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EXHIBIT 10.5
DBT ONLINE, INC. AMENDED & RESTATED STOCK OPTION PLAN
AS AMENDED THROUGH SEPTEMBER 26, 1997
The purpose of the Stock Option Plan (the "Plan") is to provide
designated officers, directors and employees of DBT Online, Inc. and its
subsidiaries (hereinafter collectively referred to as the "Company") and
consultants, independent contractors and principals of organizations involved
with the Company on significant projects ("Key Advisors") with the opportunity
to receive grants of nonqualified stock options or, in the case of officers or
other employees of the Company, incentive stock options or a combination of
each. The Company believes that the Plan will cause the participants to
contribute materially to the growth of the Company, thereby benefiting the
Company's shareholders and will align the economic interests of the participants
with those of the shareholders.
1. Administration
The Plan shall be administered and interpreted by a committee (the
"Committee") which shall consist of two or more persons appointed by the board
of directors of the Company (the "Board"), all of whom shall be "disinterested
persons" as defined under Rule 16b-3 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and "outside directors" as defined under Section
162(m) of the Internal Revenue Code of 1986, as amended (the "Code"). The
Committee shall have the sole discretion and authority to (i) determine the
individuals to whom options shall be granted under the Plan, (ii) determine the
type, size, exercise price and other terms and conditions of the options to be
granted to each such individual, (iii) determine the time when the options will
be granted and the duration of the exercise period, including the criteria for
exercisability and the acceleration of exercisability and (iv) deal with any
other matters arising under the Plan. The Committee shall have full power and
authority to administer and interpret the Plan, to make factual determinations
and to adopt or amend such rules, regulations, agreements and instruments for
implementing the Plan and for the conduct of its business as it deems necessary
or advisable, in its sole discretion. The Committee's interpretations of the
Plan and all determinations made by the Committee pursuant to the powers vested
in it hereunder shall be conclusive and binding on all persons having any
interests in the Plan or in any awards granted hereunder.
2. Stock Options
Incentives under the Plan shall consist of incentive stock options and
nonqualified stock options (hereinafter collectively referred to as "Stock
Options"). All Stock Options shall be subject to the terms and conditions set
forth herein and to those other terms and conditions consistent with this Plan
as the Committee deems appropriate and as are specified in writing by the
Committee to the recipient in an instrument evidencing the grant of the Stock
Option (the "Grant Letter"). The Committee shall approve the form and provisions
of each Grant Letter. Grants of Stock Options under the Plan need not be uniform
as among the officers, directors, employees or Key Advisors.
3. Shares Subject to the Plan
(a) Subject to the adjustment specified below, the aggregate number of
shares of common stock of the Company (the "Company Stock") that may be issued
or transferred under the Plan is 3,000,000 shares. Notwithstanding anything in
the Plan to the contrary, the maximum aggregate number of shares of the Company
Stock shall be subject to Stock Options granted under the Plan to any one
individual during any calendar year shall be 750,000 shares. The shares may be
authorized but unissued shares of Company Stock or reacquired shares of Company
Stock, including shares purchased by the Company on the open market for purposes
of the Plan. If and to the extent options granted under the Plan terminate,
expire, or are cancelled, forfeited, exchanged or surrendered without having
been exercised, the shares subject to such Stock Option shall again be available
for purposes of the Plan.
(b) If there is any change in the number or kind of shares of Company
Stock outstanding by reason of a stock dividend, a recapitalization, stock
split, or combination or exchange of shares, or merger, reorganization or
consolidation in which the Company is the surviving corporation,
reclassification or change in par value or by reason of any other extraordinary
or unusual events affecting the outstanding Company Stock as a class without the
Company's receipt of consideration, or if the value of outstanding shares of
Company Stock is substantially reduced due to the Company's payment of an
extraordinary dividend or distribution, the maximum number of shares of Company
Stock available for Stock Options, the maximum number of shares of Company Stock
that may be subject to Stock Options granted to any one individual in any
calendar year, the number of shares covered by outstanding Stock Options, and
the price per share or the applicable market value of such Stock Options and the
other terms and conditions of the Stock Options, as the Committee may deem
necessary or desirable, shall be proportionately adjusted by the Committee to
reflect any increase or decrease in the number or kind of issued shares of
Company Stock to preclude the enlargement or dilution of rights and benefits
under such Stock Options; provided, however, that any fractional shares
resulting from such adjustment shall be eliminated. The adjustments determined
by the Committee shall be final, binding and conclusive.
