EXHIBIT 10.2
CNET NETWORKS, INC.
Participant:
Date of Grant:
GrantType:
Number of Shares
Subject
to Option:
Grant Number::
Exercise Price Per
Share:
Expiration Date:
Name of Plan:
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:
R
E C I T A L S:
WHEREAS, the
Company has adopted the stock option plan identified above (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 exercise price per share
as set forth above (the “Exercise Price”). This Option is intended to
be a non-qualified stock option (and not an incentive stock option). The 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.
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.
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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,
provided, that, the number of Option Shares that vest at each time shall be
rounded to a whole number of Option Shares and, provided, further, that, if any vesting
date occurs on a day of a month in which there is no such date, the vesting date shall be
the first day of the next month. If Participant’s employment with the Company and its
Affiliates is terminated under circumstances constituting Involuntary Termination on or
prior to the date that is one year following a Change of Control of the Company,
Participant shall receive eighteen (18) months of additional vesting of the Options Shares
as of the last date of Participant’s employment (but in no event shall any option
become vested and exercisable as to more than one hundred percent (100%) of the shares
subject to such options).
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(b)
Termination of Employment.
If
the Participant’s employment with the Company and its Affiliates is terminated 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, to the extent not previously
exercised, shall remain exercisable for the period set forth in Section 3(a) and shall
thereafter be cancelled.
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(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: |
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(i) |
the tenth anniversary of the Date of Grant; |
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(ii) |
one year following the date the Participant’s employment with the Company
and its Affiliates is terminated due to the Participant’s death or
Disability; |
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(iii) |
ninety days following the date the Participant’s employment with the
Company and its Affiliates is terminated by the Company without Cause (other
than as a result of death or Disability) or by the Participant for any reason,
provided, that, if Participant dies during such ninety day period,
“one year” shall be substituted in the place of “ninety
days”; and |
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(iv) |
the date (A) the Participant’s employment with the Company and its
Affiliates 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:
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“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 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.
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“Disability”
shall mean the inability of a Participant to perform in all material respects his duties
and responsibilities to the Company, or any Subsidiary or Affiliate 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.
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“Involuntary
Termination” shall mean “involuntary termination” 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, “Involuntary Termination” shall mean (a) any termination
of Participant’s employment for any reason other than Disability, death or Cause; (b)
a reduction in Participant’s base salary or target bonus as in effect immediately
prior to such reduction by more than 10% or (c) the relocation of Participant’s
employment to a facility or a location more than thirty (30) miles from Participant’s
then present location, without the Participant’s consent.
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(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, (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 or (v) such other
method as may be permitted or prescribed from time to time by the Committee. |
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(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 to be necessary or advisable. |
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(iii) |
Upon the Company’s determination that the Option has been validly exercised
as to any of the Shares and the Company has received full payment of the Option
Price, 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. |
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(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. |
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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. |
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6. |
Ownership of Products and Material. |
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(a) |
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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(b) |
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: |
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(i) |
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: |
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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 |
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o |
Result from any work performed by the employee for the employer. |
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(ii) |
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. |
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(c) |
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. |
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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. |
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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. 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. |
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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. |
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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. |
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12. |
Decisions Relating to Termination of Employment. Whether and when
Participant’s employment with the Company and its Affiliates has been
terminated (and whether such termination was due to Disability, was for Cause or
was on account of a breach of Sections 4, 5 or 6 of this Agreement) shall
be decided by the Committee in its sole discretion and such decision shall be
final, binding and conclusive on the Participant. In addition, the Committee may
determine when a transfer of Participant to an Affiliate constitutes a
termination of employment for purposes of this Award. |
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13. |
Right of Recapture. If at any time within six months after the date on
which a Participant exercises this Option (a “realization
event”), the Participant (i) is terminated for Cause, (ii) engages in
activity which would have permitted the Company to terminate Participant for
Cause or (iii) breaches Sections 4, 5 or 6 of this Agreement (in each case as
determined by the Committee in its sole discretion), then any gain realized by
the Participant from the realization event shall be paid by the Participant to
the Company upon notice from the Company. Such gain shall be determined on a
gross basis, without reduction for any taxes incurred, as of the date of the
realization event, without regard to any subsequent change in the Fair Market
Value of the Shares. The Company shall have the right to offset such gain
against any amounts otherwise owed to the Participant by the Company (whether as
wages, vacation pay, or pursuant to any benefit plan or other compensatory
arrangement). |
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14. |
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 with respect to this Agreement as well as with respect to all
aspects of Participant’s employment by the Company or its affiliate. |
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15. |
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. |
16.
Limitation of Payments.
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(a)
In the event that the receipt by Participant of Option Shares pursuant to this
Agreement (i) constitute “parachute payments” within the meaning of
Section 280G of the Internal Revenue Code of 1986, as amended (the
“Code”) and (ii) but for this Section 16, would be subject to the
excise tax imposed by Section 4999 of the Code, then the Participant’s
Option Shares shall be either |
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(A)
delivered in full, or |
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(B)
delivered as to such lesser extent which would result in no portion of such
severance benefits being subject to excise tax under Section 4999 of the Code, |
whichever of the foregoing amounts,
taking into account the applicable federal, state and local income taxes and the excise
tax imposed by Section 4999, results in the receipt by the Participant on an after-tax
basis, of the greatest amount of Option Shares, notwithstanding that all or some portion
of such Option Shares may be taxable under Section 4999 of the Code. Any taxes due under
Section 4999 shall be the responsibility of the Participant.
