terms and conditions as the previously granted
Option, except that the Exercise Price shall be determined as of the grant date.
(9) Exercise of Option. Any Option granted hereunder shall be exercisable
according to the terms of the Plan and at such times and under such conditions
as determined by the Administrator and set forth in the Award Agreement. Unless
the Administrator provides otherwise, vesting of Options granted hereunder
shall be suspended during any unpaid leave of absence. An Option may not be
exercised for a fraction of a Share.
An Option shall be deemed exercised when the Company receives: (i) written
or electronic notice of exercise (in accordance with the terms of the terms of
the Award Agreement) from the person entitled to exercise
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the Option, and (ii) full payment of the aggregate Exercise Price of the Shares
with respect to which the Option is exercised. Full payment may consist of any
consideration and method of payment authorized by the Administrator and
permitted by the Award Agreement and the Plan. Shares issued upon exercise of
an Option shall be issued in the name of the Participant or, if requested by
the Participant, in the name of the Participant and his or her spouse. Until
the Shares are issued (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company), no right to
vote or receive dividends or any other rights as a stockholder shall exist with
respect to the Optioned Stock, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other right
for which the record date is prior to the date the Shares are issued.
Exercising an Option in any manner shall decrease the number of Shares
thereafter available, both for purposes of the Plan and for sale under the
Option, by the number of Shares as to which the Option is exercised.
(10) Restricted Stock.
a) Grant of Restricted Stock. Subject to the terms and provisions of the
Plan, the Administrator, at any time and from time to time, may grant Shares of
Restricted Stock to Service Providers in such amounts as the Administrator, in
its sole discretion, shall determine. The Administrator, in its sole
discretion, shall determine the number of such Shares to be granted to each
Participant.
b) Restricted Stock Agreement. Each Award of Restricted Stock shall be
evidenced by an Award Agreement that shall specify the Period of Restriction,
the number of Shares granted, any price to be paid for the Shares, and such
other terms and conditions as the Administrator, in its sole discretion, shall
determine. Unless the Administrator determines otherwise, Shares of Restricted
Stock shall be held by the Company as escrow agent until the restrictions on
such Shares have lapsed.
c) Transferability. Shares of Restricted Stock may not be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated until
the end of the applicable Period of Restriction.
d) Other Restrictions. The Administrator, in its sole discretion, may
set restrictions based upon the achievement of specific performance objectives
(Company-wide, business unit or individual), applicable federal or state
securities laws, or any other basis determined by the Administrator in its
discretion.
e) Legend on Certificates. The Administrator, in its discretion, may
legend the certificates representing Restricted Stock to give appropriate
notice of such restrictions. For example, the Administrator may determine that
some or all certificates representing Shares of Restricted Stock shall bear the
following legend:
"The sale or other transfer of the shares of stock represented by this
certificate, whether voluntary, involuntary, or by operation of law, is subject
to certain restrictions on transfer as set forth in the InfoSpace, Inc. 2001
Nonstatutory Stock Option Plan, and in a Restricted Stock Agreement. A copy of
the Plan and such Restricted Stock Agreement may be obtained from the Secretary
of InfoSpace, Inc."
f) Removal of Restrictions. Shares of Restricted Stock covered by each
Restricted Stock grant made under the Plan shall be released from escrow as
soon as practicable after the last day of the Period of Restriction. The
Administrator, in its discretion, may accelerate the time at which any
restrictions shall lapse, and remove any restrictions. After the restrictions
have lapsed, the Participant shall be entitled to have any legend or legends
under Section 10(e) removed from his or her Share certificate, and the Shares
shall be freely transferable by the Participant.
g) Voting Rights. During the Period of Restriction, Participants holding
Shares of Restricted Stock granted hereunder may exercise full voting rights
with respect to those Shares, unless otherwise provided in the Award Agreement.
h) Dividends and Other Distributions. During the Period of Restriction,
Participants holding Shares of Restricted Stock shall be entitled to receive
all dividends and other distributions paid with respect to such Shares unless
otherwise provided in the Award Agreement. If any such dividends or
distributions are paid in
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Shares, the Shares shall be subject to the same restrictions on transferability
and forfeitability as the Shares of Restricted Stock with respect to which they
were paid.
i) Return of Restricted Stock to the Company. On the date set forth in
the Award Agreement, the Restricted Stock for which restrictions have not
lapsed shall revert to the Company and again shall become available for grant
under the Plan.
