2001 Broad Based Equity Incentive Plan of FreeMarkets, Inc.



 Exhibit 10.5 
 FREEMARKETS, INC. 
 BROAD BASED EQUITY INCENTIVE PLAN 

 

	1.	PURPOSE OF THE PLAN. 

 The
purpose of the FreeMarkets, Inc. Broad Based Equity Incentive Plan (the “Plan”) is to promote the interests of FreeMarkets, Inc. (the “Company”), its subsidiaries and its stockholders by (i) attracting and retaining
employees of outstanding ability, (ii) motivating such persons, by means of performance-related incentives, to achieve long-range performance goals, and (iii) enabling such persons to participate in the long-term growth and financial
success of the Company and its subsidiaries. The original effective date of the Plan is May 16, 2001 (“Effective Date”). 
  

	2.	ADMINISTRATION. 

 Subject to the
following paragraphs, the Plan shall be administered by the Company’s Board of Directors (the “Board”) or by a Compensation Committee of the Board (the “Compensation Committee”). If the Board delegates to the Compensation
Committee the authority to administer the Plan, the Compensation Committee shall be empowered to take all actions reserved to the Board under the Plan. The Board is authorized to interpret the Plan, to prescribe, amend and rescind rules and
regulations to further the purposes of the Plan, and to make all other determinations necessary for the administration of the Plan. All such actions by the Board shall be conclusive, final and binding on all recipients of grants hereunder
(“participants”). Notwithstanding the foregoing, the Board may, subject to any limitations or restrictions the Board may impose from time to time, delegate to the Chief Executive Officer the authority to administer the Plan, including the
authority to grant Options (as hereinafter defined) to employees of the Company and its subsidiaries. 
  

	3.	GRANTS. 

 Grants under the Plan
shall be in the form of nonqualified options (“Options”), and stock which is subject to certain forfeiture risks and restrictions on transferability (“Restricted Stock”). 

 

	4.	SHARES SUBJECT TO THE PLAN. 


Subject to adjustment as provided in Section 9, the maximum aggregate number of shares of Common Stock that may be subject to grants
made under the Plan is 2,000,000 shares, plus an automatic annual increase on the first day of each fiscal year of the Company beginning on or after January 1, 2002 and ending on or before December 31, 2010 equal to the lesser of
(i) 250,000 shares, (ii) 1% of the shares outstanding on the last day of the immediately preceding fiscal year, or (iii) such lesser number of shares as is determined by the Board. The Common Stock to be offered under the Plan shall
be authorized and unissued Common Stock or issued Common Stock which shall have been reacquired by the Company and held in its treasury. The Common Stock covered by any unexercised portion of terminated stock options granted under the Plan, or by
any grant of Restricted Stock which is forfeited, may again be subject to new grants under the Plan. In the event the purchase price of an Option is paid in whole or in part through the delivery of Common Stock, only the net number of shares of
Common Stock issuable in connection with the exercise of the Option shall be counted against the number of shares remaining available for grant under the Plan. 








	5.	PARTICIPANTS. 

 The Board shall
determine and designate from time to time those employees of the Company or its subsidiaries who shall be granted Options or Restricted Stock under the Plan and the number of shares of Common Stock to be covered by each such Option or Restricted
Stock grant; provided, that employees who are directors or officers (as defined in Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended) of the Company shall not be eligible to be granted Options or Restricted Stock under the Plan. In
making its determinations, the Board shall take into account the present and potential contributions of the respective individuals to the success of the Company and its subsidiaries and such other factors as the Board shall deem relevant in
connection with accomplishing the purposes of the Plan. Each grant shall be evidenced by a written Option or Restricted Stock agreement or grant form (“Grant Instrument”) as the Board shall approve from time to time. 

 

	6.	FAIR MARKET VALUE. 

 For all
purposes under the Plan, the term “Fair Market Value” shall mean, as of any applicable date, (i) if the principal securities market on which the Common Stock is traded is a national securities exchange or The Nasdaq National Market
(“NNM”), the closing price of the Common Stock on such exchange or NNM, as the case may be, or if no sale of the Common Stock shall have occurred on such date, on the next preceding date on which there was a reported sale; (ii) if the
Common Stock is not traded on a national securities exchange or NNM, the closing price on such date as reported by The Nasdaq SmallCap Market, or if no sale of the Common Stock shall have occurred on such date, on the next preceding date on which
there was a reported sale; (iii) if the principal securities market on which the Common Stock is traded is not a national securities exchange, NNM or The Nasdaq SmallCap Market, the average of the bid and asked prices reported by the National
Quotation Bureau, Inc.; or (iv) if the price of the Common Stock is not so reported, the Fair Market Value of the Common Stock as determined in good faith by the Board. 

