Exhibit
10.1
YAHOO! INC.
1995 STOCK PLAN
(as amended and restated on
June 25, 2009)
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1.
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Purposes of
the Plan. The purposes of
this 1995 Stock Plan are to attract and retain the best available
personnel for positions of substantial responsibility, to provide
additional incentive to Employees and Consultants of the Company
and its Subsidiaries and to promote the success of the
Company’s business. To accomplish the foregoing, the Plan
provides that the Company may grant Options, Stock Appreciation
Rights, Restricted Stock, Restricted Stock Units, Dividend
Equivalents and Performance-Based Awards (each as hereinafter
defined). Options granted under the Plan may be incentive stock
options (as defined under Section 422 of the Code) or
nonstatutory stock options, as determined by the Administrator at
the time of grant of an Option and subject to the applicable
provisions of Section 422 of the Code, as amended, and the
regulations promulgated thereunder.
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Subject to approval of the
amendments to the Plan reflected in this document by the
Company’s stockholders at the Company’s 2009 Annual
Meeting of stockholders, this version of the Plan is effective on
and after the Effective Date, and Awards granted on or after the
Effective Date shall be made under this version of the Plan and not
under the Plan as previously in effect. For the terms and
conditions of the Plan applicable to Awards granted under the Plan
before the Effective Date, refer to the version of the Plan in
effect as of the date such Award was granted.
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2.
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Definitions. As used herein, the following definitions shall
apply:
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“Administrator” means
the Board or any of its Committees appointed pursuant to
Section 4 of the Plan.
“Applicable Laws” means
any legal requirements of all state and federal laws, including
without limitation securities laws and the Code, relating to the
administration of stock incentive plans such as the
Plan.
“Award” means an award
of Options, Stock Appreciation Rights, Restricted Stock, Restricted
Stock Units, Dividend Equivalents, or Performance-Based Awards
(each as defined below).
“Award Agreement” has
the meaning set forth in Section 21 of the Plan.
“Board” means the Board
of Directors of the Company.
“Cause” shall have such
meaning as determined by the Administrator and set forth in the
applicable Award Agreement. Unless otherwise expressly provided in
the applicable Award Agreement, the determination of Cause with
respect to an Award shall be made by the Administrator in its sole
discretion.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Committee” means the
Committee appointed by the Board of Directors in accordance with
Section 4(a) of the Plan.
“Common Stock” means the
common stock of the Company.
“Company” means
Yahoo! Inc., a Delaware corporation.
“Consultant” means any
person, but not including a Non-Employee Director, who is engaged
by the Company or any Parent or Subsidiary of the Company to render
services and is compensated for such services.
“Continuous Status as an
Employee or Consultant” means the absence of any interruption
or termination of service as an Employee or Consultant. Continuous
Status as an Employee or Consultant shall not be
considered interrupted in the case
of: (i) sick leave; (ii) military leave; (iii) any
other approved leave of absence, provided that such leave is for a
period of not more than ninety (90) days, unless reemployment
upon the expiration of such leave is guaranteed by contract or
statute, or unless otherwise provided pursuant to Company policy
adopted from time to time; or (iv) in the case of transfers
between locations of the Company or between the Company, its
Subsidiaries or their respective successors. For purposes of the
Plan, a change in status from an Employee to a Consultant or from a
Consultant to an Employee will not constitute an interruption of
Continuous Status as an Employee or Consultant. If an entity ceases
to be a Subsidiary of the Company, an interruption of Continuous
Status as an Employee or Consultant shall be deemed to have
occurred with respect to each Employee or Consultant in respect of
such Subsidiary who does not continue as an Employee or Consultant
in respect of the Company or another Subsidiary of the Company that
continues as such after giving effect to the transaction or other
event giving rise to the change in status. The Administrator shall
be the sole judge of whether a Participant continues to render
services for purposes of the Plan.
“Director” means a
member of the Board.
“Dividend Equivalent”
means a right granted under Section 13 of the Plan.
“Effective Date” means
June 25, 2009.
