EXHIBIT 10.1
INFOSPACE.COM, INC.
RESTATED 1996 FLEXIBLE STOCK INCENTIVE PLAN
1. Establishment, Purpose, and Definitions.
(a) There is hereby adopted the Restated 1996 Flexible Stock Incentive
Plan (the "Plan") of InfoSpace.com, Inc., a Delaware corporation (the
"Company").
(b) The purpose of the Plan is to provide a means whereby eligible
individuals (as defined in paragraph 4, below) can acquire Common
Stock of the Company (the "Stock"). The Plan provides employees
(including officers and directors who are employees) of the Company
and of its Affiliates an opportunity to purchase shares of Stock
pursuant to options which may qualify as incentive stock options
(referred to as "incentive stock options") under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), and employees,
officers, directors, independent contractors, and consultants of the
Company and of its Affiliates an opportunity to purchase shares of
Stock pursuant to options which are not described in Section 422 or
423 of the Code (referred to as "nonqualified stock options"). The
Plan also provides for the sale or bonus of Stock to eligible
individuals in connection with the performance of services for the
Company or its Affiliates. Finally, the Plan authorizes the grant of
stock appreciation rights ("SARs"), either separately or in tandem
with stock options, entitling holders to cash compensation measured by
appreciation in the value of the Stock.
(c) The term "Affiliates" as used in the Plan means parent or subsidiary
corporations, as defined in Sections 424(e) and (f) of the Code (but
substituting "the Company" for "employer corporation"), including
parents or subsidiaries which become such after adoption of the Plan.
2. Administration of the Plan.
(a) The Plan shall be administered by the Board of Directors of the
Company (the "Board") or a committee or committees (which term
includes subcommittees) appointed by, and consisting of one or more
members of, the Board (the "Plan Administrator"). If and so long as
the Common Stock is registered under Section 12(b) or 12(g) of the
Exchange Act, the Board shall consider in selecting the Plan
Administrator and the membership of any committee acting as Plan
Administrator, with respect to any persons subject or likely to become
subject to Section 16 of the Exchange Act, the provisions regarding
(i) "outside directors" as contemplated by Section 162(m) of the Code
and
(ii) "nonemployee directors" as contemplated by Rule 16b-3 under the
Exchange Act. The Board may delegate the responsibility for
administering the Plan with respect to designated classes of eligible
Participants to different committees consisting of one or more members
of the Board, subject to such limitations as the Board or the Plan
Administrator deems appropriate. Committee members shall serve for
such term as the Board may determine, subject to removal by the Board
at any time.
(b) The Plan Administrator shall determine which eligible individuals (as
defined in paragraph 4, below) shall be granted options under the
Plan, the timing of such grants, the terms thereof (including any
restrictions on the Stock), and the number of shares subject to such
options.
(c) The Plan Administrator may amend the terms of any outstanding option
granted under this Plan, but any amendment which would adversely
affect the Optionee's rights under an outstanding option shall not be
made without the Optionee's written consent. The Plan Administrator
may, with the Optionee's written consent, cancel any outstanding stock
option or accept any outstanding stock option in exchange for a new
option. Notwithstanding the foregoing, any change or adjustment to an
incentive stock option shall not, without the Optionee's written
consent, be made in a manner so as to constitute a "modification" that
would cause such incentive stock option to fail to continue to qualify
as an incentive stock option.
(d) The Plan Administrator shall also determine which eligible individuals
(as defined in paragraph 4, below) shall be issued Stock or SARs under
the Plan, the timing of such grants, the terms thereof (including any
restrictions), and the number of shares or SARs to be granted. The
Stock shall be issued for such consideration (if any) as the Plan
Administrator deems appropriate. Stock issued subject to restrictions
shall be evidenced by a written agreement (the "Restricted Stock
Purchase Agreement" or the "Restricted Stock Bonus Agreement"). The
Plan Administrator may amend any Restricted Stock Purchase Agreement
or Restricted Stock Bonus Agreement, but any amendment which would
adversely affect the stockholder's rights to the Stock shall not be
made without his or her written consent.
