Exhibit 10.15
EARTHWEB INC.
1998 STOCK INCENTIVE PLAN
(amended and restated as of May 31, 2000)
1) Purposes of the Plan. The purposes of this Stock Incentive Plan are to
attract and retain the best available personnel, to provide additional
incentive to Employees, Directors and Consultants and to promote the
success of the Company's business.
2) Definitions. As used herein, the following definitions shall apply:
a) "Administrator" means the Board or any of the Committees appointed to
administer the Plan.
b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 promulgated under the Exchange
Act.
c) "Applicable Laws" means the legal requirements relating to the
administration of stock incentive plans, if any, under applicable
provisions of federal securities laws, state corporate and securities
laws, the Code, the rules of any applicable stock exchange or national
market system, and the rules of any foreign jurisdiction applicable to
Awards granted to residents therein.
d) "Award" means the grant of an Option, SAR, Dividend Equivalent Right,
Restricted Stock, Performance Unit, Performance Share, or other right
or benefit under the Plan.
e) "Award Agreement" means the written agreement evidencing the grant of
an Award executed by the Company and the Grantee, including any
amendments thereto.
f) "Board" means the Board of Directors of the Company.
g) "Cause" means, with respect to the termination by the Company or a
Related Entity of the Grantee's Continuous Service, that such
termination is for "Cause" as such term is expressly defined in a then-
effective written agreement between the Grantee and the Company or such
Related Entity, or in the absence of such then-effective written
agreement and definition, is based on, in the determination of the
Administrator, the Grantee's: (i) refusal or failure to act in
accordance with any specific, lawful direction or order of the Company
or a Related Entity; (ii) unfitness or unavailability for service or
unsatisfactory performance (other than as a result of Disability);
(iii) performance of any act or failure to perform any act in bad
faith and to the detriment of the Company or a Related Entity; (iv)
dishonesty, intentional misconduct or material breach of any agreement
with the Company or a Related Entity; or (v) commission of a crime
involving dishonesty, breach of trust, or physical or emotional harm
to any person. At least 30 days prior to the termination of the
Grantee's Continuous Service pursuant to (i) or (ii) above, the
Administrator shall provide the Grantee with notice of the Company's or
such Related Entity's intent to terminate, the reason therefore, and an
opportunity for the Grantee to cure such defects in his or her service
to the Company's or
such Related Entity's satisfaction. During this 30 day (or longer)
period, no Award issued to the Grantee under the Plan may be exercised
or purchased.
h) "Change in Control" means a change in ownership or control of the
Company effected through either of the following transactions:
i) the direct or indirect acquisition by any person or related group
of persons (other than an acquisition from or by the Company or by
a Company-sponsored employee benefit plan or by a person that
directly or indirectly controls, is controlled by, or is under
common control with, the Company) of beneficial ownership (within
the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Company's outstanding securities pursuant to a
tender or exchange offer made directly to the Company's
stockholders which a majority of the Continuing Directors who are
not Affiliates or Associates of the offeror do not recommend such
stockholders accept, or
ii) a change in the composition of the Board over a period of
thirty-six (36) months or less such that a majority of the Board
members (rounded up to the next whole number) ceases, by reason of
one or more contested elections for Board membership, to be
comprised of individuals who are Continuing Directors.
i) "Code" means the Internal Revenue Code of 1986, as amended.
j) "Committee" means any committee appointed by the Board to administer the
Plan.
k) "Common Stock" means the common stock of the Company.
l) "Company" means EarthWeb Inc., a Delaware corporation.
m) "Consultant" means any person (other than an Employee or, solely with
respect to rendering services in such person's capacity as a Director)
who is engaged by the Company or any Related Entity to render
consulting or advisory services to the Company or such Related Entity.
n) "Continuing Directors" means members of the Board who either (i) have
been Board members continuously for a period of at least thirty-six
(36) months or (ii) have been Board members for less than thirty-six
(36) months and were elected or nominated for election as Board members
by at least a majority of the Board members described in clause (i) who
were still in office at the time such election or nomination was
approved by the Board.