 

	7.	GRANTS OF OPTIONS. 

 (a) Exercise
Price of Options. Options shall be granted at an exercise price as determined in each case by the Board. 
 (b) Term and
Termination of Options. 
 (1) The Board shall determine the term within which each Option may be exercised, in whole or in
part, provided that such term shall not exceed 10 years from the date of grant. 
 (2) Unless otherwise determined by the Board,
all rights to exercise Options shall terminate on the first to occur of (i) the scheduled expiration date as set forth in the applicable Grant Instrument, (ii) 60 days following the date of termination of employment for any reason other
than the participant’s death or permanent disability (as defined in Code Section 22(e)(3)), (iii) 1 year following the date of termination of employment by reason of the participant’s death or permanent disability (as defined in
Code Section 22(e)(3)), or (iv) as may be otherwise provided in the event of a Change of Control as defined in Section 10; provided, however, that in the event that a participant ceases to be employed by the Company and its
subsidiaries due to a termination for “cause” (as defined in Section 7(b)(3)), all rights to exercise Options held by such participant shall terminate immediately as of the date such participant ceases to be employed by the Company or
its subsidiaries. 
 (3) As used in this Plan, the term “cause” shall mean a finding by the Board that the participant
has engaged in conduct that is fraudulent, disloyal, criminal or injurious to the Company or its subsidiaries, including, without limitation, embezzlement, theft, commission of a felony or dishonesty in the course of his or her employment or
service, or the disclosure of trade secrets or confidential information of the Company or its subsidiaries to persons not entitled to receive such information. 

  
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 (c) Payment for Shares. Full payment for shares purchased upon exercise of Options granted
under the Plan shall be made at the time the Options are exercised in whole or in part. Payment of the purchase price shall be made in cash or in such other form as the Board may approve, including, without limitation, (i) by the
participant’s delivery to the Company of a promissory note containing such terms as the Board may determine, (ii) by the participant’s delivery to the Company of shares of Common Stock that have been held by the participant for at
least six months prior to exercise of the Options, valued at the Fair Market Value of such shares on the date of exercise, or (iii) if the Common Stock is publicly traded, pursuant to a cashless exercise arrangement with a broker on such terms
as the Board may determine; provided, however, that if payment is made pursuant to clause (i), the then par value of the purchased shares shall be paid in cash. No shares of Common Stock shall be issued to the participant until such payment has been
made, and a participant shall have none of the rights of a stockholder with respect to Options held by such participant. 
 (d)
Other Terms and Conditions. The Board shall have the discretion to determine terms and conditions, consistent with the Plan, that will be applicable to Options, including, without limitation, performance-based criteria for acceleration of the date
on which certain Options shall become exercisable. Options granted to the same or different participants, or at the same or different times, need not contain similar provisions. 

(e) Substitution of Options. Options may be granted under the Plan from time to time in substitution for stock options of other entities
(“Acquired Companies”) in connection with the merger or consolidation of the Acquired Company with the Company or its subsidiaries, the acquisition by the Company or by its subsidiaries of all or a portion of the assets of the Acquired
Company, or the acquisition of stock of the Acquired Company such that the Acquired Company becomes a subsidiary of the Company. 
  

	8.	GRANTS OF RESTRICTED STOCK. 

 The
Board may issue or transfer shares of Common Stock to employees under a grant of Restricted Stock, upon such terms as the Board deems applicable, including the provisions set forth below: 

(a) General Requirements. Shares of Common Stock issued or transferred pursuant to Restricted Stock grants may be issued or transferred
for consideration or for no consideration, and subject to restrictions or no restrictions, as determined by the Board. The Board may establish conditions under which restrictions on shares of Restricted Stock shall lapse over a period of time or
according to such other criteria (including performance-based criteria) as the Board deems appropriate. The period of time during which the Restricted Stock will remain subject to restrictions will be designated in the Grant Instrument as the
“Restriction Period.” 
 (b) Number of Shares. The Board shall determine the number of shares of Common Stock to be
issued or transferred pursuant to a Restricted Stock grant and the restrictions applicable to such shares. 
 (c) Requirement of
Employment. If a participant who has received a Restricted Stock grant ceases to be employed by the Company and its subsidiaries during the Restriction Period, or if other specified conditions are not met, the Restricted Stock grant shall terminate
as to all shares covered by the grant as to which the restrictions have not lapsed, and those shares of Common Stock shall be canceled in exchange for the purchase price, if any, paid by the participant for such shares. The Board may provide,
however, for complete or partial exceptions to this requirement as it deems appropriate. 
 (d) Restrictions on Transfer and
Legend on Stock Certificate. During the Restriction Period, a participant may not sell, assign, transfer, donate, pledge or otherwise dispose of the shares of Restricted Stock. Each certificate for a share of Restricted Stock shall contain a legend
giving appropriate notice of the applicable restrictions. The participant shall be entitled to have the legend removed from the stock certificate covering the shares of Restricted Stock subject to restrictions when all restrictions on such shares
lapse. The Board may determine that the Company will not issue certificates for shares of Restricted Stock until all restrictions on such shares lapse, or that the Company will retain possession of certificates for shares of Restricted Stock until
all restrictions on such shares lapse. 

