EXHIBIT (d)(12)
CNET NETWORKS, INC.
XXXX-XXXXX 1998 INCENTIVE COMPENSATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
PARTICIPANT:
DATE OF GRANT: GRANT TYPE:
NUMBER OF SHARES SUBJECT TO GRANT NUMBER:
OPTION:
EXERCISE PRICE PER SHARE: EXPIRATION DATE:
THIS AGREEMENT (the "Agreement"), is made effective as of the
Date of Grant between CNET Networks, Inc., a Delaware corporation (hereinafter
called the "Company"), and the Participant:
RECITALS:
WHEREAS, the Company has assumed the 1998 Xxxx-Xxxxx Incentive
Compensation Plan (the "Plan"), which Plan is incorporated herein by reference
and made a part of this Agreement. Capitalized terms not otherwise defined
herein shall have the same meanings as in the Plan; and
WHEREAS, the Committee has determined that it would be in the
best interests of the Company and its stockholders to grant the option provided
for herein to the Participant pursuant to the Plan and the terms set forth
herein.
NOW THEREFORE, in consideration of the mutual covenants
hereinafter set forth, the parties agree as follows:
1. Grant of the Option. The Company hereby grants to the
Participant the right and option (the "Option") to purchase, on the terms and
conditions hereinafter set forth, all or any part of an aggregate of the number
of shares subject to the option as set forth above (the "Option Shares"),
subject to adjustment as set forth in the Plan. The purchase price of the Shares
subject to the Option shall be the
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exercise price per share as set forth above (the "Exercise Price"). This Option
is intended to be a non-qualified stock under the Code.
2. Vesting. At any time, the portion of the Option which has
become vested and exercisable as described in this Section 2 is hereinafter
referred to as the "Vested Portion."
(a) Vesting Schedule.
(i) Subject to Section 2(b), the Option shall vest
and become exercisable with respect to twenty-five percent of the Option Shares
on the first anniversary of the Date of Grant and shall vest and become
exercisable with respect to 1/48 of the aggregate Option Shares on a monthly
basis thereafter on the date of the month that corresponds to the date of grant.
(b) Termination of Employment
If the Participant's employment ceases for any reason, the
Option shall, to the extent not then vested, be canceled by the Company without
consideration and the Vested Portion of the Option shall remain exercisable for
the period set forth in Section 3(a).
3. Exercise of Option.
(a) Period of Exercise. Subject to the provisions of the Plan
and this Agreement, the Participant may exercise all or any part of the Vested
Portion of the Option at any time prior to the earliest to occur of:
(i) the tenth anniversary of the Date of Xxxxx;
(ii) one year following the date the Participant's employment
is terminated due to the Participant's death or Disability;
(iii) ninety days following the date the Participant's
employment is terminated by the Company without Cause (other than as a
result of death or Disability) or by the Participant for any reason;
and
(iv) the date (A) the Participant's employment is terminated
by the Company for Cause or (B) the Participant breaches Sections 4, 5,
or 6 of this Agreement.
For purposes of this Agreement:
"Cause" shall mean "cause" as defined in any employment
agreement entered into by and between the Participant and the Company
or any of its Subsidiaries which is in effect as of or after the Date
of Grant (as the same may be amended in accordance with the terms
thereof) or if not defined therein or if there shall be no such
agreement, "Cause" shall mean (A) the Participant's continued failure
substantially to perform his duties to the Company (other than as a
result of total or partial incapacity due to physical or mental
illness) for a period of ten days following written notice by the
Company to the Participant of such failure, (B) dishonesty in the
performance of the Participant's duties to the Company, (C) an act or
acts on the Participant's part constituting (x) a felony under the laws
of the United States or any state thereof or (y) a misdemeanor
involving moral turpitude, (D) the Participant's willful malfeasance or
willful misconduct in connection with the
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Participant's duties to the Company or any act or omission which is
materially injurious to the financial condition or business reputation
of the Company or any of its subsidiaries or affiliates, or (E) the
Participant's breach of the terms of his employment agreement or any
non-compete, non-solicitation or confidentiality provisions to which
the Participant is subject.