(e) The Plan Administrator shall have the sole authority, in its absolute
discretion to adopt, amend, and rescind such rules and regulations as,
in its opinion, may be advisable for the administration of the Plan,
to construe and interpret the Plan, the rules and the regulations, and
the instruments evidencing options or Stock granted under the Plan and
to make all other determinations deemed necessary or advisable for the
administration of the Plan. All decisions,
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determinations, and interpretations of the Plan Administrator shall be
binding on all participants.
3. Stock Subject to the Plan.
(a) An aggregate of not more than Ten Million (10,000,000) shares of Stock
shall be available for the grant of stock options or the issuance of
Stock under the Plan 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 (i) 2,000,000 shares of Stock, (ii) three percent (3%) of the
Company's outstanding shares of Stock on the last day of the preceding
fiscal year, and (iii) a lesser amount determined by the Board of
Directors. If an option is surrendered (except surrender for shares of
Stock) or for any other reason ceases to be exercisable in whole or in
part, the shares which were subject to such option but as to which the
option had not been exercised shall continue to be available under the
Plan. Any Stock which is retained by the Company upon exercise of an
option in order to satisfy the exercise price for such option or any
withholding taxes due with respect to such option exercise shall be
treated as issued to the Optionee and will thereafter not be available
under the Plan.
(b) If there is any change in the Stock subject to the Plan, an Option
Agreement, a Restricted Stock Purchase Agreement, a Restricted Stock
Bonus Agreement, or a SAR Agreement through merger, consolidation,
reorganization, recapitalization, reincorporation, stock split, stock
dividend, or other change in the capital structure of the Company,
appropriate adjustments shall be made by the Plan Administrator in
order to preserve but not to increase the benefits to the individual,
including adjustments to the aggregate number, kind and price per
share of shares subject to the Plan, an Option Agreement, a Restricted
Stock Purchase Agreement, a Restricted Stock Bonus Agreement, or a SAR
Agreement.
4. Eligible Individuals. Individuals who shall be eligible to have granted to
them the options, Stock or SARs provided for by the Plan shall be such
employees, officers, directors, independent contractors and consultants of
the Company or an Affiliate as the Plan Administrator, in its discretion,
shall designate from time to time. Notwithstanding the foregoing, only
employees of the Company or an Affiliate (including officers and directors
who are bona fide employees) shall be eligible to receive incentive stock
options.
5. The Option Price.
(a) The exercise price of the Stock covered by each incentive stock option
shall be not less than the per share fair market value of such Stock
on the date the option is granted. The exercise price of the Stock
covered by each
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nonqualified stock option shall be as determined by the Plan
Administrator. In the case of a nonqualified stock option intended to
qualify as "performance-based compensation" within the meaning of
Section 162(m) of the Code, the per share exercise price of the Stock
shall be no less than 100% of the fair market value per share of the
Stock on the date of grant. Notwithstanding the foregoing, in the case
of an incentive stock option granted to a person possessing more than
ten percent of the combined voting power of the Company or an
Affiliate, the exercise price shall be not less than 110 percent of
the fair market value of the Stock on the date the option is granted.
The exercise price of an option shall be subject to adjustment to the
extent provided in paragraph 3(b), above.
(b) The fair market value shall be as established in good faith by the
Plan Administrator or (i) if the Stock is listed on the Nasdaq
National Market, the fair market value shall be the closing selling
price for the stock as reported by the Nasdaq National Market for a
single day or (ii) if the Stock is listed on the New York Stock
Exchange or the American Stock Exchange, the fair market value shall
be the closing selling price for the Stock as such price is officially
quoted in the composite tape of transactions on such exchange for a
single trading day. If there is no such reported price for the Stock
for the date in question, then such price on the last preceding date
for which such price exists shall be determinative of the fair market
value.
6. Terms and Conditions of Options.
(a) Each option granted pursuant to the Plan will be evidenced by a
written Stock Option Agreement executed by the Company and the person
to whom such option is granted.
(b) The Plan Administrator shall determine the term of each option granted
under the Plan; provided, however, that the term of an incentive stock
option shall not be for more than 10 years and that, in the case of an
incentive stock option granted to a person possessing more than ten
percent of the combined voting power of the Company or an Affiliate,
the term shall be for no more than five years.
