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EXHIBIT 10.10
FIRSTQUOTE INC.
THIRD AMENDED AND RESTATED
1997 STOCK OPTION PLAN
On April 28, 1997, the Board of Directors of FirstQuote Inc. approved the
Virtual Telecom, Inc. 1997 Stock Option Plan. On March 19, 1998, the Board of
Directors approved this Amended and Restated Virtual Telecom, Inc. 1997 Stock
Option Plan for purposes of (i) increasing the number off authorized shares of
Common Stock from 500,000 shares to 750,000 shares, and (ii) providing for a
minimum vesting period of 12 months on all Options granted under the Plan. On
December 7, 1998, the Board of Directors approved the Second Amended and
Restated Stock Option Plan for purposes of increasing the authorized number of
shares of Common Stock from 750,000 shares to 1,150,000 shares. In April 1999,
Virtual Telecom, Inc. changed its name to FirstQuote Inc. On December 7, 1999,
the Board of Directors approved the Third Amended and Restated Stock Option Plan
for purposes of: (i) increasing the authorized number of shares of Common Stock
from 1,150,000 shares to 2,000,000 shares, (ii) allocating the Plan options
among certain classes of participants for all new option grants, and (iii)
adopting a scaled vesting period for all new option grants
1. PURPOSE. The purpose of the Third Amended and Restated FirstQuote Inc.
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1997 Stock Option Plan (the "Plan") is to strengthen FirstQuote Inc., a Delaware
corporation ("Corporation"), by providing to employees, officers, directors,
consultants and independent contractors of the Corporation or any of its
subsidiaries (including dealers, distributors, and other business entities or
persons providing services on behalf of the Corporation or any of its
subsidiaries) added incentive for high levels of performance and unusual efforts
to increase the earnings of the Corporation. The Plan seeks to accomplish this
purpose by enabling specified persons to purchase shares of the common stock of
the Corporation, $.001 par value, thereby increasing their proprietary interest
in the Corporation's success and encouraging them to remain in the employ or
service of the Corporation.
2. CERTAIN DEFINITIONS. As used in this Plan, the following words and
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phrases shall have the respective meanings set forth below, unless the context
clearly indicates a contrary meaning:
2.1 "Board of Directors": The Board of Directors of the Corporation.
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2.2 "Committee": The Committee which shall administer the Plan shall
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consist of the entire Board of Directors.
2.3 "Fair Market Value Per Share": The fair market value per share
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of the Shares as determined by the Committee in good faith. The Committee is
authorized to make its determination as to the fair market value per share of
the Shares on the following basis: (i) if the Shares are traded only otherwise
than on a securities exchange and are not quoted on the National Association of
Securities Dealers' Automated Quotation System ("NASDAQ"), but are quoted on the
bulletin board, the greater of (a) the average of the daily closing prices of
the Shares over the thirty (30) trading days preceding the date of grant of an
Option, as quoted on the bulletin board, or (b) the closing sale price of the
Shares on the on the date of grant, as published
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on the bulletin board;" (ii) if the Shares are traded on a securities exchange
or on the NASDAQ, the greater of (a) the average of the daily closing prices of
the Shares during the ten (10) trading days preceding the date of grant of an
Option, as quoted in the Wall Street Journal, or (b) the daily closing price of
the Shares on the date of grant of an Option, as quoted in the Wall Street
Journal; or (iii) if the Shares are traded only otherwise than as described in
(i) or (ii) above, or if the Shares are not publicly traded, the value
determined by the Committee in good faith based upon the fair market value as
determined by completely independent and well qualified experts.
2.4 "Option": A stock option granted under the Plan.
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2.5 "Incentive Stock Option": An Option intended to qualify for
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treatment as an incentive stock option under Code Sections 421 and 422, and
designated as an Incentive Stock Option.
2.6 "Nonqualified Option": An Option not qualifying as an Incentive
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Stock Option.
2.7 "Optionee": The holder of an Option.
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2.8 "Option Agreement": The document setting forth the terms and
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conditions of each Option.
2.9 "Shares": The shares of common stock $.001 par value of the
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Corporation.
2.10 "Code": The Internal Revenue Code of 1986, as amended.
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2.11 "Subsidiary": Any corporation of which fifty percent (50%) or
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more of total combined voting power of all classes of stock of such corporation
is owned by the Corporation or another Subsidiary (as so defined).
3. ADMINISTRATION OF PLAN.
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3.1 In General. This Plan shall be administered by the Committee.
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Any action of the Committee with respect to administration of the Plan shall be
taken pursuant to (i) a majority vote at a meeting of the Committee (to be
documented by minutes), or (ii) the unanimous written consent of its members.
