EXHIBIT 4.1
Go2Net, Inc.
1999 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose
It is the purpose of this Employee Stock Purchase Plan to provide a
means whereby eligible employees may purchase Common Stock of Go2Net, Inc. (the
"Company") through after-tax payroll deductions. It is intended to provide a
further incentive for employees to promote the best interests of the Company and
to encourage stock ownership by employees in order that they may participate in
the Company's economic growth. It is the intention, but not the obligation, of
the Company that the Plan qualify as an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code, and that the provisions
of this Plan be construed in a manner consistent with the Code.
2. Definitions
The following words or terms, when used herein, shall have the
following respective meanings:
(a) "Account" means the Employee Stock Purchase Account
established for a Participant under Section 7 hereunder.
(b) "Board of Directors" shall mean the Board of Directors of
Go2Net, Inc.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
(d) "Committee" shall mean the committee described in Section 5.
(e) "Common Stock" shall mean shares of the Company's common
stock with a par value of $.01 per share.
(f) "Company" shall mean Go2Net, Inc., a Delaware corporation.
(g) "Compensation" shall mean the sums of the types and amounts of
compensation determined from time to time by the Board of
Directors or Committee in its sole discretion to be eligible
to be taken into account under the Plan, provided that no such
determination shall include or exclude any type or amount of
Compensation contrary to the requirements of Section 423 of
the Code.
(h) "Effective Date" shall mean January 28, 1999.
(i) "Eligible Employees" shall mean all persons employed by the
Company or a Subsidiary and classified by the Company or the
Subsidiary as an employee for federal income tax withholding
purposes, but excluding:
(1) Persons who have been employed by the Company or a
Subsidiary for less than three months on the first
day of the Purchase Period, with the exception of
person previously eligible ;
(2) Persons whose customary employment is less than
twenty hours per week or five months or less per
year; and
(3) Persons who are deemed for purposes of Section
423(b)(3) of the Code to own stock possessing 5% or
more of the total combined voting power or value of
all classes of stock of the Company or a Subsidiary.
Except as otherwise provided in Section 12, for purposes of
the Plan the employment relationship shall be treated as
continuing intact while an individual is on military leave or
other leave of absence approved by the Company or a
Subsidiary. Where the period of leave exceeds 90 days and the
individual's right to re-employment is not guaranteed either
by statute or by contract, the employment relationship shall
be deemed to have terminated on the 91st day of such leave.
(j) "Exercise Date" shall mean the last day of a Purchase Period;
provided, however, that if such date is not a business day,
"Exercise Date" shall mean the immediately preceding business
day.
(k) "Participant" shall mean an Eligible Employee who elects to
participate in the Plan under Section 6 hereunder.
(l) "Plan" shall mean the Go2Net, Inc. 1999 Employee Stock
Purchase Plan.
(m) "Purchase Periods" shall mean the two purchase periods within
each calendar year, one commencing on April 1 of each calendar
year and continuing through the September 30 of such calendar
year, and the second commencing on October 1 of each calendar
year and continuing through March 31 of such calendar year.
(n) "Purchase Price" shall mean the lower of (i) 85% of the fair
market value of a share of Common Stock for the first
business day of the relevant Purchase Period, or (ii) 85% of
such value for the relevant Exercise Date. If the
shares of Common Stock are listed on any national securities
exchange, or traded on the National Association of
Securities Dealers Automated Quotation System ("NASDAQ")
National Market System, the fair market value per share of
Common Stock on a particular day shall be the mean between
the high and low sales prices of a share of Common Stock
on the largest such exchange, or if not traded on an
exchange, on the NASDAQ National Market System, on such day,
as reported in The Wall Street Journal or such other source as
the Board of Directors deems reliable and, if there
are no sales of the shares of Common Stock on such particular
day, the fair market value of a share of Common Stock
shall be determined by taking a weighted average of the
closing price on the nearest date before and the nearest
date after the particular day in accordance with Treasury
Regulation Section 25.2512-2. If the shares of Common
Stock are not then listed on any such exchange or the NASDAQ
National Market System, the fair market value per share
of Common Stock on a particular day shall be the mean between
the closing "Bid" and the closing "Asked" prices, if
any, as reported in the National Daily Quotation Service for
such day. If the fair market value cannot be determined under
the proceeding sentences, it shall be determined in good
faith by the Board of Directors.