o) "Continuous Service" means that the provision of services to the Company
or a Related Entity in any capacity of Employee, Director or Consultant,
is not interrupted or terminated. Continuous Service shall not be
considered interrupted in the case of (i) any approved leave of absence,
(ii) transfers between locations of the Company or among the Company,
any Related Entity, or any successor, in any capacity of Employee,
Director or Consultant, or (iii) any change in status as long as the
individual remains in the service of the Company or a Related Entity in
any capacity of Employee, Director or Consultant (except as otherwise
provided in the Award Agreement). An approved leave of absence shall
include sick leave, military leave, or any other authorized personal
leave. For purposes of Incentive Stock
Options, no such leave may exceed ninety (90) days, unless reemployment
upon expiration of such leave is guaranteed by statute or contract.
p) "Corporate Transaction" means any of the following transactions:
i) a merger or consolidation in which the Company is not the
surviving entity, except for a transaction the principal purpose
of which is to change the state in which the Company is
incorporated;
ii) the sale, transfer or other disposition of all or substantially
all of the assets of the Company (including the capital stock of
the Company's subsidiary corporations) in connection with the
complete liquidation or dissolution of the Company;
iii) any reverse merger in which the Company is the surviving entity
but in which securities possessing more than fifty percent (50%)
of the total combined voting power of the Company's outstanding
securities are transferred to a person or persons different from
those who held such securities immediately prior to such merger;
or
iv) an acquisition by any person or related group of persons (other
than the Company or by a Company-sponsored employee benefit plan)
of beneficial ownership (within the meaning of Rule 13d-3 of the
Exchange Act) of securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's
outstanding securities (whether or not in a transaction also
constituting a Change in Control), but excluding any such
transaction that the Administrator determines shall not be a
Corporate Transaction.
q) "Covered Employee" means an Employee who is a "covered employee" under
Section 162(m)(3) of the Code.
r) "Director" means a member of the Board or the board of directors of any
Related Entity.
s) "Disability" means that a Grantee is permanently unable to carry out
the responsibilities and functions of the position held by the Grantee
by reason of any medically determinable physical or mental impairment.
A Grantee will not be considered to have incurred a Disability unless
he or she furnishes proof of such impairment sufficient to satisfy the
Administrator in its discretion.
t) "Dividend Equivalent Right" means a right entitling the Grantee to
compensation measured by dividends paid with respect to Common Stock.
u) "Employee" means any person, including an Officer or Director, who is
an employee of the Company or any Related Entity. The payment of a
director's fee by the Company or a Related Entity shall not be
sufficient to constitute "employment" by the Company.
v) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
w) "Fair Market Value" means, as of any date, the value of Common Stock
determined as follows:
i) Where there exists a public market for the Common Stock, the
Fair Market Value shall be (A) the closing price for a Share or
the last market trading day prior to the time of the determination
(or, if no closing price was reported on that date, on the last
trading date on which a closing price was reported) on the stock
exchange determined by the Administrator to be the primary market
for the Common Stock or the Nasdaq National Market, whichever is
applicable or (B) if the Common Stock is not traded on any such
exchange or national market system, the average of the closing bid
and asked prices of a Share on the Nasdaq Small Cap Market for the
day prior to the time of the determination (or, if no such prices
were reported on that date, on the last date on which such prices
were reported), in each case, as reported in The Wall Street
Journal or such other source as the Administrator deems reliable;
or
ii) In the absence of an established market for the Common Stock of
the type described in (i), above, the Fair Market Value thereof
shall be determined by the Administrator in good faith.
x) "Grantee" means an Employee, Director or Consultant who receives
an Award pursuant to an Award Agreement under the Plan.
y) "Incentive Stock Option" means an Option intended to qualify as an
incentive stock option within the meaning of Section 422 of the
Code.
z) "Non-Qualified Stock Option" means an Option not intended to
qualify as an Incentive Stock Option.
aa) "Officer" means a person who is an officer of the Company or a
Related Entity within the meaning of Section 16 of the Exchange
Act and the rules and regulations promulgated thereunder.
bb) "Option" means an option to purchase Shares pursuant to an Award
Agreement granted under the Plan.
cc) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
dd) "Performance--Based Compensation" means compensation qualifying
as" performance-based compensation" under Section 162(m) of the
Code.
ee) "Performance Shares" means Shares or an Award denominated in
Shares which may be earned in whole or in part upon attainment of
performance criteria established by the Administrator.