“Employee” means any
person, including Officers and Directors, employed by the Company
or any Parent or Subsidiary of the Company. The payment of
compensation by the Company for service as a Director does not,
alone, constitute “employment” of the Director by the
Company.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Fair Market Value”
means, as of any date, the fair market value of Common Stock
determined as follows:
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(i)
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If the Common
Stock is listed on any established stock exchange or a national
market system including without limitation the Nasdaq Global Market
and Nasdaq Global Select Market, its Fair Market Value shall be the
closing sales price for such stock as quoted on such exchange or
system on the date of determination (if for a given day no sales
were reported, the closing sales price for a share of Common Stock
for the next preceding day on which sales of Common Stock were
reported shall be used), as such price is reported in The Wall
Street Journal or such other source as the Administrator deems
reliable;
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(ii)
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If the Common
Stock is listed on the Nasdaq Stock Market (but not on the Nasdaq
Global Market or Nasdaq Global Select Market thereof) or regularly
quoted by a recognized securities dealer but selling prices are not
reported, its Fair Market Value shall be the mean between the bid
and asked prices for the Common Stock on the date of determination,
as reported in The Wall Street Journal or such other source as the
Administrator deems reliable; or
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(iii)
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In the absence
of an established market for the Common Stock, the Fair Market
Value thereof shall be determined in good faith by the
Administrator;
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provided, however, that, as to
Awards subject to laws other than the laws of the United States,
the Administrator may adopt a different methodology for determining
Fair Market Value with respect to one or more such Awards if a
different methodology is necessary or advisable to secure any
intended favorable tax, legal or other treatment for the particular
Award(s) (for example, and without limitation, the Administrator
may provide that Fair Market Value for purposes of one or more
Awards will be based on an average of closing prices (or the
average of high and low daily trading prices) for a specified
period preceding the relevant date).
“Full-Value Award” means
any Award under the Plan other than an Option or a Stock
Appreciation Right.
“Good Reason” shall have
such meaning as determined by the Administrator and set forth in
the applicable Award Agreement. Unless otherwise expressly provided
in the applicable Award Agreement, the determination of Good Reason
with respect to an Award shall be made by the Administrator in its
sole discretion.
“Incentive Stock Option”
means an Option intended to qualify as an incentive stock option
within the meaning of Section 422 of the Code, as designated
in the applicable written Option agreement.
“Non-Employee Director”
shall mean a Director who is not an Employee.
“Nonstatutory Stock
Option” means an Option not intended to qualify as an
Incentive Stock Option, as designated in the applicable written
Option agreement.
“Officer” means an
officer of the Company or any Parent or Subsidiary of the
Company.
“Option” means a stock
option granted under Section 9 of the Plan.
“Parent” means a
“parent corporation,” whether now or hereafter
existing, as defined in Section 424(e) of the Code or any
successor provision.
“Participant” means an
Employee or Consultant who receives an Award under the
Plan.
“Performance-Based
Award” has the meaning set forth in Appendix A of the
Plan.
“Plan” means this 1995
Stock Plan, as amended from time to time.
“Reporting Person” means
an Officer, Director, or greater than ten percent stockholder of
the Company within the meaning of Rule 16a-2 under the
Exchange Act, who is required to file reports pursuant to
Rule 16a-3 under the Exchange Act.
“Restricted Period” has
the meaning set forth in Section 11(a) of the Plan.
“Restricted Stock” means
Shares acquired pursuant to Section 11 of the Plan.
“Restricted Stock Unit”
means the right to receive in cash or Shares the Fair Market Value
of a Share granted pursuant to Section 12 of the
Plan.
“Rule 16b-3” means
Rule 16b-3 promulgated under the Exchange Act, as the same may
be amended from time to time, or any successor
provision.
“Share” means a share of
the Common Stock, as adjusted in accordance with Section 15 of
the Plan.
“Stock Appreciation
Right” means a stock appreciation right granted under
Section 9 of the Plan.
“Stock Exchange” means
any stock exchange or consolidated stock price reporting system on
which prices for the Common Stock are quoted at any given
time.
“Subsidiary” means a
“subsidiary corporation,” whether now or hereafter
existing, as defined in Section 424(f) of the Code, or any
successor provision.
