<PAGE>
As filed with the Securities and Exchange Commission on November 18, 1998
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
INFOSEEK CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
--------------------------
DELAWARE 77-0494507
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
1399 MOFFETT PARK DRIVE
SUNNYVALE, CALIFORNIA 94089
(Address, including zip code, of Registrant's principal executive offices)
STARWAVE CORPORATION REVISED 1992 COMBINED INCENTIVE AND
NONQUALIFIED STOCK OPTION PLAN,
AMENDED AND RESTATED AS OF MARCH 7, 1995
STARWAVE CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
HARRY M. MOTRO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INFOSEEK CORPORATION
1399 MOFFETT PARK DRIVE
SUNNYVALE, CALIFORNIA 94089
(408) 543-6000
(Name, address, and telephone number, including area code, of agent for service)
COPY TO:
Aaron J. Alter, Esq.
Adam R. Dolinko, Esq.
Elizabeth C. Hewitt, Esq.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
<S> <C> <C> <C> <C>
Common Stock of the Company to be 3,477,384 $ 1.00(2) $921,357 $257.00
issued upon exercise of options
granted under the Starwave
Corporation Revised 1992 Combined
Incentive and Nonqualified Stock
Option Plan, Amended and Restated
as of March 7, 1995 (the "1992 Plan")
Common Stock of the Company to be 1,283,960 $ 10.39(2) $13,340,344.40 $3,709.00
issued upon exercise of options
granted under the Starwave
Corporation 1997 Nonqualified Stock
Option Plan (the "1997 Plan")
=======================================================================================================
</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the Plan being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to the nearest cent) of
outstanding options under the Plan, the underlying shares of which are
registered hereby.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
-------------------------------------
There are hereby incorporated by reference into this Registration Statement
the following documents and information heretofore filed with the Securities and
Exchange Commission (the "Commission") by Infoseek Corporation (the
"Registrant"):
1. The Registrant's Joint Proxy Statement/Prospectus contained in the
Registration Statement on Form S-4 (Commission File No. 333-65365),
declared effective on October 14, 1998 pursuant to Rule 424(b)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act").
2. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated November 17,
1998 filed pursuant to Section 12(g) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") which was declared effective on
November 17, 1998 including any amendment or report filed for the
purpose of updating such description.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of the Registration Statement on Form
S-4 filed with the Securities and Exchange Commission on October 14, 1998, and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
------------------------------------------
Delaware law authorizes corporations to eliminate the personal liability
of directors to corporations and their stockholders for monetary damages for
breach or alleged breach of the directors' "duty of care." While the relevant
statute does not change directors' duty of care, it enables corporations to
limit available relief to equitable remedies such as injunction or rescission.
The statute has no effect on directors' duty of loyalty, acts or omissions
-2-
<PAGE>
not in good faith or involving intentional misconduct or knowing violations of
law, illegal payment of dividends and approval of any transaction from which a
director derives an improper personal benefit.
The Registrant has adopted provisions in its Certificate of Incorporation
which eliminate the personal liability of its directors to the Registrant and
its stockholders for monetary damages for breach or alleged breach of their duty
of care. The Bylaws of the Registrant provide for indemnification of its
directors, officers, employees and agents to the full extent permitted by the
General Corporation Law of the State of Delaware, the Registrant's state of
incorporation, including those circumstances in which indemnification would
otherwise be discretionary under Delaware Law. Section 145 of the General
Corporation Law of the State of Delaware provides for indemnification in terms
sufficiently broad to indemnify such individuals, under certain circumstances,
for liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933, as amended.
The Registrant has entered into agreements with each of its directors and
executive officers to indemnify such persons against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred (including
expenses of a derivative action) in connection with any proceeding, whether
actual or threatened, to which any such person may be made a party by reason of
the fact that such person is or was a director or officer of the Registrant or
any of its affiliated enterprises, provided such person acted in good faith and
in a manner such person reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
---------
<TABLE>
<CAPTION>
NUMBER DOCUMENT
- ------------ --------------------------------------------------------------------------------------
<C> <S>
4.1 Starwave Corporation Revised 1992 Combined Incentive and Nonqualified Stock Option
Plan, Amended and Restated as of March 7, 1995.
4.2 Starwave Corporation 1997 Nonqualified Stock Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, with respect to
the legality of the securities being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (See page 6).
</TABLE>
ITEM 9. UNDERTAKINGS.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of
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<PAGE>
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Infoseek Corporation, certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on
November 17, 1998.
INFOSEEK CORPORATION
By: /s/ Remo Canessa
------------------------------------
Remo Canessa, Vice President
and Chief Financial Officer
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<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harry M. Motro and Remo Canessa and each
of them, acting individually, as his attorney-in-fact, with full power of
substitution, for him and in any and all capacities, to sign any and all
amendments to this Registration Statement on this Form S-8 (including post-
effective amendments or any abbreviated registrations statement and any
amendments thereto filed pursuant to Rule 462(b) increasing the number of
securities for which registration is sought) and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitute or substitutes, may do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ----------------------------------------------------------------- --------------------------------------- -----------------
<S> <C> <C>
/s/ Harry M. Motro
_________________________________________________________________ President, Chief Executive Officer November 17, 1998
Harry M. Motro (Principal Executive Officer) and
Director
/s/ Remo Canessa
_________________________________________________________________ Vice President and Chief Financial November 17, 1998
Remo Canessa Officer (Principal Accounting Officer)
/s/ Steven T. Kirsch
_________________________________________________________________ Chairman of the Board of Directors November 17, 1998
Steven T. Kirsch
/s/ Matthew J. Stover
_________________________________________________________________ Director November 17, 1998
Matthew J. Stover
/s/ John E. Zeisler
_________________________________________________________________ Director November 17, 1998
John E. Zeisler
/s/ L. William Krause
_________________________________________________________________ Director November 17, 1998
L. William Krause
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit
Number Description
- -------- --------------------------------------------------------------------
4.1 Starwave Corporation Revised 1992 Combined Incentive and
Nonqualified Stock Option Plan, Amended and Restated as of March 7,
1995.
4.2 Starwave Corporation 1997 Nonqualified Stock Option Plan.
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
with respect to the legality of the securities being registered.
23.1 Consent of Counsel (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (See page 6).
<PAGE>
EXHIBIT 4.1
-----------
STARWAVE CORPORATION
REVISED 1992 COMBINED INCENTIVE AND NONQUALIFIED
STOCK OPTION PLAN
AMENDED AND RESTATED AS OF MARCH 7, 1995
SECTION 1. Background and Purpose of the Plan.
