SELECTQUOTE, INC.
STOCK OPTION AGREEMENT
FOR
1999 STOCK OPTION PLAN
I. NOTICE OF STOCK OPTION GRANT
Optionee's Name and Address:
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Social Security Number/Tax ID
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You have been granted an option to purchase shares of Common Stock of
the Company, subject to the terms and conditions of the Plan and this Option
Agreement, as follows:
Grant Number
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Date of Grant
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Vesting Commencement Date
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Exercise Price per Share $
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Total Number of Shares Granted
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Total Exercise Price $
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Type of Option:
--------- Incentive Stock Option
--------- Non-Qualified Stock Option
Term/Expiration Date:
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Termination Period
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VESTING SCHEDULE:
Subject to other limitations set forth in this Agreement, this
Option may be exercised, in whole or in part, in accordance with the
following schedule:
One-third (1/3) of the Shares subject to the Option shall vest
twelve months after the Vesting Commencement Date, and 1/24 of the remaining
Shares subject to the Option shall vest each month thereafter.
TERMINATION PERIOD:
This Option may be exercised for thirty (30) days after termination
of Optionee's employment or consulting relationship, or such longer period as
may be applicable upon the death or disability of Optionee as provided in the
Agreement. In the event of Optionee's change in status from Employee to
Consultant or Consultant to Employee, this Option Agreement shall remain in
effect; provided, however, that in the event of a change in status from
Employee to Consultant, Optionee's Incentive Stock Option shall cease to be
treated as an Incentive Stock Option and shall be treated as a Non-Qualified
Stock Option on the thirty-first (31st) day following such change in status.
In no event shall this Option be exercised later than the Term/Expiration
Date as provided above.
II. AGREEMENT
1. GRANT OF OPTION. SelectQuote, Inc., a Delaware
corporation (the "Company"), hereby grants to Optionee named in the Notice of
Stock Option Grant (the "Optionee"), an option (the "Option") to purchase the
total number of shares of Common Stock (the "Shares") set forth in the Notice
of Stock Option Grant, at the exercise price per share set forth in the
Notice of Stock Option Grant (the "Exercise Price") subject to the terms,
definitions and provisions of the Company's 1999 Stock Option Plan (the
"Plan") adopted by the Company, which is incorporated herein by reference.
Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Option Agreement.
If designated in the Notice of Stock Option Grant as an
Incentive Stock Option, this Option is intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code"). To the extent that the Option, or any
portion thereof, does not qualify as an incentive stock option under the Code
because the aggregate fair market value (as described below) exceeds
$100,000, the Option or portion thereof shall constitute an incentive stock
option under the Plan in such calendar year only to the extent of such
$100,000 limitation. The "aggregate fair market value," as used above, shall
include the fair market value (determined at the grant date) of the Shares
for which the Option or portion thereof first becomes exercisable hereunder
PLUS the aggregate fair market value (determined as of the respective date or
dates of grant) of the Shares or other securities for which the Option or one
or more other incentive stock options granted to Optionee prior to the grant
date (whether under the Plan or any other option plan of the Corporation or
any Parent or Subsidiary) first becomes exercisable during the calendar year.
To the extent that the fair market value of the Shares for which the Option
first becomes exercisable in any calendar year exceeds such $100,000
limitation, the Option may nevertheless be exercised for those excess Shares
in such calendar year as a Non-Qualified Stock Option.
2. EXERCISE OF OPTION.
(a) RIGHT TO EXERCISE. This Option shall be exercisable
during its term in accordance with the Vesting Schedule set out in the Notice
of Stock Option Grant and with the applicable provisions of the Plan and this
Option Agreement. In the event of Optionee's Termination of Service, this
Option shall be exercisable in accordance with the applicable provisions of
the Plan and this Option Agreement. This Option shall be subject to the
provisions of Section 14(b) of the Plan relating to the exercisability or
termination of the Option in the event of a Corporate Transaction.
Notwithstanding the foregoing, this Option will not be exercisable until the
Corporation has furnished to Optionee the information required pursuant to
Rule 701(e) under the Securities Act of 1933, as amended.
(b) METHOD OF EXERCISE. This Option shall be exercisable
only by delivery of an Exercise Notice (attached as Exhibit A) which shall
state the election to exercise the Option, the whole number of Shares in
respect of which the Option is being exercised, and such other provisions as
may be required by
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the Committee. Such Exercise Notice shall be signed by Optionee and shall be
delivered in person or by certified mail to the Secretary of the Company
accompanied by payment of the Exercise Price. The Option shall be deemed to
be exercised upon receipt by the Company of such written notice accompanied
by the Exercise Price.
No Shares will be issued pursuant to the exercise of the
Option unless such issuance and such exercise shall comply with all
applicable laws. Assuming such compliance, for income tax purposes, the
Shares shall be considered transferred to Optionee on the date on which the
Option is exercised with respect to such Shares.