  
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 (e) Right to Vote and to Receive Dividends. During the Restriction Period, the participant
shall have the right to vote shares of Restricted Stock and to receive any dividends or other distributions paid on such shares, subject to any restrictions deemed appropriate by the Board. 

(f) Lapse of Restrictions. All restrictions imposed on Restricted Stock shall lapse upon the expiration of the applicable Restriction
Period and the satisfaction of all conditions imposed by the Board. The Board may determine, as to any or all Restricted Stock grants, that the restrictions shall lapse without regard to any Restriction Period. 

 

	9.	ADJUSTMENTS TO REFLECT CAPITAL CHANGES. 

 The number and kind of shares subject to outstanding grants, the exercise price applicable to Options previously granted, and the number and kind of shares available subsequently to be granted under the
Plan shall be appropriately adjusted to reflect any stock dividend, stock split, combination or exchange of shares or other change in capitalization with a similar substantive effect upon the Plan or grants under the Plan. The Board shall have the
power and sole discretion to determine the nature and amount of the adjustment to be made in each case. The adjustment so made shall be final and binding on all participants. 

 

	10.	DEFINITION OF CHANGE OF CONTROL. 


For purposes of this Plan, a “Change of Control” shall mean the occurrence of any of the following events: 

(a) the acquisition, other than from the Company, by any individual, entity or group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act), other than the Company or an employee benefit plan of the Company, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% of the combined voting
power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Voting Securities”); or 
 (b) the approval by the Company’s stockholders of a reorganization, merger, consolidation or recapitalization of the Company (a “Business Combination”), other than a Business Combination in
which more than 50% of the combined voting power of the outstanding voting securities of the surviving or resulting entity immediately following the Business Combination is held by the persons who, immediately prior to the Business Combination, were
the holders of the Voting Securities; or 
 (c) the approval by the Company’s stockholders of a complete liquidation or
dissolution of the Company, or a sale of all or substantially all of the Company’s assets; or 
 (d) individuals who, as of
the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, that any individual becoming a director subsequent to such date whose election or nomination
for election by the Company’s stockholders was approved by a vote of at least a majority of the directors then comprising the Incumbent Board shall be considered as though such individual were a member of the Incumbent Board. 

  
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	11.	CONSEQUENCES OF A CHANGE OF CONTROL. 

 (a) Unless otherwise determined by the Board, upon a Change of Control, (i) each outstanding Option shall be assumed by the Acquiring Corporation (as defined below) or parent thereof or replaced with
a comparable option or right to purchase shares of the capital stock, or equity equivalent instrument, of the Acquiring Corporation or parent thereof, or other comparable rights (such assumed and comparable options and rights, together, the
“Replacement Options”) and (ii) each share of Restricted Stock shall be converted to a comparable restricted grant of capital stock, or equity equivalent instrument, of the Acquiring Corporation or parent thereof or other comparable
restricted property (such assumed and comparable restricted grants, together, the “Replacement Restricted Stock”); provided, however, that if the Acquiring Corporation or parent thereof does not grant Replacement Options and Replacement
Restricted Stock, then all outstanding Options which have been granted under the Plan and which are not exercisable as of the effective date of the Change of Control shall automatically accelerate and become exercisable immediately prior to the
effective date of the Change of Control, and all restrictions and conditions on any Restricted Stock shall lapse upon the effective date of the Change of Control. The term “Acquiring Corporation” means the surviving, continuing, successor
or purchasing corporation, as the case may be. Notwithstanding anything in the Plan to the contrary, the Board shall have discretion, in the applicable Grant Instrument or an amendment thereof, to provide for the acceleration of Options and the
elimination of restrictions on Restricted Stock upon a Change of Control. The Board may determine in its discretion (but shall not be obligated to do so) that in lieu of the issuance of Replacement Options, all holders of outstanding Options which
are exercisable immediately prior to a Change of Control (including those that become exercisable under this Section 11(a)) will be required to surrender them in exchange for a payment, in cash or Common Stock as determined by the Board, of an
amount equal to the amount (if any) by which the then Fair Market Value of Common Stock subject to unexercised Options exceeds the exercise price of those Options, with such payment to take place as of the date of the Change of Control or such other
date as the Board may prescribe. 
 (b) Any Options that are not assumed or replaced by Replacement Options, exercised or cashed
out prior to or concurrent with a Change of Control will terminate effective upon the Change of Control or at such other time as the Board deems appropriate. 
 (c) Notwithstanding anything in the Plan to the contrary, in the event of a Change of Control, no action described in the Plan shall be taken (including, without limitation, actions described in
subsections (a) and (b) above) if such actions would make the Change of Control ineligible for “pooling of interests” accounting treatment or would make the Change of Control ineligible for desired tax treatment if, in the absence of
such actions, the Change of Control would qualify for such treatment and the Company intends to use such treatment with respect to such Change of Control. 
  