3.2 Authority. Subject to the express provisions of this Plan, the
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Committee shall have the authority to: (i) construe and interpret the Plan,
decide all questions and settle all controversies and disputes which may arise
in connection with the Plan and to define the terms used therein; (ii)
prescribe, amend and rescind rules and regulations relating to administration of
the Plan; (iii) determine the purchase price of the Shares covered by each
Option and the method of payment of such price, individuals to whom, and the
time or times at which, Options shall be granted and exercisable and the number
of Shares covered by each Option; (iv) determine the terms and provisions of
the respective Option Agreements (which need not be identical); (v) determine
the duration and purposes of leaves of absence which may be granted to
participants without constituting a termination of their employment for purposes
of the Plan; and (vi) make all other determinations necessary or advisable to
the administration of the Plan.
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Determinations of the Committee on matters referred to in this Section 3 shall
be conclusive and binding on all parties howsoever concerned. With respect to
Incentive Stock Options, the Committee shall administer the Plan in compliance
with the provisions of Code Section 422 as the same may hereafter be amended
from time to time. No member of the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option.
4. ELIGIBILITY AND PARTICIPATION.
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4.1 In General. Only officers, employees and directors who are also
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employees of the Corporation or any Subsidiary shall be eligible to receive
grants of Incentive Stock Options. Officers, employees and directors (whether
or not they are also employees) of the Corporation or any Subsidiary, as well as
consultants, independent contractors or other service providers of the
Corporation or any Subsidiary shall be eligible to receive grants of
Nonqualified Options. Within the foregoing limits, the Committee, from time to
time, shall determine and designate persons to whom Options may be granted.
All such designations shall be made in the absolute discretion of the Committee
and shall not require the approval of the stockholders. In determining (i) the
number of Shares to be covered by each Option, (ii) the purchase price for such
Shares and the method of payment of such price (subject to the other sections
hereof), (iii) the individuals of the eligible class to whom Options shall be
granted, (iv) the terms and provisions of the respective Option Agreements, and
(v) the times at which such Options shall be granted, the Committee shall take
into account such factors as it shall deem relevant in connection with
accomplishing the purpose of the Plan as set forth in Section 1. An individual
who has been granted an Option may be granted an additional Option or Options if
the Committee shall so determine. No Option shall be granted under the Plan
after April 28, 2007, but Options granted before such date may be exercisable
after such date.
4.2 Certain Limitations. In no event shall Incentive Stock Options
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be granted to an Optionee such that the sum of (i) aggregate fair market value
(determined at the time the Incentive Stock Options are granted) of the Shares
subject to all Options granted under the Plan which are exercisable for the
first time during the same calendar year, plus (ii) the aggregate fair market
value (determined at the time the options are granted) of all stock subject to
all other incentive stock options granted to such Optionee by the Corporation,
its parent and Subsidiaries which are exercisable for the first time during
such calendar year, exceeds One Hundred Thousand Dollars ($100,000). For
purposes of the immediately preceding sentence, fair market value shall be
determined as of the date of grant based on the Fair Market Value Per Share as
determined pursuant to Section 2.3.
4.3 Certain Allocations. As of December 7, 1999, there are Options
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to purchase 1,083,700 shares of Common Stock available for grant under the Plan.
The Corporation shall allocate such Options among the following classes:
Initial grants to new hires 83,000 Options
Grants to Existing Senior Managers 500,000 Options
Grants to Existing Employees 500,000 Options
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5. AVAILABLE SHARES AND ADJUSTMENTS UPON CHANGES
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IN CAPITALIZATION.
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5.1 Shares. Subject to adjustment as provided in Section 5.2 below,
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the total number of Shares to be subject to Options granted pursuant to this
Plan shall not exceed Two Million (2,000,000) Shares. Shares subject to the
Plan may be either authorized but unissued shares or shares that were once
issued and subsequently reacquired by the Corporation; the Committee shall be
empowered to take any appropriate action required to make Shares available for
Options granted under this Plan. If any Option is surrendered before exercise
or lapses without exercise in full or for any other reason ceases to be
exercisable, the Shares reserved therefore shall continue to be available under
the Plan.