(o) "Subsidiary" shall mean any present or future corporation
which (i) would be a subsidiary corporation as defined in
Section 424(f) of the Code, and (ii) is designated by the
Board of Directors as a participating employer for purposes of
this Plan.
3. Grant of Option to Purchase Shares.
Each Eligible Employee shall be granted an option effective on the
first day of each Purchase Period to purchase shares of Common Stock. The term
of the option shall be the length of the Purchase Period. The number of shares
subject to each option shall be the quotient of the aggregate payroll deductions
in the Purchase Period authorized by each Participant in accordance with Section
6 divided by the Purchase Price, but in no event shall the number of shares
subject to each option be in excess of 1,000 shares per Purchase Period (subject
to adjustment in accordance with Section 4), or such other number of shares as
determined from time to time by the Board of Directors or the Committee.
Notwithstanding the foregoing, no employee shall be granted an option which
permits his right to purchase shares under the Plan to accrue at a rate which
exceeds in any one calendar year $25,000 (or such other amount as may be
prescribed from time to time under Section 423 of the Code) of the fair market
the value of the Common Stock as of the date the option to purchase is granted.
4. Shares.
Subject to adjustment upon changes in capitalization of the Company as
provided this Section 4, the maximum number of shares of Common Stock which
shall be made available for issuance to and purchase by Participants under this
Plan shall be 250,000 shares. The shares of Common Stock subject to the Plan
shall be either shares of authorized but unissued Common Stock or shares of
Common Stock reacquired by the Company and held as treasury shares. Shares of
Common Stock not purchased under an option terminated pursuant to the provisions
of the Plan may again be subject to options granted under the Plan. The
aggregate number of shares of Common Stock which may be purchased pursuant to
options granted hereunder, the number of shares of Common Stock covered by each
outstanding option, and the purchase price for each such option shall be
appropriately adjusted for any increase or decrease in the number of outstanding
shares of Common Stock resulting from a stock split or other subdivision or
consolidation of shares of Common Stock or for other capital adjustments or
payments of stock dividends or distributions or other increases or decreases in
the outstanding shares of Common Stock effected without receipt of consideration
by the Company provided, however, that conversion of any convertible securities
of the Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board of Directors whose
determination in that respect shall be binding and conclusive.
5. Administration.
The Plan shall be administered by the Board of Directors or a Committee
(which may be the same committee as the Company's compensation committee) as may
be appointed from time to time by the Board of Directors. Committee members
shall be ineligible to participate under the Plan. All members of the Committee
shall serve at the discretion of the Board. The Board of Directors or the
Committee, if one has been appointed, is vested with full authority to interpret
the terms of the Plan, to remedy any ambiguity, inconsistency, or omission, and
to make, administer and interpret such equitable rules and regulations regarding
the Plan as it may deem advisable. The Board of Directors', or the Committee's,
if one has been appointed, determinations as to the interpretation and operation
of the Plan shall be final and conclusive. No member of the Board of Directors
or the Committee shall be liable for any action or determination made in good
faith with respect to the Plan or any option granted under the Plan.
6. Election to Participate.
An Eligible Employee may elect to become a Participant in the Plan for
a Purchase Period by completing a "Stock Purchase Agreement" form prior to the
first day of the Purchase Period for which the election is made. Such Stock
Purchase Agreement shall be in such form as shall be determined from time to
time by the Board of Directors or the Committee. The election to participate
shall be effective for the Purchase Period for which it is made. There is no
limit on the number of Purchase Periods for which an Eligible Employee may elect
to become a Participant in the Plan. In the Stock Purchase Agreement, the
Eligible Employee shall authorize regular payroll deductions of any full
percentage of his Compensation, but in no event less than one percent (1%) nor
more than ten percent (10%) of his Compensation. Except as otherwise provided in
Section 9, an Eligible Employee may not change his authorization during a
Purchase Period to which the election applies. Options granted to Eligible
Employees who have failed to execute a Stock Purchase Agreement within the time
periods prescribed by the Plan will automatically lapse.