----------------------------------
1.1 BACKGROUND. Pursuant to that certain Agreement and Plan of
Reorganization dated as of June 18, 1998 (the "Reorganization Agreement"), by
and among Infoseek Corporation, a California corporation ("Infoseek
California"), Infoseek Corporation, a Delaware corporation ("Infoseek
Delaware"), Starwave Corporation, a Washington corporation ("Starwave"), and
Disney Enterprises, Inc., a Delaware corporation and the majority shareholder of
Starwave ("DEI"), and the related Agreement and Plan of Merger by and among
Starwave Acquisition Corp., a Washington corporation, Starwave, and Infoseek
Delaware (the "Merger Agreement") dated as of June 18, 1998, Infoseek Delaware
assumed the obligations of Starwave under the Starwave Corporation Revised 1992
Combined Incentive and Nonqualified Stock Option Plan Amended and Restated as of
March 7, 1995 ("the Plan"). This Plan is hereby amended and restated to reflect
assumption by Infoseek Delaware.
1.2 PURPOSE. The purpose of the Plan is to enable Infoseek
Delaware and each parent and subsidiary of Infoseek Delaware (collectively, the
"Company") to attract and retain the services of people with training,
experience and ability and to provide additional incentive to such persons by
granting them an opportunity to participate in the ownership of Infoseek
Delaware.
SECTION 2. STOCK SUBJECT TO PLAN. The stock subject to this Plan shall be
Infoseek Delaware's common stock, par value $.001 per share (the "Common
Stock"), presently authorized but unissued or now held or subsequently acquired
by Infoseek Delaware as treasury shares. Subject to adjustment as provided in
Section 10, the aggregate amount of Common Stock reserved for issuance or
delivery upon exercise of all options granted under this Plan shall not exceed
3,477,384 shares of Common Stock or such lesser number of shares as are subject
to options under the Plan on the date the merger of Starwave Acquisition Corp.
with and into Starwave is consummated as contemplated by the Reorganization
Agreement and the Merger Agreement, as constituted on date of adoption of this
Plan by the Board of Directors of Infoseek Delaware ("Board of Directors"). If
any option granted under this Plan shall expire or terminate for any reason
without having been exercised in full, the unpurchased shares subject thereto
shall thereupon again be available for purposes of this Plan.
SECTION 3. ADMINISTRATION. The Plan shall be administered by the Board of
Directors, in accordance with the following terms and conditions:
3.1 GENERAL AUTHORITY. Subject to the express provisions of the Plan, the
Board of Directors shall have the authority, in its discretion, to determine all
matters relating to options to be granted under the Plan, including the
selection of individuals to be granted options, the number of shares to be
subject to each option, the exercise price, the term, whether such options shall
be immediately exercisable or shall become exercisable in increments over time,
and all other terms and conditions thereof. Grants under this Plan to persons
eligible need not be identical in any respect, even when made simultaneously.
The Board of Directors may from time to time adopt rules and regulations
relating to the administration of the Plan. The interpretation and construction
by the Board of Directors of any terms or provisions of this Plan or any option
issued hereunder, or of any rule or regulation promulgated in connection
herewith, shall be conclusive and binding on all interested parties. The Board
of Directors in its sole discretion, may grant incentive stock options
("Incentive Stock Options") as such term is defined in Section 422 of the
Internal Revenue Code of 1986, as amended, (the "Code") and/or nonqualified
stock options ("Nonqualified Stock Options"). A Nonqualified Stock Option is a
stock option which
<PAGE>
is not an Incentive Stock Option. The type of option granted, whether an
Incentive Stock Option or a Nonqualified Stock Option shall be clearly
identified by the Board of Directors when granted. The term option when used in
this Plan should refer to Incentive Stock Options and Nonqualified Stock
Options, collectively.
3.2 DIRECTORS. A member of the Board of Directors may be eligible to
participate in or receive or hold options under this Plan; provided, however,
that no member of the Board of Directors shall vote with respect to the granting
of an option hereunder to himself or herself, as the case may be.
Notwithstanding the foregoing, any member of the Board of Directors may execute
a unanimous consent (in lieu of meeting of Directors) even though such consent
may have the effect of granting to that Director an option thereunder.
3.3 DELEGATION TO A COMMITTEE. Notwithstanding the foregoing, the Board
of Directors, if it so determines, may delegate to a committee of the Board of
Directors any or all authority for the administration of the Plan, and
thereafter references to the Board of Directors in this Plan shall be deemed to
be references to the committee to the extent provided in the resolution
establishing the committee.
3.4 PERSONS SUBJECT TO SECTION 16(b). Notwithstanding anything in the
Plan to the contrary, the Board of Directors, in its absolute discretion, may
bifurcate the Plan so as to restrict, limit or condition the use of any
provision of the Plan to participants who are officers and directors subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended, (the "1934
Act") without so restricting, limiting or conditioning the Plan with respect to
other participants.
3.5 REPLACEMENT OF OPTIONS. The Board of Directors, in its absolute
discretion, may grant options subject to the condition that options previously
granted at a higher or lower exercise price under the Plan be canceled or
exchanged in connection with such grant. The number of shares covered by the
new options, the exercise price, the term and the other terms and conditions of
the new option, shall be determined in accordance with the Plan and may be
different from the provisions of the canceled or exchanged options.
Alternatively, the Board of Directors may, with the agreement of the Optionee,
amend previously granted options to establish the exercise price at the then
current fair market value of the Company's Common Stock, maintaining existing
vesting and expiration dates.
3.6 LOANS TO OPTIONEES. The Board of Directors, in its absolute
discretion, may provide that the Company loan to Optionees sufficient funds to
exercise any option granted under the Plan and/or to pay withholding tax due
upon exercise of such option. The Board of Directors shall have the authority
to make such determinations at the time of grant or exercise and shall establish
repayment terms thereof, including installments, maturity and interest rate.
SECTION 4. ELIGIBILITY. Options may be granted only to persons who, at
the time the option is granted, are employees, directors, consultants or
independent contractors of Infoseek Delaware or any of its present or future
parent or subsidiary corporations (as those terms are used in Section 422(a)(2)
and (d)(1) and Section 424(e) and (f) of the Code. Any individual to whom an
option is granted under this Plan shall be referred to hereinafter as
"Optionee". Any Optionee may receive one or more grants of options as the Board
of Directors shall from time to time determine, and such determinations may be
different as to different Optionees and may vary as to different grants.
Optionees who are not employees will only be eligible to receive Nonqualified
Stock Options.
SECTION 5. TERMS AND CONDITIONS OF OPTIONS. Options granted under this
Plan shall be evidenced by written agreements which shall contain such terms,
conditions, limitations and restrictions as the Board of Directors shall deem
advisable and which are not inconsistent with this Plan. Each option granted
hereunder shall clearly indicate whether it is an Incentive Stock Option or a
Nonqualified Stock Option. Notwithstanding the foregoing, all such options
shall include or incorporate by reference the following terms and conditions:
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<PAGE>
5.1 NUMBER OF SHARES. The maximum number of shares that may be purchased
pursuant to the exercise of each option and the price per share at which such
option is exercisable (the "exercise price") shall be as established by the
Board of Directors, provided that the exercise price of Incentive Stock Options
shall not be less than the fair market value per share of the Common Stock at
the time the option is granted, as determined in good faith by the Board of
Directors. The exercise price of Nonqualified Stock Options may be greater or
less than the fair market value per share of the Common Stock at the time the
option is granted.