“Total Disability” shall
have such meaning as determined by the Administrator and set forth
in the applicable Award Agreement. Unless otherwise expressly
provided in the applicable Award Agreement, Total Disability with
respect to an Award shall mean a total and permanent disability
within the meaning of Section 22(e)(3) of the Code.
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3.
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Stock
Subject to the Plan .
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(a)
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Share Limits; Shares
Available . The Shares
may be authorized, but unissued, or reacquired Common Stock. The
maximum aggregate number of Shares that may be issued under the
Plan is 754,000,000 Shares. Shares issued in respect of any
Full-Value Award granted under the Plan after the Effective Date
shall be counted against the Share limit set forth in the foregoing
sentence as 1.75 Shares for every one Share actually issued in
connection with such Award. (For example, if 100 Shares are issued
with respect to a Restricted Stock Award granted under the Plan
after the Effective Date, 175 Shares shall be counted against such
Share limit in connection with that Award.) Shares issued in
respect of any Full-Value Award granted under the Plan on or before
the Effective Date shall be counted against the Share limit set
forth above at the applicable ratio in effect under the Plan on the
date of grant of
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such Award. The maximum aggregate
number of Shares that may be issued under the Plan pursuant to
Options qualified as Incentive Stock Options is 754,000,000 Shares
(within, and not in addition to, the aggregate share limit). Each
of the foregoing numerical limits is subject to adjustment as
contemplated by Section 3(b) and Section 15.
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(b)
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Awards
Settled in Cash; Reissue of Awards and Shares
. To the extent that an Award is
settled in cash or a form other than Shares, the Shares that would
have been delivered had there been no such cash or other settlement
shall not be counted against the Shares available for issuance
under the Plan. In the event that shares of Common Stock are
delivered in respect of a Dividend Equivalent right granted under
the Plan, only the actual number of shares delivered with respect
to the Award shall be counted against the share limits of the Plan.
(For purposes of clarity, if 1,000 Dividend Equivalent rights are
granted and outstanding when the Company pays a dividend, and 50
shares are delivered in payment of those rights with respect to
that dividend, 50 shares shall be counted against the share limits
of the Plan). In connection with the exercise of a Stock
Appreciation Right or an Option, the number of underlying Shares as
to which the exercise relates shall be counted against the
applicable Share limits under Section 3(a), as opposed to only
counting the Shares actually issued. (For purposes of clarity, if
an Option relates to 100,000 Shares and is exercised in full at a
time when the net number of Shares due to the Participant (after
any netting of Shares to cover the exercise price and/or tax
withholding) is 15,000 Shares, 100,000 Shares shall be counted
against the applicable Share limits under Section 3(a) with
respect to such exercise.) Shares that are reacquired or withheld
by the Company as full or partial payment in connection with any
Award under the Plan, as well as any Shares reacquired or withheld
by the Company or one of its Subsidiaries to satisfy the tax
withholding obligations related to any Award, shall not be
available for subsequent Awards under the Plan. Shares that are
subject to or underlie Awards which expire or for any reason are
cancelled or terminated, are forfeited, fail to vest, or for any
other reason are not paid or delivered under the Plan shall again
be available for subsequent Awards under the Plan as if such Awards
had never been granted.
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4.
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Administration of the Plan
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(a)
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The
Administrator . The Plan
shall be administered by and all Awards under the Plan shall be
authorized by the Administrator. The “Administrator”
means the Board or one or more committees appointed by the Board or
another committee (within its delegated authority) to administer
all or certain aspects of the Plan. Any such committee shall be
comprised solely of one or more directors or such number of
directors as may be required under applicable law. A committee may
delegate some or all of its authority to another committee so
constituted. The Board or a committee comprised solely of directors
may also delegate, to the extent permitted by Section 157(c)
of the Delaware General Corporation Law and any other applicable
law, to one or more officers of the Company, its powers under the
Plan (a) to designate the Employees other than an officer who
is a Reporting Person who will receive grants of Awards under the
Plan, and (b) to determine the number of shares subject to,
and the other terms and conditions of, such Awards. The Board may
delegate different levels of authority to different committees with
administrative and grant authority under the Plan. Unless otherwise
provided in the Bylaws of the Company or the applicable charter of
any Administrator, a majority of the members of the acting
Administrator shall constitute a quorum, and the vote of a majority
of the members present assuming the presence of a quorum or the
unanimous written consent of the members of the Administrator shall
constitute action by the acting Administrator.