(11) Adjustments in Awards and Authorized Shares. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, split-up, Share combination, or other change in
the corporate structure of the Company affecting the Shares, the Administrator
shall adjust the number and class of Shares which may be delivered under the
Plan, the number, class, and price of Shares subject to outstanding Awards, and
the numerical limits of Section 6(b)(i) and (ii), in such manner as the
Administrator (in its sole discretion) shall determine to be appropriate to
prevent the dilution or diminution of such Awards.
(12) Date of Grant. The date of grant of an Award shall be, for all
purposes, the date on which the Administrator makes the determination granting
such Award, or such other later date as is determined by the Administrator.
Notice of the determination shall be provided to each Participant within a
reasonable time after the date of such grant.
(13) Tax Withholding.
a) Withholding Requirements. Prior to the delivery of any Shares or cash
pursuant to an Award (or exercise thereof), the Company shall have the power
and the right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state, and local taxes
(including the Participant's FICA obligation) required to be withheld with
respect to such Award (or exercise thereof).
b) Withholding Arrangements. The Administrator, in its sole discretion
and pursuant to such procedures as it may specify from time to time, may permit
a Participant to satisfy such tax withholding obligation, in whole or in part
by (a) electing to have the Company withhold otherwise deliverable Shares, or
(b) delivering to the Company already-owned shares having a Fair Market Value
equal to the amount required to be withheld. The amount of the withholding
requirement shall be deemed to include any amount which the Administrator
agrees may be withheld at the time the election is made, not to exceed the
amount determined by using the minimum federal, state or local marginal income
tax rates applicable to the Participant with respect to the Award on the date
that the amount of tax to be withheld is to be determined. The Fair Market
Value of the Shares to be withheld or delivered shall be determined as of the
date that the taxes are required to be withheld.
(14) Amendment and Termination of the Plan.
a) Amendment and Termination. The Board may at any time amend, alter,
suspend or terminate the Plan.
b) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of the Plan shall impair the rights of any
Participant without his or her consent, unless mutually agreed otherwise
between the Participant and the Administrator, which agreement must be in
writing and signed by the Participant and the Company. Termination of the Plan
shall not affect the Administrator's ability to exercise the powers granted to
it hereunder with respect to Awards granted under the Plan prior to the date of
such termination.
(15) Conditions Upon Issuance of Shares.
a) Legal Compliance. Shares shall not be issued pursuant to the exercise
of an Option or grant of Restricted Stock unless the exercise of such Option
and the issuance and delivery of such Shares shall comply with Applicable Laws
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
b) Investment Representations. As a condition to the exercise of an
Award, the Company may require the person exercising such Award to represent
and warrant at the time of any such exercise that the
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Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required.
(16) Inability to Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's counsel to be necessary to the lawful issuance and sale
of any Shares hereunder, shall relieve the Company of any liability in respect
of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
(17) Nontransferability of Awards. No Award granted under the Plan may be
sold, transferred, pledged, assigned, or otherwise alienated or hypothecated,
other than by will, by the laws of descent and distribution. All rights with
respect to an Award granted to a Participant shall be available during his or
her lifetime only to the Participant.
(18) Reservation of Shares. The Company, during the term of this Plan, will
at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
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EXECUTION
IN WITNESS WHEREOF, InfoSpace, Inc., by its duly authorized officer, has
executed the restated Plan on the date indicated below.
INFOSPACE, INC.
Dated: _____________________, 2001 By _______________________________
Title:
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