ff) "Performance Units" means an Award which may be earned in whole or
in part upon attainment of performance criteria established by the
Administrator and which may be settled for cash, Shares or other
securities or a combination of cash, Shares or other securities as
established by the Administrator.
gg) "Plan" means this 1998 Stock Incentive Plan.
hh) "Registration Date" means the first to occur of (i) the closing of
the first sale to the general public of (A) the Common Stock or
(B) the same class of securities of a successor corporation (or
its Parent) issued pursuant to a Corporate Transaction in exchange
for or in substitution of the Common Stock, pursuant to a
registration statement filed with and declared effective by the
Securities and Exchange Commission under the Securities Act of
1933, as amended; and (ii) in the event of a Corporate
Transaction, the date of the consummation of the Corporate
Transaction if the same class of securities of the successor
corporation (or its Parent) issuable in such Corporate Transaction
shall have been sold to the general public pursuant to a
registration statement filed with and declared effective by, on or
prior to the date of consummation of such Corporate Transaction,
the Securities and Exchange Commission under the Securities Act of
1933, as amended.
ii) "Related Entity" means any Subsidiary and any business,
corporation, partnership, Limited Liability Company or other
entity in which the Company or a Subsidiary holds a substantial
ownership interest, directly or indirectly.
jj) "Restricted Stock" means Shares issued under the Plan to the
Grantee for such consideration, if any, and subject to such
restrictions on transfer, rights of first refusal, repurchase
provisions, forfeiture provisions, and other terms and conditions
as established by the Administrator.
kk) "Rule 16b-3" means Rule 16b-3 promulgated under the Exchange Act
or any successor thereto.
ll) "SAR" means a stock appreciation right entitling the Grantee to
Shares or cash compensation, as established by the Administrator,
measured by appreciation in the value of Common Stock.
mm) "Share" means a share of the Common Stock.
nn) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
oo) "Related Entity Disposition" means the sale, distribution or other
disposition by the Company of all or substantially all of the
Company's interests in any Related Entity effected by a sale,
merger or consolidation or other transaction involving that
Related Entity or the sale of all or substantially all of the
assets of that Related Entity.
3) Stock Subject to the Plan.
a) Subject to the provisions of Section 10, below, the maximum aggregate
number of Shares which may be issued pursuant to Awards initially shall
be 3,771,354 Shares, plus an annual increase to be added on the first
day of the Company's fiscal year beginning in 2001 equal to four
percent (4%) of the number of Shares outstanding as of such date or a
lesser number of Shares determined by the Administrator.
Notwithstanding the foregoing, subject to the provisions of Section 10,
below, of the number of Shares specified above, the maximum aggregate
number of Shares available for grant of Incentive Stock Options shall
be 159,000 Shares, plus an annual increase to be added on the first day
of the Company's fiscal year
beginning in 2000 equal to the lesser of (x) 400,000 Shares, (y) four
tenths of one percent (.4%) of the number of Shares outstanding as of
such date, or (z) a lesser number of Shares determined by the
Administrator. The Shares to be issued pursuant to Awards may be
authorized, but unissued, or reacquired shares of Common Stock.
b) Any Shares covered by an Award (or portion of an Award) which is
forfeited or canceled, expires or is settled in cash, shall be deemed
not to have been issued for purposes of determining the maximum
aggregate number of Shares which may be issued under the Plan. If any
unissued Shares are retained by the Company upon exercise of an Award
in order to satisfy the exercise price for such Award or any
withholding taxes due with respect to such Award, such retained Shares
subject to such Award shall become available for future issuance under
the Plan (unless the Plan has terminated). Shares that actually have
been issued under the Plan pursuant to an Award shall not be returned
to the Plan and shall not become available for future issuance under
the Plan, except that if unvested Shares are forfeited, or repurchased
by the Company at their original purchase price, such Shares shall
become available for future grant under the Plan.