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With respect to Awards intended to
satisfy the requirements for performance-based compensation under
Section 162(m) of the Code, the Plan shall be administered by
a committee consisting solely of two or more outside directors (as
this requirement is applied under Section 162(m) of the Code);
provided, however, that the failure to satisfy such requirement
shall not affect the validity of the action of any committee
otherwise duly authorized and acting in the matter. Award grants,
and transactions in or involving Awards, intended to be exempt
under Rule 16b-3 under the Exchange Act, must be duly and
timely authorized by the Board or a committee consisting solely of
two or more non-employee
directors (as this requirement is
applied under Rule 16b-3 promulgated under the Exchange Act).
To the extent required by any applicable Stock Exchange, the Plan
shall be administered by a committee composed entirely of
independent directors (within the meaning of the applicable Stock
Exchange rules).
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(b)
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Powers of
the Administrator .
Subject to the provisions of the Plan and in the case of a
Committee, the specific duties delegated by the Board to such
Committee, and subject to the approval of any relevant authorities,
including the approval, if required, of any Stock Exchange, the
Administrator shall have the authority, in its
discretion:
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(i)
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to determine
the Fair Market Value of the Common Stock, in accordance with the
definition of such term set forth above;
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(ii)
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to select the
Consultants and Employees to whom Awards may from time to time be
granted hereunder;
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(iii)
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to determine
whether and to what extent Awards are granted hereunder;
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(iv)
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to determine
the number of Shares of Common Stock, if any, to be covered by each
Award granted hereunder;
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(v)
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to approve
forms of agreements for use under the Plan;
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(vi)
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to determine
the terms and conditions, not inconsistent with the terms of the
Plan, of any Award granted hereunder, including, but not limited
to, the share price and any restriction or limitation, the vesting
of any Award or the acceleration of vesting or waiver of a
forfeiture restriction, and to determine the effect (which may
include the suspension, delay or extension of vesting dates) of a
leave of absence, based in each case on such factors as the
Administrator shall determine, in its sole discretion;
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(vii)
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to determine
whether and under what circumstances an Award may be settled in
cash or other consideration instead of Common Stock (subject to the
no-repricing provision below);
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(viii)
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to adjust the
number of Shares subject to any Award, adjust the price of any or
all outstanding Awards or otherwise change previously imposed terms
and conditions, in such circumstances as the Administrator may deem
appropriate, in each case subject to Sections 3 and 18 (subject to
the no-repricing provision below);
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(ix)
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to construe and
interpret the terms of the Plan and Awards granted pursuant to the
Plan; and
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(x)
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in order to
fulfill the purposes of the Plan and without amending the Plan, to
modify Awards to Participants who are foreign nationals or employed
outside of the United States in order to recognize differences in
local law, tax policies or customs.
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Notwithstanding the foregoing and
except for an adjustment pursuant to Section 15(a) or a
repricing approved by stockholders, in no case may the
Administrator (1) amend an outstanding Option or Stock
Appreciation Right to reduce the exercise price or grant price of
the Award, (2) provide for the cancellation, exchange, or
surrender of an outstanding Option or Stock Appreciation Right in
exchange for cash or other awards for the purpose of repricing the
Award, or (3) provide for the cancellation, exchange, or
surrender an outstanding Option or Stock Appreciation Right in
exchange for an Option or Stock Appreciation Right with an exercise
or grant price that is less than the exercise or grant price of the
original Award.
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(c)
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Effect of
Administrator’s Decision . All decisions, determinations and
interpretations of the Administrator shall be final and binding on
all holders of any Award.