5.2 DURATION OF OPTIONS. Subject to the restrictions contained in Section
9, the term of each option shall be established by the Board of Directors and,
if not so established, shall be ten years from the date it is granted, but in no
event shall the term of any Incentive Stock Option exceed ten years.
5.3 EXERCISABILITY. The Board of Directors in its absolute discretion
may, at the time of grant of any option or at any time thereafter, require that
all options granted to any individual pursuant to the Plan, whether granted at
one time or at more than one time, shall be exercised at one time only. Such
exercise may be for all or less than all of the options held by such individual
pursuant to the Plan, but upon such first exercise, all unexercised options
shall thereupon expire and be of no further force or effect. The foregoing
shall also apply to options which may be granted but not vested, such that an
exercise of some or all vested options by an individual shall have the effect of
terminating all unvested as well as any remaining unexercised vested options.
The Board of Directors, in its absolute discretion, may waive or accelerate any
installment requirement contained in outstanding options. In no case may an
option be exercised as to less than 100 shares at any one time (or the remaining
shares covered by the option if less than 100) during the term of the option.
Only whole shares shall be issued pursuant to the exercise of any option.
5.4 INCENTIVE STOCK OPTION. Any option which is issued as an Incentive
Stock Option under this Plan, shall, notwithstanding any other provisions of
this Plan or the option terms to the contrary, contain all of the terms,
conditions, restrictions, rights and limitations required to be an Incentive
Stock Option, and any provision to the contrary shall be disregarded.
SECTION 6. NONTRANSFERABILITY OF OPTIONS. Options granted under this Plan
and the rights and privileges conferred hereby may not be transferred, assigned,
pledged or hypothecated in any manner (whether by operation of law or otherwise)
other than by will or the applicable laws of descent and distribution, and shall
not be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of any option under
this Plan or any right or privilege conferred hereby, contrary to the provisions
hereof, or upon the sale or levy or any attachment or similar process, such
option thereupon shall terminate and become null and void. During an Optionee's
lifetime, any options granted under this Plan are personal to him or her and are
exercisable solely by such Optionee.
SECTION 7. CERTAIN LIMITATIONS REGARDING INCENTIVE STOCK OPTIONS. The
grant of Incentive Stock Options shall be subject to the following special
limitations:
7.1 LIMITATION ON AMOUNT OF GRANTS. In no event shall any Optionee be
granted Incentive Stock Options that in the aggregate (together with all other
Incentive Stock Options granted by Infoseek Delaware or any Parents or
Subsidiaries) entitle the Optionee to purchase, in any calendar year during
which such options first become exercisable, stock of Infoseek Delaware, any
Parent or any Subsidiary having a fair market value (determined as of the time
such options are granted) in excess of $100,000, plus the amount of any unused
limit carry-over permitted under the applicable provisions of the Code. No
limitation shall apply to Nonqualified Stock Options.
7.2 GRANTS TO 10% SHAREHOLDERS. Incentive Stock Options may be granted to
a person owning more than 10% of the total combined voting power of all classes
of stock of Infoseek Delaware and any Parent or
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<PAGE>
Subsidiary only if (i) the exercise price is at least 110% of the fair market
value of the stock at the time of grant, and (ii) the option is not exercisable
after the expiration of five years from the date of grant.
SECTION 8. EXERCISE OF OPTIONS. Options shall be exercised in accordance
with the following terms and conditions:
8.1 PROCEDURE. Options shall be exercised by delivery to the Company of
written notice of the number of shares with respect to which the option is
exercised.
8.2 PAYMENT. Payment of the option price shall be made in full within 5
business days of the notice of exercise of the option and shall be in cash or
bank-certified or cashier's checks, or personal check if permitted by the Board
of Directors. To the extent permitted by applicable laws and regulations
(including, but not limited to, federal tax and securities laws and
regulations), an option may be exercised by delivery of shares of Common Stock
of Infoseek Delaware held by the Optionee having a fair market value equal to
the exercise price, such fair market value to be determined in good faith by the
Board of Directors. Such payment in stock may occur in the context of a single
exercise of an option or successive and simultaneous exercises, sometimes
referred to as "pyramiding", which provides that, rather than physically
exchanging certificates for a series of exercises, bookkeeping entries will be
made pursuant to which the Optionee is permitted to retain his existing stock
certificate and a new stock certificate is issued for the net shares.
If Infoseek Delaware's Common Stock is registered under the 1934 Act, and
if permitted by the Board of Directors, and to the extent permitted by
applicable laws and regulations, (including, but not limited to, federal tax and
securities laws and regulations) an option also may be exercised by delivery of
a properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company the amount of sale or loan proceeds to
pay the exercise price.
8.3 FEDERAL WITHHOLDING TAX REQUIREMENTS. Upon exercise of an option, the
Optionee shall, upon notification of the amount due and prior to or concurrently
with the delivery of the certificates representing the shares, pay to the
Company amounts necessary to satisfy applicable federal, state and local
withholding tax requirements or shall otherwise make arrangements satisfactory
to the Company for such requirements. Such arrangements may include payment of
the appropriate withholding tax in shares of stock of Infoseek Delaware having a
fair market value equal to such withholding tax, either through delivery of
shares held by the Optionee or by reduction in the number of shares to be
delivered to the Optionee upon exercise of such option.
SECTION 9. TERMINATION OF EMPLOYMENT, DISABILITY AND DEATH.
9.1 GENERAL. If the employment of the Optionee by the Company shall
terminate by retirement or for any reason other than death, disability or cause
as hereinafter provided, the option may be exercised by the Optionee at any time
prior to the expiration of 30 days after the date of such termination of
employment (unless by its terms the option sooner terminates or expires), but
only if, and to the extent the Optionee was entitled to exercise the option at
the date of such termination.
9.2 DISABILITY. If the employment of the Optionee by the Company is
terminated because of the Optionee's disability (as herein defined), the option
may be exercised by the Optionee at any time prior to the expiration of one year
after the date of such termination (unless by its terms the option sooner
terminates or expires), but only if, and to the extent the Optionee was entitled
to exercise the option at the date of such termination. For purposes of this
section, an Optionee will be considered to be disabled if the Optionee is unable
to engage in any substantial gainful activity by reason of any medically
determinable mental or physical impairment which can be expected to result in
death or which has lasted or can be expected to last a continuous period of not
less than 12 months.
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<PAGE>
9.3 DEATH. In the event of the death of an Optionee while in the employ
of the Company, the option shall be exercisable on or prior to the expiration of
one year after the date of such death (unless by its terms the option sooner
terminates and expires), but only if and to the extent the Optionee was entitled
to exercise the option at date of such death and only by the Optionee's personal
representative if then subject to administration as part of the Optionee's
estate, or by the person or persons to whom such Optionee's rights under the
option shall have passed by the Optionee's will or by the applicable laws of
descent and distribution.