4) Administration of the Plan.
a) Plan Administrator.
i) Administration with Respect to Directors and Officers. With
respect to grants of Awards to Directors or Employees who are also
Officers or Directors of the Company, the Plan shall be
administered by (A) the Board or (B) a Committee designated by the
Board, which Committee shall be constituted in such a manner as to
satisfy the Applicable Laws and to permit such grants and related
transactions under the Plan to be exempt from Section 16(b) of the
Exchange Act in accordance with Rule 16b-3. Once appointed, such
Committee shall continue to serve in its designated capacity until
otherwise directed by the Board.
ii) Administration With Respect to Consultants and Other Employees.
With respect to grants of Awards to Employees or Consultants who
are neither Directors nor Officers of the Company, the Plan shall
be administered by (A) the Board or (B) a Committee designated by
the Board, which Committee shall be constituted in such a manner
as to satisfy the Applicable Laws. Once appointed, such Committee
shall continue to serve in its designated capacity until otherwise
directed by the Board. The Board may authorize one or more
Officers to grant such Awards and may limit such authority as the
Board determines from time to time.
iii) Administration With Respect to Covered Employees.
Notwithstanding the foregoing, grants of Awards to any Covered
Employee intended to qualify as Performance-Based Compensation
shall be made only by a Committee (or subcommittee of a Committee)
which is comprised solely of two or more Directors eligible to
serve on a committee making Awards qualifying as Performance-Based
Compensation. In the case of such Awards granted to Covered
Employees, references to the "Administrator" or to a Committee"
shall be deemed to be references to such Committee or
subcommittee.
iv) Administration Errors. In the event an Award is granted in a
manner inconsistent with the provisions of this subsection (a),
such Award shall be presumptively valid as of its grant date to
the extent permitted by the Applicable Laws.
b) Powers of the Administrator. Subject to Applicable Laws and the
provisions of the Plan (including any other powers given to the
Administrator hereunder), and except as otherwise provided by the
Board, the Administrator shall have the authority, in its discretion:
i) to select the Employees, Directors and Consultants to whom Awards
may be granted from time to time hereunder;
ii) to determine whether and to what extent Awards are granted
hereunder;
iii) to determine the number of Shares or the amount of other
consideration to be covered by each Award granted hereunder;
iv) to approve forms of Award Agreements for use under the Plan;
v) to determine the terms and conditions of any Award granted
hereunder;
vi) to amend the terms of any outstanding Award granted under the
Plan, provided that any amendment that would adversely affect the
Grantee's rights under an outstanding Award shall not be made
without the Grantee's written consent;
vii) to construe and interpret the terms of the Plan and Awards granted
pursuant to the Plan, including without limitation, any notice of
Award or Award Agreement, granted pursuant to the Plan;
viii) to establish additional terms, conditions, rules or procedures to
accommodate the rules or laws of applicable foreign jurisdictions
and to afford Grantees favorable treatment under such laws;
provided, however, that no Award shall be granted under any such
additional terms, conditions, rules or procedures with terms or
conditions which are inconsistent with the provisions of the Plan;
and
ix) to take such other action, not inconsistent with the terms of the
Plan, as the Administrator deems appropriate.
c) Effect of Administrator's Decision. All decisions, determinations and
interpretations of the Administrator shall be conclusive and binding on
all persons.
5) Eligibility. Awards other than Incentive Stock Options may be granted to
Employees, Directors and Consultants. Incentive Stock Options may be
granted only to Employees of the Company or a Subsidiary. An Employee,
Director or Consultant who has been granted an Award may, if otherwise
eligible, be granted additional Awards. Awards may be granted to such
Employees, Directors or Consultants who are residing in foreign
jurisdictions as the Administrator may determine from time to time.
6) Terms and Conditions of Awards.
a) Type of Awards. The Administrator is authorized under the Plan to award
any type of arrangement to an Employee, Director or Consultant that is
not inconsistent with the provisions of the Plan and that by its terms
involves or might involve the issuance of (i) Shares, (ii) an Option,
a SAR or similar right with a fixed or variable price related to the
Fair Market Value of the Shares and with an exercise or conversion
privilege related to the passage of time, the occurrence of one or
more events, or the satisfaction of performance criteria or other
conditions, or (iii) any other security with the value derived from the
value of the Shares. Such awards include, without limitation, Options,
SARs, sales or bonuses of Restricted Stock, Dividend Equivalent Rights,
Performance Units or Performance Shares, and an Award may consist of
one such security or benefit, or two (2) or more of them in any
combination or alternative.
b) Designation of Award. Each Award shall be designated in the Award
Agreement. In the case of an Option, the Option shall be designated as
either an Incentive Stock Option or a Non-Qualified Stock Option.