3. OPTIONEE'S REPRESENTATIONS. In the event the Shares
purchasable pursuant to the exercise of the Option have not been registered
under the Securities Act of 1933, as amended, at the time the Option is
exercised, Optionee shall, if required by the Company, concurrently with the
exercise or all or any portion the Option, deliver to the Company his or her
Investment Representation Statement in the form attached hereto as Exhibit B.
4. TAXES. No Shares will be issued to Optionee or other
person pursuant to the exercise of the Option until Optionee or other person
has made arrangements acceptable to the Committee for the satisfaction of
foreign, federal, state and local income and employment tax withholding
obligations.
5. METHOD OF PAYMENT. Payment of the exercise price shall
be by any of the following, or a combination thereof, at the election of
Optionee:
(a) cash;
(b) certified or bank cashier's check; or
(c) for as long as there exists a public market for the
Company's Common Stock on the date of exercise, by surrender of shares of the
Company's Common Stock, provided that if such shares were acquired upon
exercise of an incentive stock option, Optionee must have first satisfied the
holding period requirements under Section 422(a)(1) of the Code. In this case
payment shall be made as follows:
(i) In addition to the execution and delivery of the
Exercise Notice attached as EXHIBIT A, Optionee shall deliver to the
Secretary of the Company a written notice which shall set forth the portion
of the purchase price Optionee wishes to pay with Common Stock, and the
number of shares of such Common Stock Optionee intends to surrender pursuant
to the exercise of this Option, which shall be determined by dividing the
aforementioned portion of the purchase price by the average of the last
reported bid and asked prices per share of Common Stock of the Company, as
reported in THE WALL STREET JOURNAL (or, if not so reported, as otherwise
reported by Nasdaq or, in the event the Common Stock is listed on a national
securities exchange, or on the Nasdaq National Market (or any successor
national market system), the closing price of Common Stock of the Company on
such exchange as reported in THE WALL STREET JOURNAL, for the day on which
the notice of exercise is sent or delivered);
(ii) Fractional shares shall be disregarded and
Optionee shall pay in cash an amount equal to such fraction multiplied by the
price determined under subparagraph (i) above;
(iii) The written notice shall be accompanied by a
duly endorsed blank stock power with respect to the number of Shares set
forth in the notice, and the certificate(s) representing said Shares shall be
delivered to the Company at its principal offices within three (3) working
days from the date of the notice of exercise;
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(iv) The Optionee hereby authorizes and directs the
Secretary of the Company to transfer so many of the Shares represented by
such certificate(s) as are necessary to pay the purchase price in accordance
with the provisions herein; and
(v) Notwithstanding any other provision herein,
Optionee shall only be permitted to pay the purchase price with Shares of the
Company's Common Stock owned by him as of the exercise date in the manner and
within the time periods allowed under 17 CFR Section 240.16b-3 promulgated
under the Securities Exchange Act of 1934 as such regulation is presently
constituted, as it is amended from time to time, and as it is interpreted now
or hereafter by the Securities and Exchange Commission.
The Optionee may elect to pay the exercise price by
authorizing a third party to sell Shares subject to the Option and remit to
the Company a sufficient portion of the sale proceeds to pay the entire
exercise price and any tax withholding resulting from such exercise.
6. RESTRICTIONS ON EXERCISE. This Option may be exercised
prior to the time that the Plan has been approved by the shareholders of the
Company; provided, however, that all Shares issued upon any such exercise
shall be rescinded if shareholder approval is not obtained within the time
prescribed, and Shares issued on any such exercise shall not be counted in
determining whether shareholder approval is obtained. In addition, this
Option may not be exercised if the issuance of the Shares subject to the
Option upon such exercise would constitute a violation of any applicable laws.
7. TERMINATION OF RELATIONSHIP. In the event of Optionee's
Termination of Service, Optionee may, to the extent otherwise so entitled at
the date of such termination (the "Termination Date"), exercise this Option
during the Termination Period set out in the Notice of Stock Option Grant.
Except as provided in Sections 8 and 9, below, to the extent that Optionee
was not entitled to exercise this Option on the Termination Date, or if
Optionee does not exercise this Option within the Termination Period, the
Option shall terminate.
8. DISABILITY OF OPTIONEE. In the event of Optionee's
Termination of Service as a result of his or her disability, Optionee may,
but only within six (6) months from the Termination Date (and in no event
later than the Term/Expiration Date), exercise the Option to the extent
otherwise entitled to exercise it on the Termination Date; provided, however,
that if such disability is not a "disability" as such term is defined in
Section 22(e)(3) of the Code and the Option is an Incentive Stock Option,
such Incentive Stock Option shall cease to be treated as an Incentive Stock
Option and shall be treated as a Non-Qualified Stock Option on the
ninety-first (91st) day following the Termination Date. To the extent that
Optionee was not entitled to exercise the Option on the Termination Date, or
if Optionee does not exercise such Option to the extent so entitled within
the time specified herein, the Option shall terminate.
