EXHIBIT (d)(13)
CNET NETWORKS, INC.
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:
NAME OF PLAN: 2001 CNET NETWORKS, INC. STOCK INCENTIVE 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:
RECITALS:
WHEREAS, the Company has adopted the stock incentive plan
described 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
2
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.
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.
(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.
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 Grant;
(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;
(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
(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:
3
"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.
"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.
(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) with the Company's consent, 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.
(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.
4
(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.
(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.
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
5
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.
(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.
(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 or any similar statute of any other
jurisdiction, which provides as follows:
(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:
o 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
o Result from any work performed by the employee for
the employer.
(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.
(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.
6
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. 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.
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. 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.
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
7
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).
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.
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.
8
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
9
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 xxxx://xxx.xxx.xxx.
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
10
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.