However, notwithstanding such designation, to the extent that the
aggregate Fair Market Value of Shares subject to Options designated as
Incentive Stock Options which become exercisable for the first time by
a Grantee during any calendar year (under all plans of the Company or
any Parent or Subsidiary) exceeds $100,000, such excess Options, to the
extent of the Shares covered thereby in excess of the foregoing
limitation, shall be treated as Non-Qualified Stock Options. For this
purpose, Incentive Stock Options shall be taken into account in the
order in which they were granted, and the Fair Market Value of the
Shares shall be determined as of the date the Option with respect to
such Shares is granted.
c) Conditions of Award. Subject to the terms of the Plan, the
Administrator shall determine the provisions, terms, and conditions of
each Award including, but not limited to, the Award vesting schedule,
repurchase provisions, rights of first refusal, forfeiture provisions,
form of payment (cash, Shares, or other consideration) upon settlement
of the Award, payment contingencies, and satisfaction of any
performance criteria. The performance criteria established by the
Administrator may be based on any one of, or combination of, increase
in share price, earnings per share, total stockholder return, return on
equity, return on assets, return on investment, net operating income,
cash flow, revenue, economic value added, personal management
objectives, or other measure of performance selected by the
Administrator. Partial achievement of the specified criteria may result
in a payment or vesting corresponding to the degree of achievement as
specified in the Award Agreement.
d) Acquisitions and Other Transactions. The Administrator may issue Awards
under the Plan in settlement, assumption or substitution for,
outstanding awards or obligations to grant future awards in connection
with the Company or a Related Entity acquiring another entity, an
interest in another entity or an additional interest in a Related
Entity whether by merger, stock purchase, asset purchase or other form
of transaction.
e) Deferral of Award Payment. The Administrator may establish one or more
programs under the Plan to permit selected Grantees the opportunity to
elect to defer receipt of consideration upon exercise of an Award,
satisfaction of performance criteria, or other event that absent the
election would entitle the Grantee to payment or receipt of Shares or
other consideration under an Award. The Administrator may establish the
election procedures, the timing of such elections, the mechanisms for
payments of, and accrual of interest or other earnings, if any, on
amounts, Shares or other consideration so deferred, and such other
terms,
conditions, rules and procedures that the Administrator deems
advisable for the administration of any such deferral program.
f) Award Exchange Programs. The Administrator may establish one or more
programs under the Plan to permit selected Grantees to exchange an
Award under the Plan for one or more other types of Awards under the
Plan on such terms and conditions as determined by the Administrator
from time to time.
g) Separate Programs. The Administrator may establish one or more separate
programs under the Plan for the purpose of issuing particular forms of
Awards to one or more classes of Grantees on such terms and conditions
as determined by the Administrator from time to time.
h) Individual Option and SAR Limit. The maximum number of Shares with
respect to which Options and SARs may be granted to any Employee in any
fiscal year of the Company shall be Six Hundred Thousand (600,000)
Shares. The foregoing limitation shall be adjusted proportionately in
connection with any change in the Company's capitalization pursuant to
Section 10, below. To the extent required by Section 162(m) of the Code
or the regulations thereunder, in applying the foregoing limitation
with respect to an Employee, if any Option or SAR is canceled, the
canceled Option or SAR shall continue to count against the maximum
number of Shares with respect to which Options and SARs may be granted
to the Employee. For this purpose, the repricing of an Option (or in
the case of a SAR, the base amount on which the stock appreciation is
calculated is reduced to reflect a reduction in the Fair Market Value
of the Common Stock) shall be treated as the cancellation of the
existing Option or SAR and the grant of a new Option or SAR.
i) Early Exercise. The Award Agreement may, but need not, include a
provision whereby the Grantee may elect at any time while an Employee,
Director or Consultant to exercise any part or all of the Award prior
to full vesting of the Award. Any unvested Shares received pursuant to
such exercise may be subject to a repurchase right in favor of the
Company or a Related Entity or to any other restriction the
Administrator determines to be appropriate.