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4. Eligibility for Participation
Officers, directors and employees of the Company and Key Advisors
designated by the Committee (without participation by any Committee member in
his designation) shall be eligible to participate in the Plan (hereinafter
referred to individually as the "Participant" and collectively as the
"Participants"). The Committee shall select the individuals to receive Stock
Options (the "Optionees") from among the Participants and determine the number
of shares of Company Stock subject to a particular Stock Option in such manner
as the Committee determines, provided, however, that no Committee member shall
participate in any matter specifically pertaining to him. Nothing contained in
this Plan shall be construed to (i) limit the right of the Committee to grant
Stock Options under the Plan in connection with the acquisition, by purchase,
lease, merger, consolidation or otherwise, of the business or assets of any
corporation, firm or association, including options granted to employees thereof
who become employees of the Company, or for other proper corporate purpose or
(ii) limit the right of the Company to grant stock options or make other awards
outside of this Plan.
5. Stock Option Terms
(a) Number of Shares. The Committee, in its sole discretion, shall
determine the number of shares of Company Stock that shall be subject to each
Stock Option grant.
(b) Type of Option. The Committee, in its sole discretion, may grant
options that are intended to qualify as "incentive stock options" within the
meaning of section 422 of the Code ("Incentive Stock Options") or stock options
which are not intended to so qualify ("Nonqualified Stock Options") or any
combination of Incentive Stock Options and Nonqualified Stock Options, all in
accordance with the terms and conditions set forth herein.
(c) Purchase Price. The purchase price of Company Stock subject to a
Stock Option shall be determined by the Committee, and may be equal to, greater
than or less than the Fair Market Value (as defined below) of a share of such
Stock on the date such Stock Option is granted; provided, however, that the
purchase price of Company Stock subject to an Incentive Stock Option shall be
equal to or greater than the Fair Market Value of a share of such Stock on the
date such Stock Option is granted and the purchase price of Company Stock
subject to a Nonqualified Stock Option shall not be less than 85% of the Fair
Market Value (as defined below) of a share of Company Stock on the date such
Stock Option is granted. During such time that the Company Stock is not listed
upon an established stock exchange or traded in the over-the-counter-market, the
"Fair Market Value" of Company Stock shall be determined by the Committee at
least annually after taking into account such factors as it shall deem
appropriate. If the Company Stock is listed upon an established stock exchange
or other recognized market source, as determined by the Committee, "Fair Market
Value" on any date of reference shall be the closing price of a share of Company
Stock on the principal exchange or other recognized market source, as determined
by the Committee on such date, or if there is no sale on such date, then the
closing price of a share of Company Stock on the last previous day on which a
sale is reported.
(d) Option Term. The Committee shall determine the term of each Stock
Option. The term of any Stock Option shall not exceed ten years from the date of
grant.
(e) Exercisability of Options. Stock Options shall become exercisable
in accordance with the terms and conditions determined by the Committee, in its
sole discretion and specified in the Grant Letter. The Committee, in its sole
discretion, may accelerate the exercisability of any or all outstanding Stock
Options at any time for any reason.
(f) Manner of Exercise. An Optionee may exercise a Stock Option which
has become exercisable, in whole or in part, by delivering a notice of exercise
to the Committee with accompanying payment of the purchase price in accordance
with Subsection (f) below. Such notice may instruct the Company to deliver
shares of Company Stock due upon the exercise of the Stock Option to any
registered broker or dealer designated by the Committee ("Designated Broker") in
lieu of delivery to the Optionee. Such instructions must designate the account
into which the shares are to be deposited. The Optionee may tender a notice of
exercise, which has been properly executed by the Optionee, and the
aforementioned delivery instructions to any Designated Broker.