5.2 Adjustments. As used herein, the term "Adjustment Event" means
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an event pursuant to which the outstanding Shares of the Corporation are
increased, decreased or changed into, or exchanged for a different number or
kind of shares or securities, without receipt of consideration by the
Corporation, through reorganization, merger, recapitalization, reclassification,
stock split, reverse stock split, stock dividend, stock consolidation or
otherwise. Upon the occurrence of an Adjustment Event, (i) appropriate and
proportionate adjustments shall be made to the number and kind of shares and
exercise price for the shares subject to the Options which may thereafter be
granted under this Plan, (ii) appropriate and proportionate adjustments shall be
made to the number and kind of and exercise price for the shares subject to the
then outstanding Options granted under this Plan, and (iii) appropriate
amendments to the Option Agreements shall be executed by the Corporation and the
Optionees if the Committee determines that such an amendment is necessary or
desirable to reflect such adjustments. If determined by the Committee to be
appropriate, in the event of an Adjustment Event which involves the substitution
of securities of a corporation other than the Corporation, the Committee shall
make arrangements for the assumptions by such other corporation of any Options
then or thereafter outstanding under the Plan. Notwithstanding the foregoing,
such adjustment in an outstanding Option shall be made without change in the
total exercise price applicable to the unexercised portion of the Option, but
with an appropriate adjustment to the number of shares, kind of shares and
exercise price for each share subject to the Option. The determination by the
Committee as to what adjustments, amendments or arrangements shall be made
pursuant to this Section 5.2, and the extent thereof, shall be final and
conclusive. No fractional Shares shall be issued under the Plan on account of
any such adjustment or arrangement.
6. TERMS AND CONDITIONS OF OPTIONS.
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6.1 Intended Treatment as Incentive Stock Options. Incentive Stock
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Options granted pursuant to this Plan are intended to be "incentive stock
options" to which Code Sections 421 and 422 apply, and the Plan shall be
construed and administered to implement that intent. If all or any part of an
Incentive Stock Option shall not be an "incentive stock option" subject to
Sections 421 or 422 of the Code, such Option shall nevertheless be valid and
carried into effect. All Options granted under this Plan shall be subject to
the terms and conditions set forth in this Section 6 (except as provided in
Section 5.2) and to such other terms and conditions as the Committee shall
determine to be appropriate to accomplish the purpose of the Plan as set forth
in Section 1.
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6.2 Amount and Payment of Exercise Price.
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6.2.1 Exercise Price. The exercise price per Share for each
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Share which the Optionee is entitled to purchase under a Nonqualified Option
shall be determined by the Committee but shall not be less than eighty-five
percent (85%) of the Fair Market Value Per Share on the date of the grant of the
Nonqualified Option. The exercise price per Share for each Share which the
Optionee is entitled to purchase under an Incentive Stock Option shall be
determined by the Committee but shall not be less than the Fair Market Value Per
Share on the date of the grant of the Incentive Stock Option; provided, however,
that the exercise price shall not be less than one hundred ten percent (110%) of
the Fair Market Value Per Share on the date of the grant of the Incentive Stock
Option in the case of an individual then owning (within the meaning of Code
Section 425(d)) more than ten percent (10%) of the total combined voting power
of all classes of stock of the Corporation or of its parent or Subsidiaries.
6.2.2 Payment of Exercise Price. The consideration to be paid
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for the Shares to be issued upon exercise of an Option, including the method of
payment, shall be determined by the Committee and may consist of promissory
notes, shares of the common stock of the Corporation or such other consideration
and method of payment for the Shares as may be permitted under applicable state
and federal laws.
6.3 Exercise of Options.
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6.3.1 Each Option granted under this Plan shall be subject to
vesting on terms and conditions to be determined by the Committee in its sole
discretion; provided, however, that with respect to any Option granted under
this Plan no portion of the Option shall be exercisable during the first six
months from the date of grant and thereafter no more than twenty percent (20%)
of the Option shall be exercisable during the second six month period from the
date of grant, no more than forty percent (40%) of the Option shall be
exercisable during the third six month period from the date of grant, and no
more than sixty percent (60%) of the Option shall be exercisable during the
fourth six month period from the date of grant. Each Option granted under this
Plan shall be otherwise exercisable at such times and under such conditions as
may be determined by the Committee at the time of the grant of the Option and as
shall be permissible under the terms of the Plan. In no event shall an Option be
exercisable after the expiration of ten (10) years from the date it is granted,
and in the case of an Optionee owning (within the meaning of Code Section
425(d)), at the time an Incentive Stock Option is granted, more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Corporation or of its parent or Subsidiaries, such Incentive Stock Option shall
not be exercisable later than five (5) years after the date of grant.
6.3.2 An Optionee may purchase less than the total number of
Shares for which the Option is exercisable, provided that a partial exercise of
an Option may not be for less than One Hundred (100) Shares and shall not
include any fractional shares.
6.4 Nontransferability of Options. All Options granted under this
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Plan shall be nontransferable, either voluntarily or by operation of law,
otherwise than by will or the laws of descent and distribution, and shall be
exercisable during the Optionee's lifetime only by such Optionee.