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(a)
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Recipients
of Grants . Awards may be
granted to eligible Employees and Consultants. Incentive Stock
Options may be granted only to Employees. An Employee or Consultant
who has been granted an Award may, if he or she is otherwise
eligible, be granted additional Awards.
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(b)
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No
Employment Rights . The
Plan shall not confer upon any Participant any right with respect
to continuation of employment or consulting relationship with the
Company, nor shall it interfere in any way with such
Participant’s right or the Company’s right to terminate
his or her employment or consulting relationship at any time, with
or without cause.
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6.
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Term of
Plan . The Plan shall
become effective upon the earlier to occur of its adoption by the
Board of Directors or its approval by the stockholders of the
Company as described in Section 22 of the Plan. It shall
continue in effect until April 2, 2019, unless sooner
terminated under Section 18 of the Plan.
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7.
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Term of
Awards . The term of each
Award shall be the term stated in the written agreement evidencing
such Award; provided, however, that the term of any Award shall be
no more than seven (7) years from the date of grant thereof or
such shorter term as may be provided in such agreement and provided
further that, in the case of an Incentive Stock Option granted to a
Participant who, at the time the Option is granted, owns stock
representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary,
the term of the Option shall be five (5) years from the date
of grant thereof or such shorter term as may be provided in the
written Option agreement.
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8.
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Limitation
on Award Grants to Employees . Subject to adjustment as provided in the Plan,
the maximum number of Shares which may be subject to all Options
and Stock Appreciation Rights granted to any one Employee under the
Plan during any calendar year of the Company shall be
15,000,000.
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9.
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Terms of
Options and Stock Appreciation Rights .
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(a)
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Type of
Option . Each Option
shall be designated in the written Option agreement as either an
Incentive Stock Option or a Nonstatutory Stock Option. However,
notwithstanding such designations, to the extent that the aggregate
Fair Market Value of Shares with respect to which Options
designated as Incentive Stock Options are exercisable for the first
time by any Participant during any calendar year (under all plans
of the Company or any Parent or Subsidiary) exceeds $100,000, such
excess Options shall be treated as Nonstatutory Stock Options. For
purposes of this Section 5(b), the most recently granted
Incentive Stock Options shall be treated as Nonstatutory Stock
Options first, and the Fair Market Value of the Shares subject to
an Incentive Stock Option shall be determined as of the date of the
grant of such Option.
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(b)
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Stock
Appreciation Rights . A
Stock Appreciation Right shall entitle the recipient to receive an
amount equal to the excess of the Fair Market Value of a Share on
the date of exercise of the Stock Appreciation Right over the grant
price thereof. The Administrator shall determine whether a Stock
Appreciation Right shall be settled in cash, Shares or a
combination of cash and Shares. Stock Appreciation Rights may be
granted in addition to another Award or freestanding and unrelated
to another Award.
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(c)
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Exercise
Price . The per share
exercise or grant price, as the case may be, for each Option or
Stock Appreciation Right shall be such price as is determined by
the Administrator and set forth in the applicable agreement, but
shall be subject to the following:
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(i)
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In the case of
an Incentive Stock Option that is:
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(A)
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granted to an
Employee who, at the time of the grant of such Incentive Stock
Option, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any
Parent or Subsidiary, the per Share exercise price shall be no less
than 110% of the Fair Market Value per Share on the date of
grant.
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(B)
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granted to any
other Employee, the per Share exercise price shall be no less than
100% of the Fair Market Value per Share on the date of
grant.
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(ii)
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In the case of
the exercise price of a Nonstatutory Stock Option or the grant
price of a Stock Appreciation Right, such price shall be no less
than 100% of the Fair Market Value per Share on the date of
grant.
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(d)
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Permissible
Consideration . The
consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined
by the Administrator (and, in the case of an Incentive Stock
Option, shall be determined at the time of grant) and may consist
entirely of (1) cash, (2) check, (3) other Shares
that (x) in the case of Shares initially acquired from the
Company (upon exercise of a stock option or otherwise), have been
owned by the Participant for such period (if any) as may be
required to avoid a charge to the Company’s earnings, and
(y) have a Fai
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