9.4 TERMINATION FOR CAUSE. If the Optionee's employment with the Company
is terminated for cause, any option granted hereunder shall automatically
terminate as of the first advice or discussion thereof, and such Optionee shall
thereupon have no right to purchase any shares pursuant to such option.
"Termination for Cause" shall mean dismissal for dishonesty, conviction or
confession of a crime punishable by law (except minor violations), intoxication
while at work, fraud, misconduct or disclosure of confidential information.
9.5 WAIVER OR EXTENSION OF TIME PERIODS. The Board of Directors shall
have the authority, prior to or within the times specified in this Section 9 for
the exercise of any such option, to extend such time period or waive in its
entirety any such time period to the extent that such time period expires prior
to the expiration of the term of such option. In addition, the Board of
Directors may grant, pursuant to a specific resolution adopted at the time of
grant, modify or eliminate the time periods specified in this Section 9.
However, no Incentive Stock Option may be exercised after the expiration of ten
(10) years from the date such option is granted. If an Optionee holding an
Incentive Stock Option exercises such option, by permission, after the
expiration of the time period specified in this Section 9, the option will no
longer be treated as an Incentive Stock Option under the Code and shall
automatically be converted into a Nonqualified Stock Option.
9.6 TERMINATION OF OPTIONS. To the extent that the option of any deceased
Optionee or of any Optionee whose employment is terminated shall not have been
exercised within the limited periods prescribed in this Section 9, all further
rights to purchase shares pursuant to such option shall cease and terminate at
the expiration of such period. No Incentive Stock Option may be exercised after
the expiration of ten (10) years from the date such option is granted,
notwithstanding any provision to the contrary.
9.7 NON-EMPLOYEE OPTIONEES. Options granted to Optionees who are not
employees of the Company at the time of grant shall not be subject to the
provisions of this Section 9, except as specifically provided in the option.
SECTION 10. OPTION ADJUSTMENTS.
10.1 ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. The aggregate number and
class of shares on which options may be granted under this Plan, the number and
class of shares covered by each outstanding option and the exercise price per
share thereof (but not the total price), and all such options, shall each be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock of Infoseek Delaware resulting from a split-up or
consolidation of shares or any like capital adjustment, or the payment of any
stock dividend, or any other increase or decrease in the number of shares of
Common Stock of Infoseek Delaware without the receipt of consideration by
Infoseek Delaware.
10.2 EFFECT OF CERTAIN TRANSACTIONS. Except as provided in subsection
10.3, upon a merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation of Infoseek Delaware, as a result of
which the shareholders of Infoseek Delaware receive cash, stock or other
property in exchange for their shares of Common Stock, any option granted
hereunder shall terminate, but, provided that the Optionee shall have the right
immediately prior to any such merger, consolidation, acquisition of property or
stock, separation, reorganization or liquidation to exercise his or her option
in whole or in part whether or not the vesting requirements set forth in the
option agreement have been satisfied.
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10.3 CONVERSION OF OPTIONS ON STOCK FOR STOCK EXCHANGE. If the
shareholders of Infoseek Delaware receive capital stock of another corporation
("Exchange Stock") in exchange for their shares of Common Stock in any
transaction involving a merger, consolidation, acquisition of property or stock,
separation or reorganization, all options granted hereunder shall terminate in
accordance with the provision of subsection 10.2 unless the Board of Directors
and the corporation issuing the Exchange Stock, in their sole and arbitrary
discretion and subject to any required action by the shareholders of Infoseek
Delaware and such corporation, agree that all such options granted hereunder are
converted into options to purchase shares of Exchange Stock. The amount and
price of the such options shall be determined by adjusting the amount and price
of the options granted hereunder in the same proportion as used for determining
the number of shares of Exchange Stock the holders of the Common Stock receive
in such merger, consolidation, acquisition of property or stock, separation or
reorganization. The vesting schedule set forth in the option agreement shall
continue to apply to the options granted for the Exchange Stock.
10.4 FRACTIONAL SHARES. In the event of any adjustment in the number of
shares covered by any option, any fractional shares resulting from such
adjustment shall be disregarded and each such option shall cover only the number
of full shares resulting from such adjustment.
10.5 DETERMINATION OF BOARD OF DIRECTORS TO BE FINAL. All such
adjustments shall be made by the Board of Directors and its determination as to
what adjustments shall be made, and the extent thereof, shall be final, binding
and conclusive.
SECTION 11. SECURITIES REGULATIONS.
11.1 COMPLIANCE. Shares shall not be issued with respect to an option
granted under this Plan unless the exercise of such option and the issuance and
delivery of such shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, any applicable state
securities laws, the Securities Act of 1933, as amended, the 1934 Act, the rules
and regulations promulgated thereunder, and the requirements of any stock
exchange upon which the shares may then be listed, and shall further be subject
to the approval of counsel for Infoseek Delaware with respect to such
compliance. Inability of Infoseek Delaware to obtain from any regulatory body
having jurisdiction, the authority deemed by Infoseek Delaware's counsel to be
necessary for the lawful issuance and sale of any shares hereunder, shall
relieve Infoseek Delaware of any liability in respect of the nonissuance or sale
of such shares as to which such requisite authority shall not have been
obtained.
11.2 REPRESENTATIONS BY OPTIONEE. As a condition to the exercise of an
option, Infoseek Delaware may require the Optionee to represent and warrant at
the time of any such exercise that the shares are being purchased only for
investment and without any present intention to sell or distribute such shares,
if, in the opinion of counsel for Infoseek Delaware, such representation is
required by any relevant provision of the laws referred to in Section 11.1. At
the option of Infoseek Delaware, a stop transfer order against any shares of
stock may be placed on the official stock books and records of Infoseek
Delaware, and a legend indicating that the stock may not be pledged, sold or
otherwise transferred unless an opinion of counsel was provided (concurred in by
counsel for Infoseek Delaware) stating that such transfer is not in violation of
any applicable law or regulation, may be stamped on the stock certificate in
order to assure exemption from registration. The Board of Directors may also
require such other action or agreement by the Optionees as may from time to time
be necessary to comply with the federal and state securities laws. This
provision shall not obligate Infoseek Delaware to undertake registration of
options or stock hereunder.
SECTION 12. EMPLOYMENT RIGHTS. Nothing in this Plan or any option or right
granted pursuant hereto shall confer upon any Optionee any right to be continued
in the employment of the Company, a Parent or any Subsidiary of the Company or
to remain a director, or to interfere in any way with the right of the Company,
a
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Parent or any Subsidiary, in its sole discretion, to terminate such Optionee's
employment at any time or to remove the Optionee as a director at any time.
SECTION 13. AMENDMENT AND TERMINATION.
13.1 ACTION BY SHAREHOLDERS. The Plan may be terminated, modified or
amended by the shareholders of Infoseek Delaware.