(c) In the case of incentive stock options, the aggregate fair market
value (determined as of the time such option is granted) of the Stock
with respect to which incentive stock options are exercisable for the
first time by an eligible employee in any calendar year (under this
Plan and any other plans of the Company or its Affiliates) shall not
exceed $100,000. In the event the Optionee holds two or more such
options that become exercisable for the first time in the same
calendar year, such limitation shall be applied on the basis of the
order in which such options are granted.
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(d) The Stock Option Agreement may contain such other terms, provisions
and conditions not inconsistent with this Plan as may be determined by
the Plan Administrator. If an option, or any part thereof is intended
to qualify as an incentive stock option, the Stock Option Agreement
shall contain those terms and conditions which are necessary to so
qualify it.
(e) The following limitations shall apply to grants of stock options:
(i) No individual shall be granted, in any fiscal year of the
Company, stock options to purchase more than 4,000,000 shares
of Stock.
(ii) In connection with his or her initial service, an individual
may be granted stock options to purchase up to an additional
4,000,000 shares of Stock which shall not count against the
limit set forth in subsection (i) above.
(iii) The foregoing limitations shall be adjusted proportionately in
connection with any change in the Company's capitalization.
(iv) If a stock 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 15), the cancelled stock
option will be counted against the limits set forth in
subsections (i) and (ii) above. For this purpose, if the
exercise price of a stock option is reduced, the transaction
will be treated as a cancellation of the stock option and the
grant of a new stock option.
7. Terms and Conditions of Stock Purchases and Bonuses.
(a) Each sale or grant of stock pursuant to the Plan will be evidenced by
a written Restricted Stock Purchase Agreement or Restricted Stock
Bonus Agreement executed by the Company and the person to whom such
stock is sold or granted.
(b) The Restricted Stock Purchase Agreement or Restricted Stock Bonus
Agreement may contain such other terms, provisions and conditions
consistent with this Plan as may be determined by the Plan
Administrator, including not by way of limitation, restrictions on
transfer, forfeiture provisions, repurchase provisions and vesting
provisions. To the extent required by applicable law, any right of the
Company to repurchase stock granted pursuant to a restricted stock
purchase or restricted stock bonus at the original purchase price, if
the right is assignable, the assignee must pay the Company upon
assignment of the right cash equal to the difference between the
original price and fair value if the original purchase price is less
than fair value.
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(c) The purchase price of Stock sold hereunder pursuant to a Restricted
Stock Purchase Agreement shall be the price determined by the Plan
Administrator on the date the right to purchase Stock is granted;
provided, however that (i) such price shall not be less than 85% of
the per share fair market value of such Stock on the date the right to
purchase Stock is granted and (ii) to the extent required by
applicable law, in the case of any person who owns Company stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company, such price shall be 100% of the per
share fair market value of such Stock at the time the right to
purchase Stock is granted, or at the time the purchase is consummated.
8. Terms and Conditions of SARs. The Plan Administrator may, under such terms
and conditions as it deems appropriate, authorize the issuance of SARs
evidenced by a written SAR agreement (which, in the case of tandem options,
may be part of the option agreement to which the SAR relates) executed by
the Company and the person to whom such SAR is granted. The SAR agreement
may contain such terms, provisions and conditions consistent with this Plan
as may be determined by the Plan Administrator.
9. Use of Proceeds. Cash proceeds realized from the sale of Stock under the
Plan shall constitute general funds of the Company.
10. Amendment, Suspension, or Termination of the Plan.
(a) The Board may at any time amend, suspend or terminate the Plan as it
deems advisable; provided that such amendment, suspension or
termination complies with all applicable requirements of state and
federal law, including any applicable requirement that the Plan or an
amendment to the Plan be approved by the Company's stockholders, and
provided further that, except as provided in paragraph 3(b), above,
the Board shall in no event amend the Plan in the following respects
without the consent of stockholders then sufficient to approve the
Plan in the first instance:
(i) To increase the maximum number of shares subject to incentive
stock options issued under the Plan; or
(ii) To change the designation or class of persons eligible to
receive incentive stock options under the Plan.
(b) No option may be granted nor any Stock issued under the Plan during
any suspension or after the termination of the Plan, and no amendment,
suspension or termination of the Plan shall, without the affected
individual's consent, alter or impair any rights or obligations under
any option previously granted under the Plan. The Plan shall
terminate with respect to the grant of incentive stock
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options on April 10, 2006, unless previously terminated by the Board
pursuant to this paragraph 10.