	12.	TRANSFERABILITY OF OPTIONS. 


Unless otherwise determined by the Board, Options granted under the Plan shall not be transferable other than by will or the laws of
descent and distribution and are exercisable during a participant’s lifetime only by the participant. 
  

	13.	WITHHOLDING. 

 The Company shall
have the right to deduct any taxes required by law to be withheld in respect of grants under the Plan from amounts paid to a participant in cash as salary, bonus or other compensation. In the Board’s discretion, a participant may be permitted
to elect to have withheld from the shares otherwise issuable to the participant, or to tender to the Company, a number of shares of Common Stock the aggregate Fair Market Value of which does not exceed the applicable withholding rate for federal
(including FICA), state and local tax liabilities. Any such election must be in a form and manner prescribed by the Board. 

  
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	14.	CONSTRUCTION OF THE PLAN. 

 The
validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be determined solely by the Board. Any determination by the Board shall be final and binding on
all participants. The Plan shall be governed in accordance with the laws of the State of Delaware, without regard to the conflict of law provisions of such laws. 
  

	15.	NO RIGHT TO GRANT; NO RIGHT TO EMPLOYMENT. 

 No person shall have any claim of right to be granted an Option or Restricted Stock under the Plan. Neither the Plan nor any action taken hereunder shall be construed as giving any employee any right to
be retained in the employ of the Company or any of its subsidiaries. 
  

	16.	GRANTS NOT INCLUDABLE FOR BENEFIT PURPOSES. 

 Income recognized by a participant pursuant to the provisions of the Plan shall not be included in the determination of benefits under any employee pension benefit plan (as such term is defined in
Section 3(2) of the Employee Retirement Income Security Act of 1974) or group insurance or other benefit plans applicable to the participant which are maintained by the Company or any of its subsidiaries, except as may be provided under the
terms of such plans or determined by resolution of the Board. 
  

	17.	NO STRICT CONSTRUCTION. 

 No rule
of strict construction shall be implied against the Company, the Board or any other person in the interpretation of any of the terms of the Plan, any grant made under the Plan or any rule or procedure established by the Board. 

 

	18.	CAPTIONS. 

 All Section headings
used in the Plan are for convenience only, do not constitute a part of the Plan, and shall not be deemed to limit, characterize or affect in any way any provisions of the Plan, and all provisions of the Plan shall be construed as if no captions had
been used in the Plan. 
  

	19.	SEVERABILITY. 

 Whenever
possible, each provision in the Plan and every grant under the Plan shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Plan or any grant under the Plan shall be held to be prohibited by
or invalid under applicable law, then such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law, and all other provisions of the Plan and every other grant under
the Plan shall remain in full force and effect. 
  

	20.	LEGENDS. 

 All certificates for
Common Stock delivered under the Plan shall be subject to such transfer and other restrictions as the Board may deem advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange or
quotation system upon which the Common Stock is then listed or quoted and any applicable federal or state securities laws, and the Board may cause a legend or legends to be put on any such certificates to make appropriate references to such
restrictions. 
  

	21.	AMENDMENT. 

 The Board may, by
resolution, amend or revise the Plan. The Board may not modify any Options previously granted under the Plan in a manner adverse to the holders thereof without the consent of such holders, except in accordance with the provisions of Sections 9, 11
or 22. 

  
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	22.	MODIFICATION FOR GRANTS OUTSIDE THE U.S. 

 The Board may, without amending the Plan, determine the terms and conditions applicable to grants of Options or Restricted Stock to participants who are foreign nationals or employed outside the United
States in a manner otherwise inconsistent with the Plan if the Board deems such terms and conditions necessary in order to recognize differences in local law or regulations, tax policies or customs. 

 

	23.	EFFECTIVE DATE; TERMINATION OF PLAN. 

 The Plan is effective on May 16, 2001. The Plan shall terminate on May 15, 2011, unless it is earlier terminated by the Board. Termination of the Plan shall not affect previous grants under the
Plan. 

  
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