13.2 ACTION BY BOARD OF DIRECTORS. The Board of Directors may also
terminate the Plan, or modify or amend the Plan in such respects as it shall
deem advisable in order to conform to any changes in law or regulation
applicable thereto, or in other respects; provided, however, that the Board of
Directors may not, without further approval by the shareholders of Infoseek
Delaware:
(a) Change the number of shares in the aggregate which may be sold
pursuant to options granted under the Plan;
(b) Increase the period during which options may be granted or
exercised; or
(c) Change the terms of the Plan which causes the Plan to lose its
qualification as an incentive stock option plan under Section 422 of the Code.
No termination, suspension or amendment of the Plan may, without the consent of
each Optionee to whom any option shall theretofore have been granted, adversely
affect the rights of such Optionees under such options.
13.3 AUTOMATIC TERMINATION. Unless the Plan shall theretofore have been
terminated as herein provided, this Plan shall terminate ten (10) years from the
earlier of: (i) the date on which the Plan is adopted; or (ii) the date on
which this Plan is approved by the shareholders of the Company. No option may
be granted after such termination, or during any suspension of this Plan. The
amendment or termination of this Plan shall not, without the consent of the
Optionee, alter or impair any rights or obligations under any option theretofore
granted under this Plan.
SECTION 14. DELETED
SECTION 15. EFFECTIVE DATE OF THE PLAN. This Plan shall become effective on
the date of its adoption by the Board of Directors of the Company and options
may be granted immediately thereafter but no option may be exercised under the
Plan unless and until the Plan shall have been approved by the shareholders
within 12 months after the date of adoption of the Plan by the Board of
Directors. If such approval is not obtained within such period the Plan and any
options granted thereunder shall be null and void.
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EXHIBIT 4.2
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STARWAVE CORPORATION
1997 NONQUALIFIED STOCK OPTION PLAN
SECTION 1. PURPOSE
1.1 BACKGROUND
Pursuant to that certain Agreement and Plan of Reorganization dated as of
June 18, 1998 (the "Reorganization Agreement"), by and among Infoseek
Corporation, a California corporation ("Infoseek California"), Infoseek
Corporation, a Delaware corporation ("Infoseek Delaware"), Starwave Corporation,
a Washington corporation ("Starwave"), and Disney Enterprises, Inc., a Delaware
corporation and the majority shareholder of Starwave ("DEI"), and the related
Agreement and Plan of Merger by and among Starwave Acquisition Corp., a
Washington corporation, Starwave, and Infoseek Delaware (the "Merger Agreement")
dated as of June 18, 1998, Infoseek Delaware assumed the obligations of Starwave
under the Starwave Corporation 1997 Nonqualified Stock Option Plan Amended and
Restated as of March 7, 1995 ("the Plan"). This Plan is hereby amended and
restated to reflect such assumption by Infoseek Delaware.
1.2 PURPOSE
The purpose of the Plan is to enhance the long-term shareholder value of
Infoseek Delaware and its Subsidiaries (as defined in Section 2) (collectively,
the "Company"), by offering opportunities to employees, directors, officers,
consultants, agents, advisors and independent contractors of the Company to
participate in the Company's growth and success, and to encourage them to remain
in the service of the Company and to acquire and maintain stock ownership in
Infoseek Delaware.
SECTION 2. DEFINITIONS
For purposes of the Plan, the following terms shall be defined as set forth
below:
2.1 BOARD
"Board" means the Board of Directors of Infoseek Delaware.
2.2 CAUSE
"Cause" means dishonesty, fraud, misconduct, unauthorized use or disclosure
of confidential information or trade secrets, or conviction or confession of a
crime punishable by law (except minor violations), in each case as determined by
the Plan Administrator, and its determination shall be conclusive and binding.
2.3 CODE
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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2.4 COMMON STOCK
"Common Stock" means the Common Stock, par value $.001 per share, of
Infoseek Delaware.
2.5 CORPORATE TRANSACTION
"Corporate Transaction" means any of the following events:
(a) Consummation of any merger or consolidation of Infoseek Delaware in
which Infoseek Delaware is not the continuing or surviving corporation, or
pursuant to which shares of the Common Stock are converted into cash,
securities or other property, if following such merger or consolidation the
holders of Infoseek Delaware's outstanding voting securities immediately
prior to such merger or consolidation own less than 66-2/3% of the
outstanding voting securities of the surviving corporation; or
(b) Consummation of any sale, lease, exchange or other transfer in one
transaction or a series of related transactions of all or substantially all
of Infoseek Delaware's assets other than a transfer of Infoseek Delaware's
assets to a majority-owned subsidiary corporation of Infoseek Delaware.
2.6 DISABILITY
"Disability" means "disability" as that term is defined for purposes of
Section 22(e)(3) of the Code.
2.7 EARLY RETIREMENT
"Early Retirement" means early retirement as that term is defined by the
Plan Administrator from time to time for purposes of the Plan.
2.8 EXCHANGE ACT
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
2.9 FAIR MARKET VALUE
"Fair Market Value" shall be as established in good faith by the Plan
Administrator or (a) if the Common Stock is listed on The Nasdaq National
Market, the closing selling price for the Common Stock as reported by The Nasdaq
National Market for a single trading day or (b) if the Common Stock is listed on
the New York Stock Exchange or the American Stock Exchange, the closing selling
price for the Common 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 Common Stock for the date in question, then such
price on the last preceding date for which such price exists shall be
determinative of Fair Market Value.
2.10 GRANT DATE
"Grant Date" means the date the Plan Administrator adopted the granting
resolution or a later date designated in a resolution of the Plan Administrator
as the date an Option is to be granted.
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2.11 INCENTIVE STOCK OPTION
"Incentive Stock Option" means an Option to purchase Common Stock granted
with the intention that it qualify as an "incentive stock option" as that term
is defined in Section 422 of the Code.
2.12 NONQUALIFIED STOCK OPTION
"Nonqualified Stock Option" means an Option to purchase Common Stock
granted under Section 7 not intended to qualify as an Incentive Stock Option.
2.13 OPTION
"Option" means the right to purchase Common Stock granted under Section 7.
2.14 OPTIONEE
"Optionee" means (i) the person to whom an Option is granted; (ii) for an
Optionee who has died, the personal representative of the Optionee's estate, the
person(s) to whom the Optionee's rights under the Option have passed by will or
by the applicable laws of descent and distribution, or the beneficiary
designated in accordance with Section 9; or (iii) person(s) to whom an Option
has been transferred in accordance with Section 9.
2.15 PLAN ADMINISTRATOR
"Plan Administrator" means the Board or any committee of the Board
designated to administer the Plan under Section 3.1.
2.16 RETIREMENT
"Retirement" means retirement as of the individual's normal retirement date
under the Company's 401(k) Plan or other similar successor plan applicable to
salaried employees or, if no such plan exists, as that term is defined by the
Plan Administrator from time to time for purposes of the Plan.
2.17 SECURITIES ACT
"Securities Act" means the Securities Act of 1933, as amended.