11. The Plan Administrator shall establish and set forth in each instrument
that evidences an option whether the option will continue to be
exercisable, and the terms and conditions of such exercise, if an Optionee
ceases to be employed by, or to provide services to, the Company or an
Affiliate, which provisions may be waived or modified by the Plan
Administrator at any time.
12. Assignability. Each option granted pursuant to this Plan shall, during
Optionee's lifetime, be exercisable only by him, and the option shall not
be transferable by Optionee by operation of law or otherwise other than by
will or the laws of descent and distribution. Notwithstanding the
foregoing, and to the extent permitted by Section 422 of the Code, the Plan
Administrator, in its sole discretion, may permit such transfer, assignment
and exercisability and may permit an Optionee to designate a beneficiary
who may exercise the option after the Optionee's death; provided, however,
that any option so transferred or assigned shall be subject to all the same
terms and conditions contained in the instrument evidencing the option.
Stock subject to a Restricted Stock Purchase Agreement or a Restricted
Stock Bonus Agreement shall be transferable only as provided in such
Agreement.
13. Payment Upon Exercise of Options.
(a) Payment of the purchase price upon exercise of any option granted
under this Plan shall be made in cash, a certified check, bank draft,
postal or express money order payable to the order of the Company,
provided, however, that the Plan Administrator, in its sole
discretion, may permit an Optionee to pay the option price in whole or
in part (i) tendering (either actually or, if and so long as the Stock
is registered under Section 12(b) or 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), shares of Stock owned by
the Optionee for at least six months (or any shorter period necessary
to avoid a charge to the Company's earnings for financial reporting
purposes) on the day prior to the exercise date equal to the aggregate
option exercise price; (ii) if and so long as the stock is registered
under Section 12(b) or 12(g) of the Exchange Act, by delivery on a
form prescribed by the Plan Administrator of an irrevocable direction
to a securities broker approved by the Plan Administrator to sell
shares and deliver all or a portion of the proceeds to the Company in
payment for the Stock; (ii) by delivery of the Optionee's promissory
note with such full recourse, interest, security, and redemption
provisions as the Plan Administrator in its discretion determines
appropriate; or (iii) in any combination of the foregoing. The amount
of any promissory note delivered in connection with an incentive stock
option shall bear interest at a rate specified by the Plan
Administrator but in no case less than the rate required to avoid
imputation of interest (taking into account any
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exceptions to the imputed interest rules) for federal income tax
purposes. In addition, the Plan Administrator, in its sole discretion,
may authorize the surrender by an Optionee of all or part of an
unexercised option and authorize a payment in consideration thereof of
an amount equal to the difference between the aggregate fair market
value of the Stock subject to such option and the aggregate option
price of such Stock. In the Plan Administrator's discretion, such
payment may be made in cash, shares of Stock with a fair market value
on the date of surrender equal to the payment amount, or some
combination thereof. The purchase price for shares purchased under an
option may also be paid by such other consideration as the Plan
Administrator may permit.
(b) In the event that the exercise price is satisfied by the Plan
Administrator retaining from the shares of Stock otherwise to be
issued to Optionee shares of Stock having a value equal to the
exercise price, the Plan Administrator may issue Optionee an
additional option, with terms identical to this option agreement,
entitling Optionee to purchase additional Stock in an amount equal to
the number of shares so retained.
14. Withholding Taxes.
(a) No Stock shall be granted or sold under the Plan to any participant,
and no SAR may be exercised, until the participant has made
arrangements acceptable to the Plan Administrator for the satisfaction
of federal, state, and local income and social security tax
withholding obligations, including without limitation obligations
incident to the receipt of Stock under the Plan, the lapsing of
restrictions applicable to such Stock, the failure to satisfy the
conditions for treatment as incentive stock options under applicable
tax law, or the receipt of cash payments. Upon exercise of a stock
option or lapsing or restriction on stock issued under the Plan, the
Company may satisfy its withholding obligations by withholding from
the Optionee or requiring the stockholder to surrender shares of the
Company's Stock sufficient to satisfy federal, state, and local income
and social security tax withholding obligations.