7. Employee Stock Purchase Account.
An Employee Stock Purchase Account will be established for each
Participant in the Plan for bookkeeping purposes, and payroll deductions made
under Section 6 will be credited to such Accounts. However, prior to the
purchase of shares in accordance with Section 8 or withdrawal from or
termination of the Plan in accordance with the provisions hereof, the Company
may use for any valid corporate purpose all amounts deducted from a
Participant's compensation under the Plan and credited for bookkeeping purposes
to his account. The Company shall be under no obligation to pay interest on
funds credited to a Participant's account, whether upon purchase of shares in
accordance with Section 8 or upon distribution in the event of withdrawal from
or termination of the Plan as herein provided.
8. Purchase of Shares.
Each Eligible Employee who is a Participant in the Plan automatically
and without any act on his part will be deemed to have exercised his option on
each Exercise Date to the extent that the balance then in his Account under the
Plan is sufficient to purchase at the Purchase Price whole shares of the
Company's stock subject to his option and the limitations described in Section
3. Any balance remaining in the Participant's Account shall be carried forward
and credited for use in the next Purchase Period. If the Employee chooses not to
participate in the next Purchase Period, any balance will be refunded to him in
cash.
9. Withdrawal.
A Participant who has elected to authorize payroll deductions for the
purchase of shares of Common Stock may cancel his election by written notice of
cancellation ("Cancellation") delivered to the office or person designated by
the Company to receive Stock Purchase Agreements, but any such Cancellation must
be so delivered not later than ten (10) days before the relevant Exercise Date.
A Participant will receive in cash, as soon as practicable after delivery of the
Cancellation, the amount credited to his Account. Any Participant who so
withdraws from the Plan may again become a Participant at the start of the next
Purchase Period in accordance with Section 6.
Upon dissolution or liquidation of the Company or a merger or
consolidation in which the Company is not the surviving entity every option
outstanding hereunder shall terminate, in which event each Participant shall be
refunded the amount of cash then in his Account.
10. Issuance of Stock Certificates.
The shares of Common Stock purchased by a Participant shall, for all
purposes, be deemed to have been issued and sold at the close of business on the
Exercise Date. Prior to that date none of the rights or privileges of a
stockholder of the Company, including the right to vote or receive dividends,
shall exist with respect to such shares.
Within a reasonable time after the Exercise Date, the Company shall
issue and deliver a certificate for the number of shares of Common Stock
purchased by a Participant for the Purchase Period, which certificate shall be
registered either in the Participant's name, or jointly in the names of the
Participant and his spouse, as the Participant shall designate in his Stock
Purchase Agreement. Such designation may be changed at any time by filing notice
thereof with the person designated by the Company to receive such notices.
11. Termination of Employment.
Upon a Participant's termination of employment for any reason, other
than death, no payroll deduction may be made from any compensation due him and
the entire balance credited to his Account shall be automatically refunded, and
his rights under the Plan shall terminate. Upon the death of a Participant, no
payroll deduction shall be made from any compensation due him at time of death,
and the entire balance in the deceased Participant's Account shall be paid in
cash to the Participant's designated beneficiary, if any, under a group
insurance plan of the Company covering such employee, or otherwise to his
estate, and his rights under the Plan shall terminate.
12. Temporary Layoff and Authorized Leave of Absence; Long Term Disability.
Except as otherwise provided by applicable law, payroll deductions
shall cease during a period of absence from work due to a Participant's
temporary layoff, authorized leave of absence without pay, disability for which
benefits are not payable from the Company or Co-op Programs. If such Participant
shall return to active service prior to the Exercise Date for the current
Purchase Period, payroll deductions shall be resumed. He shall not be entitled
to make up the deficiency in his Account caused by his absence and, accordingly,
the number of shares to be purchased shall be reduced. If the Participant shall
not return to active service prior to the Exercise Date for the current Purchase
Period, and the Participant was absent for more than fifty percent (50%) of the
weeks in the Purchase Period, his Stock Purchase Agreement shall be terminated
and the balance in his Account shall be refunded. All other Participants will
have an option to cancel their election in accordance with Section 9.