2.18 SUBSIDIARY
"Subsidiary" means any entity that is directly or indirectly controlled by
Infoseek Delaware or in which Infoseek Delaware has a significant ownership
interest, as determined by the Plan Administrator in its sole discretion, and
any entity that may become a direct or indirect parent of Infoseek Delaware.
2.19 SUCCESSOR CORPORATION
"Successor Corporation" has the meaning set forth under Section 9.2.
SECTION 3. ADMINISTRATION
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3.1 PLAN ADMINISTRATOR
The Plan shall be administered by the Board or a committee or committees
(which term includes subcommittees) appointed by, and consisting of two or more
members of, the Board. 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 of the Plan with respect to any persons subject or likely to
become subject to Section 16 under the Exchange Act the provisions regarding (a)
"outside directors" as contemplated by Section 162(m) of the Code and (b)
"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 Optionees to different committees,
subject to such limitations as the Board deems appropriate. Committee members
shall serve for such term as the Board may determine, subject to removal by the
Board at any time.
3.2 ADMINISTRATION AND INTERPRETATION BY THE PLAN ADMINISTRATOR
Except for the terms and conditions explicitly set forth in the Plan, the
Plan Administrator shall have exclusive authority, in its discretion, to
determine all matters relating to Options under the Plan, including the
selection of individuals to be granted Options, number of shares of Common Stock
subject to an Option, all terms, conditions, restrictions and limitations, if
any, of an Option and the terms of any instrument that evidences the Option. The
Plan Administrator shall also have exclusive authority to interpret the Plan and
may from time to time adopt, and change, rules and regulations of general
application for the Plan's administration. The Plan Administrator's
interpretation of the Plan and its rules and regulations, and all actions taken
and determinations made by the Plan Administrator pursuant to the Plan, shall be
conclusive and binding on all parties involved or affected. The Plan
Administrator may delegate administrative duties to such of the Company's
officers as it so determines.
SECTION 4. STOCK SUBJECT TO THE PLAN
4.1 AUTHORIZED NUMBER OF SHARES
Subject to adjustment from time to time as provided in Section 9.1, a
maximum of 4,845,917 shares of Common Stock, or such lesser number of shares
as are subject to Options under the Plan on the date of the merger of Starwave
Acquisition Corp. with and into Starwave as contemplated by the Reorganization
Agreement and the Merger Agreement, shall be available for issuance under the
Plan. Shares issued under the Plan shall be drawn from authorized and unissued
shares.
4.2 REUSE OF SHARES
Any shares of Common Stock that have been made subject to an Option that
cease to be subject to the Option (other than by reason of exercise of the
Option to the extent it is exercised for or settled in shares) shall again be
available for issuance in connection with future grants of Options under the
Plan.
SECTION 5. ELIGIBILITY
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Options may be granted under the Plan to those officers, directors and key
employees of the Company and as the Plan Administrator from time to time
selects. Options may also be granted to consultants, agents, advisors and
independent contractors who provide services to the Company.
SECTION 6. AWARDS
6.1 FORM AND GRANT OF OPTIONS
The Plan Administrator shall have the authority, in its sole discretion, to
determine the awards to be made under the Plan. Such awards shall be
Nonqualified Stock Options and not Incentive Stock Options. Options may be
granted singly or in combination.
6.2 ACQUIRED COMPANY OPTIONS
Notwithstanding anything in the Plan to the contrary, the Plan
Administrator may grant Options under the Plan in substitution for awards issued
under other plans, or assume under the Plan awards issued under other plans, if
the other plans are or were plans of other acquired entities ("Acquired
Entities") (or the parent of the Acquired Entity) and the new Option is
substituted, or the old award is assumed, by reason of a merger, consolidation,
acquisition of property or of stock, reorganization or liquidation (the
"Acquisition Transaction"). In the event that a written agreement pursuant to
which the Acquisition Transaction is completed is approved by the Board and said
agreement sets forth the terms and conditions of the substitution for or
assumption of outstanding awards of the Acquired Entity, said terms and
conditions shall be deemed to be the action of the Plan Administrator without
any further action by the Plan Administrator, except as may be required for
compliance with Rule 16b-3 under the Exchange Act, and the persons holding such
Options shall be deemed to be Optionees.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS
7.1 GRANT OF OPTIONS
The Plan Administrator is authorized under the Plan, in its sole
discretion, to issue Nonqualified Stock Options which shall be appropriately
designated.
7.2 OPTION EXERCISE PRICE
The exercise price for shares purchased under an Option shall be as
determined by the Plan Administrator.
7.3 TERM OF OPTIONS
The term of each Option shall be as established by the Plan Administrator
or, if not so established, shall be 10 years from the Grant Date.
7.4 EXERCISE OF OPTIONS
The Plan Administrator shall establish and set forth in each instrument
that evidences an Option the time at which or the installments in which the
Option shall become exercisable, which provisions may be waived or modified by
the Plan Administrator at any time. If not so established in the instrument
evidencing the Option, the Option will become exercisable according to the
following schedule, which may be waived or modified by the Plan Administrator at
any time:
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Period of Optionee's Continuous Employment
or Service With the Company From the Portion of Total Option
Option Grant Date That Is Exercisable
----------------- -------------------
After 1 year 25%
Each one-month period of continuous service
completed thereafter An additional 1/48
-------------------- ------------------
After 4 years 100%
To the extent that the right to purchase shares has accrued thereunder, an
Option may be exercised from time to time by written notice to the Company, in
accordance with procedures established by the Plan Administrator, setting forth
the number of shares with respect to which the Option is being exercised and
accompanied by payment in full as described in Section 7.5. The Plan
Administrator may determine at any time that an Option may not be exercised as
to less than 100 shares at any one time (or the lesser number of remaining
shares covered by the Option).
7.5 PAYMENT OF EXERCISE PRICE
The exercise price for shares purchased under an Option shall be paid
in full to the Company by delivery of consideration equal to the product of the
Option exercise price and the number of shares purchased. Such consideration
must be paid in cash or by check, or, unless the Plan Administrator in its sole
discretion determines otherwise, either at the time the Option is granted or at
any time before it is exercised, a combination of cash and/or check (if any) and
one or both of the following alternative forms: (a) tendering (either actually
or, if and so long as the Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act, by attestation) Common Stock already 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) having a Fair
Market Value on the day prior to the exercise date equal to the aggregate Option
exercise price or (b) if and so long as the Common Stock is registered under
Section 12(b) or 12(g) of the Exchange Act, delivery of a properly executed
exercise notice, together with irrevocable instructions, to (i) a brokerage firm
designated by the Company to deliver promptly to the Company the aggregate
amount of sale or loan proceeds to pay the Option exercise price and any
withholding tax obligations that may arise in connection with the exercise and
(ii) the Company to deliver the certificates for such purchased shares directly
to such brokerage firm, all in accordance with the regulations of the Federal
Reserve Board. In addition, to the extent permitted by the Plan Administrator
in its sole discretion, the exercise price for shares purchased under an Option
may be paid, either singly or in combination with one or more of the alternative
forms of payment authorized by this Section 7.5, by such other consideration as
the Plan Administrator may permit.