"Disability" shall mean the inability of a Participant to
perform in all material respects his duties and responsibilities to the
Company, or any Subsidiary of the Company, by reason of a physical or
mental disability or infirmity which inability is reasonably expected
to be permanent and has continued (v) for a period of six consecutive
months or (vi) such shorter period as the Committee may reasonably
determine in good faith. The Disability determination shall be in the
sole discretion of the Committee and a Participant (or his
representative) shall furnish the Committee with medical evidence
documenting the Participant's disability or infirmity which is
satisfactory to the Committee.
(b) Method of Exercise.
(i) Subject to Section 3(a), the Vested Portion of
the Option may be exercised by delivering to the Company at its principal office
or its designee written notice of intent to so exercise; provided that, the
Option may be exercised with respect to whole Shares only. Such notice shall
specify the number of Shares for which the Option is being exercised and shall
be accompanied by payment in full of the Option Price. The payment of the Option
Price shall be made (i) in cash or its equivalent (e.g., by check), (ii) in
Shares having a Fair Market Value equal to the aggregate Option Price for the
Shares being purchased and satisfying such other requirements as may be imposed
by the Committee; provided, that such Shares have been held by the Participant
for no less than six months, (iii) partly in cash and partly in such Shares or
(iv) through the delivery of irrevocable instructions to a broker to deliver
promptly to the Company an amount equal to the aggregate Option Price for the
shares being purchased from the proceeds of the sale of the Shares by such
broker.
(ii) Notwithstanding any other provision of the Plan
or this Agreement to the contrary, the Option may not be exercised prior to the
completion of any registration or qualification of the Option or the Shares that
is required to comply with applicable state and federal securities or any ruling
or regulation of any governmental body or national securities exchange that the
Committee shall in its sole discretion determine in good faith to be necessary
or advisable.
(iii) Upon the Company's determination that the
Option has been validly exercised as to any of the Shares, the Company shall
issue certificates in the Participant's name for such Shares. However, the
Company shall not be liable to the Participant for damages relating to any
delays in issuing the certificates to him, any loss of the certificates, or any
mistakes or errors in the issuance of the certificates or in the certificates
themselves.
(iv) In the event of the Participant's death, the
Vested Portion of the Option shall remain exercisable by the Participant's
executor or administrator, or the person or persons to whom the Participant's
rights under this Agreement shall pass by will or by the laws of descent and
distribution as the case may be, to the extent set forth in Section 3(a). Any
heir or legatee of the Participant shall take rights herein granted subject to
the terms and conditions hereof.
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4. Non-Solicitation. Participant will not (except in the
course of performing authorized duties as expressly directed or authorized by
Company), directly or indirectly, either as an employee, partner, owner,
director, advisor or in any other capacity recruit or solicit for employment any
person who is, or within the six (6) month period preceding the date of such
activity was, an employee of the Company. This section shall be effective on a
worldwide basis and shall bind the Participant while an employee of the Company
and for a twelve (12) month period after termination of Participant's
employment.
5. Confidentiality. During the course of the Participant's
employment with the Company, the Company will provide the Participant with
access to certain confidential information, trade secrets, and other matters
which are of a confidential or proprietary nature, including but not limited to
the Company's customer lists, formatting and programming concepts and plans,
pricing information, production and cost data, compensation and fee information,
strategic business plans, budgets, financial statements, and other information
the Company treats as confidential or proprietary (collectively the
"Confidential Information"). The Company agrees to provide on an ongoing basis
such Confidential Information as the Company deems necessary or desirable to aid
the Participant in the performance of his duties. The Participant understands
and acknowledges that such Confidential Information is confidential and
proprietary, and agrees not to disclose such Confidential Information to anyone
outside the Company except to the extent that (i) the Participant deems such
disclosure or use reasonably necessary or appropriate in connection with
performing his duties on behalf of the Company; (ii) the Participant is required
by order of a court of competent jurisdiction (by subpoena or similar process)
to disclose or discuss any Confidential Information, provided that in such case,
the Participant shall promptly inform the Company of such event, shall cooperate
with the Company in attempting to obtain a protective order or to otherwise
restrict such disclosure, and shall only disclose Confidential Information to
the minimum extent necessary to comply with any such court order; or (iii) such
Confidential Information becomes generally known to and available for use in the
industries in which the Company does business, other than as a result of any
action or inaction by the Participant. The Participant further agrees that he
will not during employment and/or at any time thereafter use such Confidential
Information in competing, directly or indirectly, with the Company. At such time
as the Participant shall cease to be employed by the Company, he will
immediately turn over to the Company all Confidential Information, including
papers, documents, writings, electronically stored information, other property,
and all copies of them, provided to or created by him during the course of his
employment with the Company. This nondisclosure covenant is binding on the
Participant, as well as his heirs, successors, and legal representatives, and
will survive the termination of this Agreement for any reason.