(b)
If a reduction in the Option Shares that would otherwise be provided to the
Participant under the terms of this Agreement is necessary to comply with the
provisions of Section 16(a), the Participant shall be entitled to select whether
to reduce the Option Shares to which he or she is entitled under this Agreement
or to reduce other payments or benefits to which he or she may be entitled under
any other agreement or plan, as well as the method of any such reduction of such
payments or benefits, subject to reasonable limitations (including, for example,
express provisions under the Company’s benefit plans) (so long as the
requirements of Section 16(a) are met). Within thirty (30) days after the amount
of any required reduction in Option Shares, payments or benefits is finally
determined in accordance with the provisions of Section 16(c), the Participant
shall notify the Company in writing regarding which payments or benefits are to
be reduced. If no notification is given by the Participant, the Company will
determine which amounts to reduce. If, as a result of any reduction required by
Section 16(a), amounts previously paid to the Participant exceed the amount to
which the Participant is entitled, the Participant will promptly return the
excess amount to the Company.
(c)
Unless the Company and the Participant otherwise agree in writing, any
determination required under this Section 16 shall be made in writing by the
Company’s Accountants immediately prior to Change of Control, whose
determination shall be conclusive and binding upon the Participant and the
Company for all purposes. For purposes of making the calculations required by
this Section 16, the Accountants may, after taking into account the information
provided by the Participant, make reasonable assumptions and approximations
concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Sections 280G and 4999 of the
Code. The Company and the Participant shall furnish to the Accountants such
information and documents as the Accountants may reasonably request in order to
make a determination under this Section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 4.
16.
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:____________________________
Agreed and acknowledged as of the
date first above written:
Participant
CNET NETWORKS
ALTERNATIVE DISPUTE RESOLUTION POLICY
In
the event of any dispute arising out of or related to an employee’s employment with
CNET Networks, Inc. or any of its subsidiaries (“CNET”), or the termination
thereof, in which the parties are unable to come to a resolution (excluding claims for
workers’ compensation, unemployment insurance, any matter within the exclusive
jurisdiction of the Labor Commissioner or the National Labor Relations Board, or any other
matter which may not lawfully be the subject of a mandatory arbitration
agreement),*the employee and CNET agree to submit the dispute to final and
binding arbitration pursuant to the then current National Rules For The Resolution Of
Employment Disputes (the “Rules”) of the American Arbitration Association (AAA);
provided, however, that the cost of the arbitration borne by the employee will not exceed
the cost to the employee if the dispute had been submitted to a court of law. Copies of
the AAA Rules may be obtained from CNET’s Human Resources Department or by visiting
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇.
A
Request for Arbitration is initiated by submitting a request in writing to CNET’s
Human Resources Department or the AAA within the statute of limitations period which would
apply if the employee had filed a complaint in a court of law. If the dispute involves a
claim which CNET has against the employee, CNET must submit a written request to the AAA,
with a copy to the employee, within the applicable statute of limitations.
The
Request for Arbitration shall include a brief statement of the nature of the dispute; the
names, addresses and telephone numbers of the parties; the amount in controversy; the
remedy sought; and the requested hearing location.
Prior
to selecting an arbitrator, CNET and the employee will submit their dispute to non-binding
mediation. The cost of the mediation will be borne by CNET. If the parties are unable to
agree on a mediator, the parties will request a panel of mediators from the AAA and will
alternately strike names until one name remains.
The
arbitrator selected by the parties is authorized to award any relief which could be
awarded by a court of law hearing the same dispute. The arbitrator’s award, which
must be in writing, will be final and binding, except to the extent that judicial review
is permitted by law.
Nothing
in this Policy shall preclude either the employee or CNET from applying to a court of
competent jurisdiction for injunctive relief pending final resolution of the underlying
dispute through arbitration.
Nothing
in this Policy shall prevent an employee from filing claims of discrimination with the
Equal Employment Opportunity Commission (EEOC) and/or the California Department of Fair
Employment and Housing (DFEH) and having such claims investigated by either Agency.
This
Agreement may not be modified or amended except in writing signed by the affected employee
and the CEO of CNET.
If
any provision of this Agreement is declared illegal or unenforceable, the remaining
provisions shall remain in effect. In such an event, the court is authorized to conform
this Agreement to existing law. This Agreement constitutes a waiver of both parties’
rights to a civil court action or a jury trial concerning matters covered by this
Agreement; only an arbitrator, not a judge or jury, will decide the dispute.
* NOTE: As of the revision
of this policy in February 2000, claims of employment discrimination based on federal law
may not be the subject of a mandatory arbitration agreement in the states within the Ninth
Circuit Court of Appeals (which includes California). CNET will comply with applicable law
at all times, but if the law in the Ninth Circuit changes, this Policy will extend to all
disputes which may lawfully be the subject of a mandatory arbitration policy.