j) Term of Award. The term of each Award shall be the term stated in the
Award Agreement, provided, however, that the term of an Incentive Stock
Option shall be no more than ten (10) years from the date of grant
thereof. However, in the case of an Incentive Stock Option granted to a
Grantee who, at the time the Option is granted, owns stock representing
more than ten percent (10%) of the voting power of all classes of stock
of the Company or any Parent or Subsidiary, the term of the Incentive
Stock Option shall be five (5) years from the date of grant thereof or
such shorter term as may be provided in the Award Agreement.
k) Transferability of Awards. Incentive Stock Options may not be sold,
pledged, assigned, hypothecated, transferred, or disposed of in any
manner other than by will or by the laws of descent or distribution and
may be exercised, during the lifetime of the Grantee, only by the
Grantee; provided, however, that the Grantee may designate a
beneficiary of the Grantee's Incentive Stock Option in the event of the
Grantee's death on a beneficiary designation form provided by the
Administrator. Other Awards shall be transferable to the extent
provided in the Award Agreement.
l) Time of Granting Awards. The date of grant of an Award shall for all
purposes be the date on which the Administrator makes the
determination to grant such Award, or such other date as is
determined by the Administrator. Notice of the grant determination
shall be given to each Employee, Director or Consultant to whom an
Award is so granted within a reasonable time after the date of such
grant.
7) Award Exercise or Purchase Price, Consideration, Taxes and Reload Options.
a) Exercise or Purchase Price. The exercise or purchase price, if any, for
an Award shall be as follows:
i) In the case of an Incentive Stock Option:
(A) granted to an Employee who, at the time of the grant of such
Incentive Stock Option owns stock representing more than ten
percent (10%) of the voting power of all classes of stock of
the Company or any Parent or Subsidiary, the per Share
exercise price shall be not less than one hundred ten percent
(110%) of the Fair Market Value per Share on the date of
grant; or
(B) granted to any Employee other than an Employee described in
the preceding paragraph, the per Share exercise price shall be
not less than one hundred percent (100%) of the Fair Market
Value per Share on the date of grant.
i) In the case of a Non-Qualified Stock Option, the per Share
exercise price shall be not less than one hundred percent (100%)
of the Fair Market Value per Share on the date of grant unless
otherwise determined by the Administrator.
ii) In the case of Awards intended to qualify as Performance-Based
Compensation, the exercise or purchase price, if any, shall be not
less than one hundred percent (100%) of the Fair Market Value per
Share on the date of grant.
iii) In the case of other Awards, such price as is determined by the
Administrator.
iv) Notwithstanding the foregoing provisions of this Section 7(a),
in the case of an Award issued pursuant to Section 6(d), above,
the exercise or purchase price for the Award shall be determined
in accordance with the principles of Section 424(a) of the Code.
b) Consideration. Subject to Applicable Laws, the consideration to be paid
for the Shares to be issued upon exercise or purchase of an Award
including the method of payment, shall be determined by the
Administrator (and, in the case of an Incentive Stock Option, shall be
determined at the time of grant). In addition to any other types of
consideration the Administrator may determine, the Administrator is
authorized to accept as consideration for Shares issued under the Plan
the following, provided that the portion of the consideration equal to
the par value of the Shares must be paid in cash or other legal
consideration permitted by the Delaware General Corporation Law:
i) cash;
ii) check;
iii) delivery of Grantee's promissory note with such recourse, interest,
security, and redemption provisions as the Administrator
determines as appropriate;
iv) surrender of Shares or delivery of a properly executed form of
attestation of ownership of Shares as the Administrator may
require (including withholding of Shares otherwise deliverable
upon exercise of the Award) which have a Fair Market Value on the
date of surrender or attestation equal to the aggregate exercise
price of the Shares as to which said Award shall be exercised (but
only to the extent that such exercise of the Award would not
result in an accounting compensation charge with respect to the
Shares used to pay the exercise price unless otherwise determined
by the Administrator);
v) with respect to Options, payment through a broker-dealer sale and
remittance procedure pursuant to which the Grantee (A) shall
provide written instructions to a Company designated brokerage
firm to effect the immediate sale of some or all of the purchased
Shares and remit to the Company, out of the sale proceeds
available on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased Shares and (B)
shall provide written directives to the Company to deliver the
certificates for the purchased Shares directly to such brokerage
firm in order to complete the sale transaction; or
vi) any combination of the foregoing methods of payment.