6. Ownership of Products and Material
(1) Participant hereby acknowledges and agrees that all products and
materials that Participant creates, in whole or in part, while working for the
Company ("the Materials"), including without limitation, all inventions,
original works of authorship, developments, improvements, trade secrets,
copyrights, patent rights, and all parts, extensions and renewals thereof under
United States and all other laws, shall be the Company's sole and exclusive
property, free from any adverse claims. All copyrightable Materials shall be
"work for hire" as defined by Section 101(2) of the United States Copyright Act.
To the extent that any such Materials shall be deemed by any court of competent
jurisdiction of any governmental or regulatory agency not to be "work for hire,"
Participant hereby irrevocably assigns to the Company all rights, title and
interest in and to such Material.
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(2) Participant recognizes that this Agreement does not require
assignment of any invention that qualifies fully for protection under Section
2870 of the California Labor Code, which provides as follows:
a) Any provision in an employment agreement which provides
that an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own time
without using the employer's equipment, supplies, facilities, or trade
secret information except for those inventions that either:
- Relate at the time of the conception or reduction to
practice of the invention to the employer's business, or
actual or demonstrably anticipated research or development of
the employer; or
- Result from any work performed by the employee for the
employer.
b) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision (a), the
provision is against the public policy of this state and is
unenforceable.
(3) Participant has attached to this Agreement a complete disclosure of
all inventions, original works of authorship, developments, improvements, and
trade secrets that Participant has alone, or jointly with others, conceived,
developed, or reduced to practice or caused to be conceived, developed or
reduced to practice, that Participant considers to be his or her property or the
property of third parties and that Participant wishes to be excluded from the
scope of this Agreement. If no disclosure is attached, Participant represents
that there are no such inventions.
7. No Right to Continued Employment. Neither the Plan nor this
Agreement shall be construed as giving the Participant the right to be retained
in the employ of, or in any consulting relationship to, the Company or any
Affiliate. Further, the Company or an Affiliate may at any time dismiss the
Participant or discontinue any consulting relationship, free from any liability
or any claim under the Plan or this Agreement, except as otherwise expressly
provided herein.
8. Transferability. Except as otherwise provided in the Plan,
the Option may not be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by will or by the
laws of descent and distribution, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. No such permitted transfer of
the Option to heirs or legatees of the Participant shall be effective to bind
the Company unless the Committee shall have been furnished with written notice
thereof and a copy of such evidence as the Committee may deem necessary to
establish the validity of the transfer and the acceptance by the transferee or
transferees of the terms and conditions hereof. Except as otherwise provided in
the Plan, during the Participant's lifetime, the Option is exercisable only by
the Participant.
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9. Withholding. A Participant shall be required to pay to the
Company or any Affiliate and the Company shall have the right and is hereby
authorized to withhold, any applicable withholding taxes in respect of an
Option, its exercise or any payment or transfer under an Option or under the
Plan and to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such withholding taxes.
10. Securities Laws. Upon the acquisition of any Shares
pursuant to the exercise of the Option, the Participant will make or enter into
such written representations, warranties and agreements as the Committee may
reasonably request in order to comply with applicable securities laws or with
this Agreement.
11. Notices. Any notice necessary under this Agreement shall
be addressed to the Company in care of its Secretary at the principal executive
office of the Company and to the Participant at the address appearing in the
personnel records of the Company for the Participant or to either party at such
other address as either party hereto may hereafter designate in writing to the
other. Any such notice shall be deemed effective upon receipt thereof by the
addressee.
12. Alternative Dispute Resolution Policy. The Participant
agrees to be bound by and comply with the terms of the Company Arbitration
Policy and Procedures attached hereto.
13. Choice of Law. THE INTERPRETATION, PERFORMANCE AND
ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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14. Signature in Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement.
CNET NETWORKS, INC.
By:
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Xxxxxx and acknowledged as
of the date first above written:
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Participant