(g) Termination of Employment or Services.
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(1) Except as provided in (2) or (3) below, in the event the
Optionee ceases to be an employee or director of the Company or Key Advisor, any
Stock Option which is otherwise exercisable by the Optionee shall automatically
terminate ninety days (or such other time as may be specified in the Grant
Letter) after the date on which the Optionee ceases to be an employee or
director of the Company or a Key Advisor, but in no event later than the date of
expiration of the term of such Stock Option.
(2) In the event the Optionee ceases to be an employee or
director of the Company or Key Advisor on account of a termination for cause (as
determined in the sole judgement of the Board or its delegate), any Stock Option
held by the Optionee shall automatically terminate as of the date the Optionee
ceases to be an employee or director of the Company or a Key Advisor (except as
the Committee may otherwise provide in the Grant Letter), but in no event later
than the date of expiration of the term of such Stock Option.
(3) In the event of the death of the Optionee or in the event
the Optionee ceases to be an employee or director of the Company or Key Advisor
on account of the Optionee having become disabled, within the meaning of Section
22(e) of the Code, any Stock Option which was otherwise exercisable by the
Optionee on the date of death or such disability may be exercised by the
Optionee's personal representative or the Optionee, as the case may be, at any
time prior to the expiration of one year (or such other time as may be specified
in the Grant Letter) from the date of death or the date such Optionee ceases to
be an employee or director of the Company or a Key Advisor, on account of such
disability, but in no event later than the date of expiration of the term of the
Stock Option.
(h) Satisfaction of Purchase Price. The Optionee shall pay the purchase
price specified in the Grant Letter in (i) cash, (ii) with the approval of the
Committee, by delivering shares of Company Stock already owned by the Optionee
for the period necessary to avoid a charge to the Company's earnings for
financial reporting purposes and having a Fair Market Value on the date of
exercise equal to the purchase price, or (iii) through any combination of (i)
cash and (ii) shares. The Optionee shall pay the purchase price and the amount
of any federal, state or local withholding tax due, if any, at the time of
exercise. Shares of Company Stock shall not be issued or transferred upon
exercise of a Stock Option until the purchase price is fully paid and any
required withholding is made.
(i) Limits on Incentive Stock Options. Each Incentive Stock Option
shall provide that, to the extent that the aggregate Fair Market Value of the
Company Stock (on the date of the grant with respect to which Incentive Stock
Options are exercisable for the first time by an Optionee during any calendar
year under the Plan or any other stock option plan of the Company exceeds
$100,000, then such Stock Option as to the excess shall be treated as a
Nonqualified Stock Option. An Incentive Stock Options shall not be granted to
any Participant who is not an employee of the Company or any "subsidiary"
(within the meaning of Section 424(f) of the Code). An Incentive Stock Option
shall not be granted to any employee who, at the time of grant, owns stock
possessing more than 10 percent of the total combined voting power of all
classes of stock of the Company or any "parent" or "subsidiary" of the Company
within the meaning of Section 424(f) of the Code, unless the purchase price per
share is not less than 110% of the Fair Market Value of Company Stock on the
date of grant and the term of the Option is not more than five years from the
date of grant.
6. Transferability of Stock Options
Only the Optionee or his or her authorized legal representative may
exercise rights under a Stock Option. Rights under an Incentive Stock Option may
not be transferred other than by will or by the laws of descent and
distribution. Rights under a Nonqualified Stock Option may not be transferred
except (i) by will or by the laws of decent and distribution, (ii) to the
Optionee's spouse or a lineal descendant or to one or more trusts for the
benefit of such family members or to partnerships in which such family members
are the only partners provided that the Optionee receives no consideration for
such transfer and the Grant Letter relating to such Stock Options continues to
be subject to the same terms and conditions that were applicable to such Stock
Option immediately prior to such transfer, and (iii) if permitted by Rule 16b-3
of the Exchange Act and if permitted in any specific case by the Committee, in
its sole discretion, pursuant to a qualified domestic relations order as defined
under the Code or Title I of the Employee Retirement Income Security Act of
1974, as amended or the regulations thereunder. When an Optionee dies, the
personal representative or other person entitled to succeed to the rights of the
Optionee ("Successor Optionee") may exercise such rights. A Successor Optionee
must furnish proof satisfactory to the Company of his or her right to receive
the Stock Option under the Optionee's will or under the applicable laws of
descent and distribution.