13. Rights Not Transferable; Restrictions on Transfer.
The right to purchase shares of Common Stock under this Plan is
exercisable only by the Participant during his lifetime and is not transferable
by him. If a Participant attempts to transfer his right to purchase shares under
the Plan, he shall be deemed to have requested withdrawal from the Plan and the
provisions of Section 9 hereof shall apply with respect to such Participant.
14. No Guarantee of Continued Employment.
Granting of an option under this Plan shall imply no right of continued
employment with the Company for any Eligible Employee.
15. Notice.
Any notice which an Eligible Employee or Participant files pursuant to
this Plan shall be in writing and shall be delivered personally or by mail
addressed to the Company's Treasurer, c/o Go2Net, Inc., 999 Third Avenue, Suite
4700, Seattle, Washington 98104. Any notice to a Participant or an Eligible
Employee shall be conspicuously posted in the Company's principal office or
shall be mailed addressed to the Participant or Eligible Employee at the address
designated in the Stock Purchase Agreement or in a subsequent writing.
16. Application of Funds.
All funds deducted from a Participant's compensation in payment for
shares purchased or to be purchased under this Plan may be used for any valid
corporate purpose provided that the Participant's Account shall be credited with
the amount of all payroll deductions as provided in Section 7.
17. Government Approvals or Consents.
This Plan and any offering and sales to Eligible Employees under it are
subject to any governmental approvals or consents that may be or become
applicable in connection therewith. Subject to the provisions of Section 18, the
Board of Directors may make such changes in the Plan and include such terms in
any offering under this Plan as may be necessary or desirable, in the opinion of
counsel, to comply with the rules or regulations of any governmental authority,
or to be eligible for tax benefits under the Code or the laws of any state, or
in the opinion of the Company's auditors, to eliminate or reduce any unfavorable
financial accounting consequences.
18. Amendment of the Plan.
The Board of Directors may, without the consent of the Participants,
amend the Plan at any time, provided that, except as otherwise provided in this
Plan, no such action shall adversely affect options theretofore granted
hereunder and no such amendment (without approval by the company's stockholders)
may: (i) increase the total number of shares of Common Stock which may be
purchased by all Participants, (ii) change the class of Employees eligible to
receive options under the Plan; (iii) decrease the Purchase Price; (iv) extend a
Purchase Period thereunder; or (v) extend the term of the Plan. For purposes of
this Section 18, termination of the Plan by the Board of Directors pursuant to
Section 19 shall not be deemed to be an action which adversely affects options
theretofore granted hereunder.
19. Term of the Plan.
The Plan shall become effective on the Effective Date, provided that it
is approved within twelve months after adoption by the Board of Directors at a
duly-held stockholder's meeting. The Plan shall continue in effect through
January 28, 2009, provided, however, that the Board of Directors shall have the
right to terminate the Plan at any time. In the event of the expiration of the
Plan or its termination, all options then outstanding under the Plan shall
automatically be canceled and the entire amount credited to the Account of each
Participant hereunder shall be refunded to each such Participant without
interest.
20. Notice to Company of Disqualifying Dispositions.
By electing to participate in the Plan, each Participant agrees to
notify the Company in writing immediately after the Participant transfers Common
Stock acquired under the Plan, if such transfer occurs within two years after
the first business day of the Purchase Period in which such Common Stock was
acquired. Each Participant further agrees to provide any information about such
a transfer as may be requested by the Company or any Subsidiary in order to
assist it in complying with any applicable tax laws. The Participant
acknowledges that the Company may send a W-2, or substitute therefor, as
appropriate, to the Participant with respect to any income recognized by the
Participant upon a disqualifying disposition of Common Stock.
21. Withholding of Taxes.
Each Participant must make adequate provision for the Company's
federal, state or other tax withholding obligations, if any, which may arise
upon the exercise of the option or the disposition of the Common Stock. At any
time, the Company may, but shall not be obligated to, withhold from the
Participant's compensation the amount necessary for the Company to meet
applicable withholding obligations, including any withholding required to make
available to the Company any tax deductions or benefits attributable to sale or
early disposition of Common Stock by the Participant.
22. General.
Whenever the context of this Plan permits, words in any gender
shall include any other gender, words in the singular shall include the plural
and the plural shall include the singular.