7.6 POST-TERMINATION EXERCISES
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, which provisions may be waived or
modified by the Plan Administrator at any time. If not so established in the
instrument evidencing the Option, the Option will be exercisable according to
the following terms and conditions, which may be waived or modified by the Plan
Administrator at any time.
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In case of termination of the Optionee's employment or services other than
by reason of death or Cause, the Option shall be exercisable, to the extent of
the number of shares purchasable by the Optionee at the date of such
termination, only (a) within 120 days if the termination of the Optionee's
employment or services are coincident with Retirement, Early Retirement at the
Company's request or Disability or (b) within three months after the date the
Optionee ceases to be an employee, director, officer, consultant, agent, advisor
or independent contractor of the Company if termination of the Optionee's
employment or services is for any reason other than Retirement, Early Retirement
at the Company's request or Disability, but in no event later than the remaining
term of the Option. Any Option exercisable at the time of the Optionee's death
may be exercised, to the extent of the number of shares purchasable by the
Optionee at the date of the Optionee's death, by the personal representative of
the Optionee's estate, the person(s) to whom the Optionee's rights under the
Option have passed by will or the applicable laws of descent and distribution or
the beneficiary designated pursuant to Section 8 at any time or from time to
time within one year after the date of death, but in no event later than the
remaining term of the Option. Any portion of an Option that is not exercisable
on the date of termination of the Optionee's employment or services shall
terminate on such date, unless the Plan Administrator determines otherwise. In
case of termination of the Optionee's employment or services for Cause, the
Option shall automatically terminate upon first notification to the Optionee of
such termination, unless the Plan Administrator determines otherwise. If an
Optionee's employment or services with the Company are suspended pending an
investigation of whether the Optionee shall be terminated for Cause, all the
Optionee's rights under any Option likewise shall be suspended during the period
of investigation.
A transfer of employment or services between or among the Company shall not
be considered a termination of employment or services. The effect of a Company-
approved leave of absence on the terms and conditions of an option shall be
determined by the Plan Administrator, in its sole discretion.
SECTION 8. ASSIGNABILITY
No Option granted under the Plan may be assigned or transferred by the
Optionee other than by will or by the laws of descent and distribution, and
during the Optionee's lifetime, such Options may be exercised only by the
Optionee or a permitted assignee or transferee of the Optionee (as provided
below). Notwithstanding the foregoing, the Plan Administrator, in its sole
discretion, may permit such assignment, transfer 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 assigned or
transferred shall be subject to all the same terms and conditions contained in
the instrument evidencing the Option.
SECTION 9. ADJUSTMENTS
9.1 ADJUSTMENT OF SHARES
In the event that, at any time or from time to time, a stock dividend,
stock split, spin-off, combination or exchange of shares, recapitalization,
merger, consolidation, distribution to shareholders other than a cash dividend,
or other change in Infoseek Delaware's corporate or capital structure results in
(a) the outstanding shares of Common Stock, or any securities exchanged therefor
or received in their place, being exchanged for a different number or class of
securities of Infoseek Delaware or of any other corporation or (b) new,
different or additional securities of Infoseek Delaware or of any other
corporation being received by the holders of shares of Common Stock of Infoseek
Delaware then the Plan Administrator, in its sole discretion, shall make such
equitable adjustments as it shall deem appropriate in the circumstances in (i)
the maximum number and class of securities subject to the Plan as set forth in
Section 4.1, and (ii) the number and class of securities that are subject to any
outstanding Option and the
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per share price of such securities, without any change in the aggregate price to
be paid therefor. The determination by the Plan Administrator as to the terms of
any of the foregoing adjustments shall be conclusive and binding.
9.2 CORPORATE TRANSACTION
(a) Except as otherwise provided in the instrument that evidences the
Option, in the event of any Corporate Transaction in which shareholders of the
Company receive capital stock of a successor corporation or parent thereof (the
"Successor Corporation") in exchange for their shares of Common Stock, each
Option that is at the time outstanding shall automatically accelerate so that
each such Option shall, immediately prior to the specified effective date for
the Corporate Transaction, become 100% vested, except that such acceleration
will not occur, if in the opinion of Infoseek Delaware's accountants, it would
render unavailable "pooling of interest" accounting for a Corporate Transaction
that would otherwise qualify for such accounting treatment. Such Option shall
not so accelerate, however, if such Option is assumed or an equivalent Option is
substituted by the Successor Corporation. All such Options shall terminate and
cease to remain outstanding immediately following the consummation of the
Corporate Transaction, except to the extent assumed by the Successor
Corporation.
(b) Except as otherwise provided in the instrument that evidences the
Option, in the event of a proposed dissolution or liquidation of Infoseek
Delaware, outstanding Options will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the Plan
Administrator. In such a situation, the Plan Administrator is authorized to
accelerate each Option so that each Option becomes 100% vested.
9.3 FURTHER ADJUSTMENT OF OPTIONS
Subject to the preceding Section 9.2, the Plan Administrator shall have the
discretion, exercisable at any time before a sale, merger, consolidation,
reorganization, liquidation or change in control of Infoseek Delaware, as
defined by the Plan Administrator, to take such further action as it determines
to be necessary or advisable, and fair and equitable to Optionees, with respect
to Options. Such authorized action may include (but shall not be limited to)
establishing, amending or waiving the type, terms, conditions or duration of, or
restrictions on, Options so as to provide for earlier, later, extended or
additional time for exercise, lifting restrictions and other modifications, and
the Plan Administrator may take such actions with respect to all Optionees, to
certain categories of Optionees or only to individual Optionees. The Plan
Administrator may take such actions before or after granting Options to which
the action relates and before or after any public announcement with respect to
such sale, merger, consolidation, reorganization, liquidation or change in
control that is the reason for such action.
9.4 LIMITATIONS
The grant of Options will in no way affect Infoseek Delaware's right to
adjust, reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer all
or any part of its business or assets.
SECTION 10. WITHHOLDING
The Company may require the Optionee to pay to the Company the amount of
any withholding taxes that the Company is required to withhold with respect to
the exercise of any Option. Subject to the Plan
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and applicable law and unless the Plan Administrator determines otherwise, the
Optionee may satisfy withholding obligations, in whole or in part, by paying
cash, by electing to have the Company withhold shares of Common Stock or by
transferring shares of Common Stock to the Company, in such amounts as are
equivalent to the Fair Market Value of the withholding obligation. The Company
shall have the right to withhold from any shares of Common Stock issuable
pursuant to an Option or from any cash amounts otherwise due or to become due
from the Company to the Optionee an amount equal to such taxes. The Company may
also deduct from any Option any other amounts due from the Optionee to the
Company.