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6.5 Effect of Termination of Employment or Other Relationship.
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Except as otherwise determined by the Committee in connection with the grant of
Nonqualified Options, the effect of termination of an Optionee's employment or
other relationship with the Corporation on such Optionee's rights to acquire
Shares pursuant to the Plan shall be as follows:
6.5.1 Termination for Other than Death, Disability or Cause. If
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an Optionee ceases to be employed by, or ceases to have a relationship with, the
Corporation for any reason other than for death, disability or cause, such
Optionee's Options shall expire not later than three (3) months thereafter.
During such three (3) month period and prior to the expiration of the Option by
its terms, the Optionee may exercise any Option granted to him, but only to the
extent such Options were exercisable on the date of termination of his
employment or relationship and except as so exercised, such Options shall expire
at the end of such three (3) month period unless such Options by their terms
expire before such date. The decision as to whether a termination for a reason
other than disability, cause or death has occurred shall be made by the
Committee, whose decision shall be final and conclusive, except that employment
shall not be considered terminated in the case of sick leave or other bona fide
leave of absence approved by the Corporation.
6.5.2 Death or Disability. If an Optionee ceases to be employed
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by, or ceases to have a relationship with, the Corporation by reason of
disability (within the meaning of Code Section 22(e)(3)) or death, such
Optionee's Options shall expire not later than one (1) year thereafter. During
such one (1) year period and prior to the expiration of the Option by its terms,
the Optionee may exercise any Option granted to him, but only to the extent such
Options were exercisable on the date the Optionee ceased to be employed by, or
ceased to have a relationship with, the Corporation by reason of disability or
death and except as so exercised, such Options shall expire at the end of such
one (1) year period unless such Options by their terms expire before such date.
The decision as to whether a termination by reason of disability has occurred
shall be made by the Committee, whose decision shall be final and conclusive.
6.5.3 Termination for Cause. If an Optionee's employment by, or
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relationship with, the Corporation is terminated for cause, such Optionee's
Option shall expire immediately; provided, however, the Committee may, in its
sole discretion, within thirty (30) days of such termination, waive the
expiration of the Option by giving written notice of such waiver to the Optionee
at such Optionee's last known address. In the event of such waiver, the
Optionee may exercise the Option only to such extent, for such time, and upon
such terms and conditions as if such Optionee had ceased to be employed by, or
ceased to have a relationship with, the Corporation upon the date of such
termination for a reason other than disability, cause, or death. Termination
for cause shall include termination for malfeasance or gross misfeasance in the
performance of duties or conviction of illegal activity in connection therewith
or any conduct detrimental to the interests of the Corporation. The
determination of the Committee with respect to whether a termination for cause
has occurred shall be final and conclusive.
6.6 Withholding of Taxes. As a condition to the exercise, in whole
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or in part, of any Options the Board of Directors may in its sole discretion
require the Optionee to pay, in addition to the purchase price of the Shares
covered by the Option an amount equal to any Federal, state or local taxes that
may be required to be withheld in connection with the exercise of such Option.
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6.7 No Rights to Continued Employment or Relationship. Nothing
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contained in this Plan or in any Option Agreement shall obligate the Corporation
to employ or have another relationship with any Optionee for any period or
interfere in any way with the right of the Corporation to reduce such Optionee's
compensation or to terminate the employment of or relationship with any Optionee
at any time.
6.8 Time of Granting Options. The time an Option is granted,
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sometimes referred to herein as the date of grant, shall be the day the
Corporation executes the Option Agreement; provided, however, that if
appropriate resolutions of the Committee indicate that an Option is to be
granted as of and on some prior or future date, the time such Option is granted
shall be such prior or future date.
6.9 Privileges of Stock Ownership. No Optionee shall be entitled to
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the privileges of stock ownership as to any Shares not actually issued and
delivered to such Optionee. No Shares shall be purchased upon the exercise of
any Option unless and until, in the opinion of the Corporation's counsel, any
then applicable requirements of any laws or governmental or regulatory agencies
having jurisdiction and of any exchanges upon which the stock of the Corporation
may be listed shall have been fully complied with.
6.10 Securities Laws Compliance. The Corporation will diligently
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endeavor to comply with all applicable securities laws before any Options are
granted under the Plan and before any Shares are issued pursuant to Options.