(b) In the event that such withholding is satisfied by the Company or the
Optionee's employer retaining from the shares of Stock otherwise to be
issued to Optionee shares of Stock having a value equal to such
withholding tax, the Plan Administrator may issue Optionee an
additional option, with terms identical to the option agreement under
which the option was received, entitling Optionee to purchase
additional Stock in an amount equal to the number of shares so
retained.
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15. Corporate Transaction.
(a) For purposes of this Section 15, a "Corporate Transaction" shall
include any of the following stockholder-approved transactions to
which the Company is a party:
(i) a merger or consolidation in which the Company is not the
surviving entity, except for (1) a transaction the principal
purpose of which is to change the state of the Company's
incorporation, or (2) a transaction in which the Company's
stockholders immediately prior to such merger or consolidation
hold (by virtue of securities received in exchange for their
shares in the Company) securities of the surviving entity
representing more than fifty percent (50%) of the total voting
power of such entity immediately after such transaction;
(ii) the sale, transfer or other disposition of all or substantially
all of the assets of the Company unless the Company's
stockholders immediately prior to such sale, transfer or other
disposition hold (by virtue of securities received in exchange
for their shares in the Company) securities of the purchaser or
other transferee representing more than fifty percent (50%) of
the total voting power of such entity immediately after such
transaction; or
(iii) any reverse merger in which the Company is the surviving entity
but in which the Company's stockholders immediately prior to
such merger do not hold (by virtue of their shares in the
Company held immediately prior to such transaction) securities
of the Company representing more than fifty percent (50%) of
the total voting power of the Company immediately after such
transaction.
(b) In the event of any Corporate Transaction, any option or outstanding
SAR shall terminate and any restricted stock shall be reconveyed to or
repurchased by the Company immediately prior to the specified
effective date of the Corporate Transaction; provided, however, that
to the extent permitted by applicable law, any unvested option, SAR or
any restricted stock shall vest and become exercisable as to 25% of
the unvested shares, or become nonforfeitable as to 25% of the
forfeitable shares, as applicable, immediately prior to the specified
effective date of the Corporate Transaction. Notwithstanding the
foregoing, options, SARs or restricted stock shall not terminate if,
in connection with the Corporate Transaction, they are to be assumed
or substituted by the successor corporation or its parent company. If
options, SARs or restricted stock are not assumed or substituted by
the successor corporation or its parent pursuant to options, SARs or
restricted stock agreements providing substantially equal value and
having substantially
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equivalent provisions as the options, SARs or restricted stock granted
pursuant to this Plan, such options, SARs or restricted stock shall
vest and become exercisable or nonforfietable, as applicable as to an
additional 25% of the unvested shares or forfeitable shares,
immediately prior to the specified effective date of the Corporate
Transaction.
16. Stockholder Approval. This Plan shall only become effective with regard to
incentive stock options upon its approval by a majority of the stockholders
voting (in person or by proxy) at a stockholders' meeting held within 12
months of the Board's adoption of the Plan. The Plan Administrator may
grant incentive stock options under the Plan prior to the stockholders'
meeting, but until stockholder approval of the Plan is obtained, no
incentive stock option shall be exercisable.
17. Information to Plan Participants. The Company shall provide to each Plan
participant, during any period for which said participant has one or more
options or SARs or shares acquired pursuant to the Plan outstanding, copies
of annual reports of the Company issued during said period.
18. No Trust or Fund. The Plan is intended to constitute an "unfunded" plan.
Nothing contained herein shall require the Company to segregate any monies
or other property, or shares of Stock, or to create any trusts, or to make
any special deposits for any immediate or deferred amounts payable to any
Optionee, and no Optionee shall have any rights that are greater than those
of a general unsecured creditor of the Company.
19. Severability. If any provision of the Plan or any option is determined to
be invalid, illegal or unenforceable in any jurisdiction, or as to any
person, or would disqualify the Plan or any option under any law deemed
applicable by the Plan Administrator, such provision shall be construed or
deemed amended to conform to applicable laws, or, if it cannot be so
construed or deemed amended without, in the Plan Administrator's
determination, materially altering the intent of the Plan or the option,
such provision shall be stricken as to such jurisdiction, person or option,
and the remainder of the Plan and any such option shall remain in full
force and effect.
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