c) Taxes. No Shares shall be delivered under the Plan to any Grantee or
other person until such Grantee or other person has made arrangements
acceptable to the Administrator for the satisfaction of any foreign,
federal, state, or local income and employment tax withholding
obligations, including, without limitation, obligations incident to the
receipt of Shares or the disqualifying disposition of Shares received
on exercise of an Incentive Stock Option. Upon exercise of an Award,
the Company shall withhold or collect from Grantee an amount sufficient
to satisfy such tax obligations.
d) Reload Options. In the event the exercise price or tax withholding of
an Option is satisfied by the Company or the Grantee's employer
withholding Shares otherwise deliverable to the Grantee, the
Administrator may issue the Grantee an additional Option, with terms
identical to the Award Agreement under which the Option was exercised,
but at an exercise price as determined by the Administrator in
accordance with the Plan.
8) Exercise of Award.
a) Procedure for Exercise; Rights as a Stockholder.
i) Any Award granted hereunder shall be exercisable at such times
and under such conditions as determined by the Administrator under
the terms of the Plan and specified in the Award Agreement.
ii) An Award shall be deemed to be exercised when written notice of
such exercise has been given to the Company in accordance with the
terms of the Award by the person
entitled to exercise the Award and full payment for the Shares
with respect to which the Award is exercised, including, to the
extent selected, use of the broker-dealer sale and remittance
procedure to pay the purchase price as provided in Section 7(b)
(v). Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of
the Company) of the stock certificate evidencing such Shares, no
right to vote or receive dividends or any other rights as a
stockholder shall exist with respect to Shares subject to an
Award, notwithstanding the exercise of an Option or other Award.
The Company shall issue (or cause to be issued) such stock
certificate promptly upon exercise of the Award. No adjustment
will be made for a dividend or other right for which the record
date is prior to the date the stock certificate is issued, except
as provided in the Award Agreement or Section 10, below.
b) Exercise of Award Following Termination of Continuous Service.
i) An Award may not be exercised after the termination date of such
Award set forth in the Award Agreement and may be exercised
following the termination of a Grantee's Continuous Service only
to the extent provided in the Award Agreement.
ii) Where the Award Agreement permits a Grantee to exercise an Award
following the termination of the Grantee's Continuous Service for
a specified period, the Award shall terminate to the extent not
exercised on the last day of the specified period or the last day
of the original term of the Award, whichever occurs first.
iii) Any Award designated as an Incentive Stock Option to the extent
not exercised within the time permitted by law for the exercise of
Incentive Stock Options following the termination of a Grantee's
Continuous Service shall convert automatically to a Non-Qualified
Stock Option and thereafter shall be exercisable as such to the
extent exercisable by its terms for the period specified in the
Award Agreement.
c) Buyout Provisions. The Administrator may at any time offer to buy out
for a payment in cash or Shares, an Award previously granted, based on
such terms and conditions as the Administrator shall establish and
communicate to the Grantee at the time that such offer is made.
9) Conditions Upon Issuance of Shares.
a) Shares shall not be issued pursuant to the exercise of an Award unless
the exercise of such Award and the issuance and delivery of such Shares
pursuant thereto shall comply with all Applicable Laws, and shall be
further subject to the approval of counsel for the Company with respect
to such compliance.
b) 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 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 by any Applicable Laws.
10) Adjustments Upon Changes in Capitalization. Subject to any required action
by the shareholders of the Company, the number of Shares covered by each
outstanding Award, and the number of
Shares which have been authorized for issuance under the Plan but as to
which no Awards have yet been granted or which have been returned to the
Plan, the exercise or purchase price of each such outstanding Award, as
well as any other terms that the Administrator determines require
adjustment shall be proportionately adjusted for (i) any increase or
decrease in the number of issued Shares resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Shares, (ii) any other increase or decrease in the number of issued Shares
effected without receipt of consideration by the Company, or (iii) as the
Administrator may determine in its discretion, any other transaction with
respect to Common Stock to which Section 424(a) of the Code applies;
provided, however that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Administrator and its
determination shall be final, binding and conclusive. Except as the
Administrator determines, no issuance by the Company of shares of stock of
any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason hereof shall be made with respect
to, the number or price of Shares subject to an Award.