Without limiting the generality of the foregoing, the Corporation may require
from the Optionee such investment representation or such agreement, if any, as
counsel for the Corporation may consider necessary or advisable in order to
comply with the Securities Act of 1933 as then in effect, and may require that
the Optionee agree that any sale of the Shares will be made only in such manner
as is permitted by the Committee. The Committee in its discretion may cause the
Shares underlying the Options to be registered under the Securities Act of 1933,
as amended, by the filing of a Form S-8 Registration Statement covering the
Options and Shares underlying such Options. Optionee shall take any action
reasonably requested by the Corporation in connection with registration or
qualification of the Shares under federal or state securities laws.
6.11 Option Agreement. Each Incentive Stock Option and Nonqualified
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Option granted under this Plan shall be evidenced by the appropriate written
Stock Option Agreement ("Option Agreement") executed by the Corporation and the
Optionee in a form substantially the same as the appropriate form of Option
Agreement attached as Exhibit I or II hereto (and made a part hereof by this
reference) and shall contain each of the provisions and agreements specifically
required to be contained therein pursuant to this Section 6, and such other
terms and conditions as are deemed desirable by the Committee and are not
inconsistent with the purpose of the Plan as set forth in Section 1.
7. PLAN AMENDMENT AND TERMINATION.
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7.1 Authority of Committee. The Committee may at any time
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discontinue granting Options under the Plan or otherwise suspend, amend or
terminate the Plan and may, with the consent of an Optionee, make such
modification of the terms and conditions of such Optionee's Option as it shall
deem advisable; provided that, except as permitted under the provisions of
Section 5.2, the Committee shall have no authority to make any amendment or
modification to this Plan or any outstanding Option thereunder which would: (i)
increase the
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maximum number of shares which may be purchased pursuant to Options granted
under the Plan, either in the aggregate or by an Optionee (except pursuant to
Section 5.2); (ii) change the designation of the class of the employees eligible
to receive Incentive Stock Options; (iii) extend the term of the Plan or the
maximum Option period thereunder; (iv) decrease the minimum Incentive Stock
Option price or permit reductions of the price at which shares may be purchased
for Incentive Stock Options granted under the Plan; or (v) cause Incentive Stock
Options issued under the Plan to fail to meet the requirements of incentive
stock options under Code Section 422. An amendment or modification made pursuant
to the provisions of this Section 7 shall be deemed adopted as of the date of
the action of the Committee effecting such amendment or modification and shall
be effective immediately, unless otherwise provided therein, subject to approval
thereof (1) within twelve (12) months before or after the effective date by
stockholders of the Corporation holding not less than a majority vote of the
voting power of the Corporation voting in person or by proxy at a duly held
stockholders meeting when required to maintain or satisfy the requirements of
Code Section 422 with respect to Incentive Stock Options, and (2) by any
appropriate governmental agency. No Option may be granted during any suspension
or after termination of the Plan.
7.2 Ten (10) Year Maximum Term. Unless previously terminated by the
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Committee, this Plan shall terminate on April 28, 2007, and no Options shall be
granted under the Plan thereafter.
7.3 Effect on Outstanding Options. Amendment, suspension or
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termination of this Plan shall not, without the consent of the Optionee, alter
or impair any rights or obligations under any Option theretofore granted.
8. EFFECTIVE DATE OF PLAN. This Plan shall be effective as of April 28,
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1997, the date the Plan was adopted by the Board of Directors, subject to the
approval of the Plan by the affirmative vote of a majority of the issued and
outstanding Shares of common stock of the Corporation represented and voting at
a duly held meeting at which a quorum is present within twelve (12) months
thereafter. The Committee shall be authorized and empowered to make grants of
Options pursuant to this Plan prior to such approval of this Plan by the
stockholders; provided, however, in such event the Option grants shall be made
subject to the approval of both this Plan and such Option grants by the
stockholders in accordance with the provisions of this Section 8.
9. MISCELLANEOUS PROVISIONS.
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9.1 Exculpation and Indemnification. The Corporation shall indemnify
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and hold harmless the Committee from and against any and all liabilities, costs
and expenses incurred by such persons as a result of any act, or omission to
act, in connection with the performance of such persons' duties,
responsibilities and obligations under the Plan, other than such liabilities,
costs and expenses as may result from the gross negligence, bad faith, willful
conduct and/or criminal acts of such persons.
9.2 Governing Law. The Plan shall be governed and construed in
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accordance with the laws of the State of Delaware and the Code.
9.3 Compliance with Applicable Laws. The inability of the
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Corporation to obtain from any regulatory body having jurisdiction authority
deemed by the Corporation's
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counsel to be necessary to the lawful issuance and sale of any Shares upon the
exercise of an Option shall relieve the Corporation of any liability in respect
of the non-issuance or sale of such Shares as to which such requisite authority
shall not have been obtained.
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