7. Change of Control of the Company
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As used herein, a "Change of Control" shall be deemed to have occurred
if:
(a) Any "person" (as such term is used in Sections 13(d) and 14(d) of
the Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
representing 40% or more of the voting power of the then outstanding securities
of the Company;
(b) the stockholders of the Company approve an agreement providing for
(i) the merger or consolidation of the Company with another corporation where
the stockholders of the Company, immediately prior to the merger or
consolidation, would not beneficially own, immediately after the merger or
consolidation, shares entitling such stockholders to 50% or more of all votes
(without consideration of the rights of any class of stock to elect directors by
a separate class vote) to which all stockholders of the surviving corporation
would be entitled in the election of directors or where the members of the
Board, immediately prior to the merger or consolidation, would not, immediately
after the merger or consolidation, constitute a majority of the Board of the
surviving corporation or (ii) the sale or other disposition of all or
substantially all the assets of the Company, or a liquidation, dissolution or
statutory exchange of the Company;
(c) Any person has commenced, or announced an intention to commence, a
tender offer or exchange offer for 40% or more of the voting power of the then
outstanding securities of the Company; or
(d) During any period of two consecutive calendar years there is a
change of 25% or more in the composition of the Board in office at the beginning
of the period except for changes approved by at least two-thirds of the
directors then in office who were directors at the beginning of the period.
8. Consequences of a Change of Control
(a) Upon a Change of Control (i) the Company shall provide each Grantee
with outstanding Grants written notice of such Change of Control and (ii) all
outstanding Stock Options shall automatically accelerate and become fully
exercisable.
(b) In addition, upon a Change of Control described in Section 7(b)(i)
where the Company is not the surviving corporation (or survives only as a
subsidiary of another corporation), all outstanding Stock Options shall be
assumed or replaced with comparable options or rights by the surviving
corporation.
(c) Notwithstanding the foregoing, in the event of a Change of Control,
the Committee may (i) require that Optionees surrender their outstanding Stock
Options in exchange for a payment by the Company, in cash or Company Stock as
determined by the Committee, in an amount equal to the amount by which the then
Fair Market Value of the shares of Company Stock subject to the Optionee's
outstanding Stock Options exceeds the option purchase price of the Stock Options
and (ii) terminate any or all outstanding Stock Options at such time as the
Committee deems appropriate. Such surrender shall take place as of the date of
the Change of Control or such other date as the Committee may specify, and, in
the case of a Stock Option held by an Optionee who is subject to Section 16(b)
of the Exchange Act, any such surrender or payment shall be made on such date as
the Committee shall determine consistent with Rule 16b-3 under the Exchange Act.
The Committee shall not have the right to take the actions described in this
Subsection (c) if such right would make the applicable Change of Control
ineligible for pooling of interest accounting treatment under APB No. 16 or make
such Change of Control ineligible for desired tax treatment with respect to such
Change of Control and, but for this provision, the Change of Control would
otherwise qualify for and the Company intends to use such treatment.
9. Amendment and Termination of the Plan
(a) Amendment. The Board may amend or terminate the Plan at any time;
provided, however, that any amendment that increases the aggregate (or
individual limit for any single Optionee) number of shares of Company Stock that
may be issued or transferred under the Plan (other than by operation of Section
3(b)), or modifies the requirements as to eligibility for participation in the
Plan, shall be subject to approval by the shareholders of the Company and
provided, further, that the Board shall not amend the Plan without shareholder
approval if such approval is required by Rule 16b-3 of the Exchange Act or
Section 162(m) of the Code.
(b) Termination of Plan. The Plan shall terminate on the day
immediately preceding the tenth anniversary of its effective date unless
terminated earlier by the Board or unless extended by the Board with the
approval of the shareholders.