SECTION 11. AMENDMENT AND TERMINATION OF PLAN
11.1 AMENDMENT OF PLAN
The Plan may be amended only by the Board as it shall deem advisable;
however, shareholder approval will be required for any amendment that will
require shareholder approval under any applicable law or regulation.
11.2 TERMINATION OF PLAN
Infoseek Delaware's shareholders or the Board may suspend or terminate the
Plan at any time. The Plan will have no fixed expiration date.
11.3 CONSENT OF OPTIONEE
The amendment or termination of the Plan shall not, without the consent of
the Optionee, materially impair or diminish any rights or obligations under any
Option theretofore granted under the Plan.
SECTION 12. GENERAL
12.1 OPTION AGREEMENTS
Options granted under the Plan shall be evidenced by a written agreement
which shall contain such terms, conditions, limitations and restrictions as the
Plan Administrator shall deem advisable and which are not inconsistent with the
Plan.
12.2 CONTINUED EMPLOYMENT OR SERVICES; RIGHTS IN OPTIONS
None of the Plan, participation in the Plan as an Optionee or any action of
the Plan Administrator taken under the Plan shall be construed as giving any
Optionee or employee of the Company any right to be retained in the employ of
the Company or limit the Company's right to terminate the employment or services
of the Optionee.
12.3 REGISTRATION; CERTIFICATES FOR SHARES
Infoseek Delaware shall be under no obligation to any Optionee to register
for offering or resale or to qualify for exemption under the Securities Act, or
to register or qualify under state securities laws, any
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shares of Common Stock, security or interest in a security paid or issued under,
or created by, the Plan, or to continue in effect any such registrations or
qualifications if made. Infoseek Delaware may issue certificates for shares with
such legends and subject to such restrictions on transfer and stop-transfer
instructions as counsel for Infoseek Delaware deems necessary or desirable for
compliance by Infoseek Delaware with federal and state securities laws.
Inability of Infoseek Delaware to obtain, from any regulatory body having
jurisdiction, or from any stock exchange or the National Association of
Securities Dealers, Inc., the authority deemed by Infoseek Delaware's counsel to
be necessary for the lawful issuance and sale of any shares hereunder or the
unavailability of an exemption from registration for the issuance and sale of
any shares hereunder shall relieve Infoseek Delaware of any liability in respect
of the nonissuance or sale of such shares as to which such requisite authority
shall not have been obtained.
As a condition to the exercise of an Option under the Plan, Infoseek
Delaware may require the Optionee to represent and warrant at the time of any
such exercise or receipt that such shares are being purchased only for the
Optionee's own account and without any present intention to sell or distribute
such shares if, in the opinion of counsel for Infoseek Delaware, such a
representation is required by any relevant provision of the aforementioned laws.
At the option of Infoseek Delaware, a stop-transfer order against any such
shares may be placed on the official stock books and records of Infoseek
Delaware and a legend indicating that such shares may not be pledged, sold or
otherwise transferred, unless an opinion of counsel is provided (concurred in by
counsel for Infoseek Delaware) stating that such transfer is not in violation of
any applicable law or regulation, may be stamped on stock certificates in order
to assure exemption from registration. The Plan Administrator may also require
such other action or agreement by the Optionees as may from time to time be
necessary to comply with the federal and state securities laws.
12.4 NO RIGHTS AS A SHAREHOLDER
No Option shall entitle the Optionee to any cash dividend, voting or other
right of a shareholder unless and until the date of issuance under the Plan of
the shares that are the subject of such Option, free of all applicable
restrictions.
12.5 COMPLIANCE WITH LAWS AND REGULATIONS
It is Infoseek Delaware's intention that, if and so long as any of Infoseek
Delaware's equity securities are registered pursuant to Section 12(b) or 12(g)
of the Exchange Act, the Plan shall comply in all respects with Rule 16b-3 under
the Exchange Act and, if any Plan provision is later found not to be in
compliance with such Rule 16b-3, the provision shall be deemed null and void,
and in all events the Plan shall be construed in favor of its meeting the
requirements of Rule 16b-3. Notwithstanding anything in the Plan to the
contrary, the Board, in its sole discretion, may bifurcate the Plan so as to
restrict, limit or condition the use of any provision of the Plan to Optionees
who are officers or directors subject to Section 16 of the Exchange Act without
so restricting, limiting or conditioning the Plan with respect to other
Optionees.
12.6 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 Common Stock, or to create any trusts,
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<PAGE>
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.
12.7 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.
SECTION 13. EFFECTIVE DATE
The Plan's effective date is the date on which it is adopted by the Board
of Starwave.
Adopted by the Board on June 3, 1997.
PLAN ADOPTION AND AMENDMENTS/ADJUSTMENTS
Date of
Adoption/
Amendment/
Adjustment Section Effect of Amendment
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EXHIBIT 5.1
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November 17, 1998
Infoseek Corporation
1399 Moffett Park Drive
Sunnyvale, California 94089
RE: REGISTRATION STATEMENT ON FORM S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Infoseek Corporation, a California corporation (the
"Registrant" or "you"), with the Securities and Exchange Commission on or about
November 18, 1998 in connection with the registration under the Securities Act
of 1933, as amended (the "1933 Act"), of 3,477,384 shares of your Common Stock,
par value $0.001, reserved for issuance pursuant to the Starwave Corporation
Revised 1992 Combined Incentive and Nonqualified Stock Option Plan, Amended and
Restated as of March 7, 1995 (the "1992 Plan"), and of 4,845,917 shares of your
Common Stock, par value $0.001, reserved for issuance pursuant to the Starwave
Corporation 1997 Restated Nonqualified Stock Option Plan (the "1997 Plan")
(collectively, the "Shares"). As your legal counsel, we reviewed the actions
taken and proposed to be taken by you in connection with the proposed sale and
issuance of the Shares by the Registrant under the 1992 Plan and the 1997 Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken by you prior to the issuance of
the Shares pursuant to the Registration Statement, the 1992 Plan and the 1997
Plan, and upon completion of the actions being taken in order to permit such
transactions to be carried out in accordance with the securities laws of the
various states where required, the Shares will be legally and validly issued,
fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in
any abbreviated registration statement filed pursuant to Item E under the
general instructions to Form S-8 under the Securities Act of 1933 with respect
to the Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.2
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT ACCOUNTANTS
The Board of Directors
Infoseek Corporation:
We consent to the incorporation by reference in the Registration
Statement (Form S-8) of Infoseek Corporation pertaining to the Starwave
Corporation Revised 1992 Combined Incentive and Nonqualified Stock Option
Plan, Amended and Restated as of March 7, 1995 and the 1997 Nonqualified Stock
Option Plan of our report dated January 16, 1998, except for Note 14, as to
which the date is February 12, 1998 and Note 2, as to which the date is April
17, 1998, with respect to the consolidated financial statements and schedule
of Infoseek Corporation incorporated by reference in the Registration
Statement (Form S-4 No. 333-65635) and related Prospectus of Infoseek
Corporation, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------------------
ERNST & YOUNG LLP
San Jose, California
November 17, 1998