11) Corporate Transactions/Changes in Control/Related Entity Dispositions.
Except as may be provided in an Award Agreement:
a) The Administrator shall have the authority, exercisable either in
advance of any actual or anticipated Corporate Transaction, Change in
Control or Related Entity Disposition or at the time of an actual
Corporate Transaction, Change in Control or Related Entity Disposition
and exercisable at the time of the grant of an Award under the Plan or
any time while an Award remains outstanding, to provide for the full
automatic vesting and exercisability of one or more outstanding
unvested Awards under the Plan and the release from restrictions on
transfer and repurchase or forfeiture rights of such Awards in
connection with a Corporate Transaction, Change in Control or Related
Entity Disposition, on such terms and conditions as the Administrator
may specify. The Administrator also shall have the authority to
condition any such Award vesting and exercisability or release from
such limitations upon the subsequent termination of the Continuous
Service of the Grantee within a specified period following the
effective date of the Corporate Transaction, Change in Control or
Related Entity Disposition. The Administrator may provide that any
Awards so vested or released from such limitations in connection with a
Change in Control or Subsidiary Disposition, shall remain fully
exercisable until the expiration or sooner termination of the Award.
Effective upon the consummation of a Corporate Transaction, all
outstanding Awards under the Plan shall terminate unless assumed by the
successor company or its Parent. The Company will use reasonable
efforts to achieve such assumption as the Administrator deems
appropriate.
b) in connection with a Corporate Transaction, Change in Control or
Related Entity Disposition shall remain exercisable as an Incentive
Stock Option under the Code only to the extent the $100,000 dollar
limitation of Section 422(d) of the Code is not exceeded. To the extent
such dollar limitation is exceeded, the accelerated excess portion of
such Option shall be exercisable as a Non-Qualified Stock Option.
12) Effective Date and Term of Plan. The Plan shall become effective upon the
latest to occur of (i) its adoption by the Board, (ii) its approval by the
stockholders of the Company or (iii) the Registration Date. It shall
continue in effect for a term of ten (10) years unless sooner
terminated. Subject to Section 16, below, and Applicable Laws, Awards may
be granted under the Plan upon its becoming effective.
13) Amendment, Suspension or Termination of the Plan.
a) The Board may at any time amend, suspend or terminate the Plan. To the
extent necessary to comply with Applicable Laws, the Company shall
obtain stockholder approval of any Plan amendment in such a manner and
to such a degree as required.
b) No Award may be granted during any suspension of the Plan or after
termination of the Plan.
c) Any amendment, suspension or termination of the Plan (including
termination of the Plan under Section 12, above) shall not affect
Awards already granted, and such Awards shall remain in full force and
effect as if the Plan had not been amended, suspended or terminated,
unless mutually agreed otherwise between the Grantee and the
Administrator, which agreement must be in writing and signed by the
Grantee and the Company.
14) Reservation of Shares.
a) The Company, during the term of the Plan, will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy
the requirements of the Plan.
b) 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.
15) No Effect on Terms of Employment/Consulting Relationship. The Plan shall
not confer upon any Grantee any right with respect to the Grantee's
Continuous Service, nor shall it interfere in any way with his or her right
or the Company's right to terminate the Grantee's Continuous Service at any
time, with or without cause.
16) No Effect on Retirement and Other Benefit Plans. Except as specifically
provided in a retirement or other benefit plan of the Company or a Related
Entity, Awards shall not be deemed compensation for purposes of computing
benefits or contributions under any retirement plan of the Company or a
Related Entity, and shall not affect any benefits under any other benefit
plan of any kind or any benefit plan subsequently instituted under which
the availability or amount of benefits is related to level of compensation.
The Plan is not a "Retirement-Plan" or "Welfare Plan" under the Employee
Retirement Income Security Act of 1974, as amended.
Stockholder Approval. This Amended and Restated 1998 Stock Incentive Plan of
EarthWeb Inc. became effective when approved by the Company's stockholders on
May 31, 2000, after having been adopted by the Company's Board of Directors on
April 3, 2000, subject to stockholder approval.