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(c) Termination and Amendment of Outstanding Stock Options. A
termination or amendment of the Plan that occurs after a Stock Option is granted
shall not materially impair the rights of an Optionee unless the Optionee
consents or unless the Committee acts under Section 17(b) hereof. The
termination of the Plan shall not impair the power and authority of the
Committee with respect to an outstanding Stock Option. Whether or not the Plan
has terminated, an outstanding Stock Option may be terminated or amended under
Section 17(b) hereof or may be amended by agreement of the Company and the
Optionee consistent with the Plan.
10. Funding of the Plan
This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Stock Options under this Plan.
11. Rights of Optionees
Nothing in this Plan shall entitle any Optionee or other person to any
claim or right to be granted a Stock Option under this Plan. Neither this Plan
nor any action taken hereunder shall be construed as giving any Optionee any
rights to be retained by or in the employ of the Company or any other employment
rights.
12. Withholding of Taxes
The Optionee or other person receiving such shares in connection with
the exercise of any Stock Option hereunder shall be required to pay to the
Company the amount of any federal, state or local taxes which the Company is
required to withhold with respect to the exercise of such Stock Options. The
Company further shall have the right to deduct from other wages paid to the
employee by the Company the amount of any withholding due with respect to such
Stock Options.
13. Agreements with Optionees
Each Stock Option made under this Plan shall be evidenced by a Grant
Letter containing such terms and conditions as the Committee shall approve.
14. Requirements for Issuance of Shares
No Company Stock shall be issued or transferred upon exercise of any
Stock Option hereunder unless and until all legal requirements applicable to the
issuance or transfer of such Company Stock have been complied with to the
satisfaction of the Committee. The Committee shall have the right to condition
any Stock Option granted to any Optionee hereunder on such Optionee's
undertaking in writing to comply with such restrictions on his subsequent
disposition of such shares of Company Stock as the Committee shall deem
necessary or advisable as a result of any applicable law, regulation or official
interpretation thereof, and certificates representing such shares may be
legended to reflect any such restrictions.
15. Headings
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the Section shall
control.
16. Effective Date of the Plan
Subject to the approval of the Company's shareholders, this Plan shall
be effective as of September 8, 1995.
17. Miscellaneous
(a) Substitute Stock Options. The Committee may grant a Stock Option to
an employee of another corporation who becomes a Participant by reason of a
corporate merger, consolidation, acquisition of stock or property,
reorganization or liquidation involving the Company or any of its subsidiaries
in substitution for a stock option granted by such corporation ("Substituted
Stock Options"). The terms and conditions of the substitute Stock Option may
vary from the terms and conditions required by the Plan and from those of the
Substituted Stock Options. The Committee shall prescribe the provisions of the
substitute Stock Options.
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(b) Compliance with Law. The Plan, the exercise of Stock Options and
the obligations of the Company to issue or transfer shares of Company Stock
under Stock Options shall be subject to all applicable laws and to approvals by
any governmental or regulatory agency as may be required. With respect to a
person subject to Section 16 of the Exchange Act, it is the intent of the
Company that the Plan and all transactions under the Plan comply with all
applicable provisions of Rule 16b-3 or its successors under the Exchange Act.
The Committee may revoke any Stock Option if it is contrary to law or modify a
Stock Option to bring it into compliance with any valid and mandatory government
regulation. The Committee may also adopt rules regarding the withholding of
taxes on payments to Optionees. The Committee may, in its sole discretion, agree
to limit its authority under this Section.
(c) Ownership of Stock. Except as otherwise provided by the Committee,
an Optionee or Successor Optionee shall have no rights as a shareholder with
respect to any shares of Company Stock covered by a Stock Option until the
shares are issued or transferred to the Optionee or Successor Optionee on the
stock transfer records of the Company.
(d) Governing Law. The validity, construction, interpretation and
effect of the Plan and Grant Letters issued under the Plan shall be governed
exclusively by and determined in accordance with the laws of the Commonwealth of
Pennsylvania.