9. DEATH OF OPTIONEE. In the event of Optionee's death, the
Option may be exercised at any time within six (6) months following the date
of death (and in no event later than the Term/Expiration Date) by Optionee's
estate or by a person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent Optionee could exercise the
Option at the date of death.
10. NON-TRANSFERABILITY OF OPTION. This Option may not be
transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by
Optionee. The terms of this Option shall be binding upon the executors,
administrators, heirs and successors of Optionee.
11. TERM OF OPTION. This Option may be exercised only
within the term set out in the Notice of Stock Option Grant, and may be
exercised during such term only in accordance with the Plan and the terms of
this Option Assignment.
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12. TAX CONSEQUENCES. Set forth below is a brief summary as
of the date of this Option Agreement of some of the federal and California
tax consequences of exercise of this Option and disposition of the Shares.
THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX LAWS AND REGULATIONS ARE
SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
(a) EXERCISE OF INCENTIVE STOCK OPTION. If this Option
qualifies as an Incentive Stock Option, there will be no regular federal
income tax liability or California income tax liability upon the exercise of
the Option, although the excess, if any, of the Fair Market Value of the
Shares on the date of exercise over the Exercise Price will be treated as an
adjustment to the alternative minimum tax for federal tax purposes and may
subject Optionee to the alternative minimum tax in the year of exercise.
(b) EXERCISE OF INCENTIVE STOCK OPTION FOLLOWING
DISABILITY. If Optionee's Termination of Service occurs as a result of
disability that is not total and permanent disability as defined in Section
22(e)(3) of the Code, to the extent permitted on the date of termination,
Optionee must exercise an Incentive Stock Option within 30 days of such
termination for the Incentive Stock Option to be qualified as an Incentive
Stock Option.
(c) EXERCISE OF NON-QUALIFIED STOCK OPTION. There may be a
regular federal income tax liability and California income tax liability upon
the exercise of a Non-Qualified Stock Option. The Optionee will be treated as
having received compensation income (taxable at ordinary income tax rates)
equal to the excess, if any, of the Fair Market Value of the Shares on the
date of exercise over the Exercise Price. If Optionee is an Employee or a
former Employee, the Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount in cash equal to a percentage of this compensation
income at the time of exercise, and may refuse to honor the exercise and
refuse to deliver Shares if such withholding amounts are not delivered at the
time of exercise.
(d) DISPOSITION OF SHARES. In the case of a Non-Qualified
Stock Option, if Shares are held for at least one year, any gain realized on
disposition of the Shares will be treated as long-term capital gain for
federal and California income tax purposes. In the case of an Incentive Stock
Option, if Shares transferred pursuant to the Option are held for at least
one year after receipt of the Shares and are disposed of at least two years
after the Date of Grant, any gain realized on disposition of the Shares also
will be treated as long-term capital gain for federal and California income
tax purposes. If Shares purchased under an Incentive Stock Option are
disposed of within such one-year or two-year periods, any gain realized on
such disposition will be treated as compensation income (taxable at ordinary
income rates) to the extent of the difference between the Exercise Price and
the lesser of (i) the Fair Market Value of the Shares on the date of
exercise, or (ii) the sale price of the Shares.
13. LOCK-UP AGREEMENT.
(a) AGREEMENT. Optionee, if requested by the Company and
the lead underwriter of any public offering of the Common Stock or other
securities of the Company (the "Lead Underwriter"), hereby irrevocably agrees
not to sell, contract to sell, grant any option to purchase, transfer the
economic risk of ownership in, make any short sale of, pledge or otherwise
transfer or dispose of any interest in any Common Stock or any securities
convertible into or exchangeable or exercisable for or any other rights to
purchase or acquire Common Stock (except Common Stock included in such public
offering or acquired on the public market after such offering) during the
180-day period following the effective date of a registration statement of
the Company filed under the Securities Act of 1933, as amended, or such
shorter period of time as the Lead Underwriter shall specify. Optionee
further agrees to sign such documents as may be requested by the Lead
Underwriter to effect the foregoing and agrees that the Company may impose
stop-transfer instructions with respect to such Common Stock subject until
the end of such period. The Company and Optionee acknowledge
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that each Lead Underwriter of a public offering of the Company's stock,
during the period of such offering and for the 180-day period thereafter, is
an intended beneficiary of this Section 16.
(b) PERMITTED TRANSFERS. Notwithstanding the foregoing,
Section 16(a) shall not prohibit Optionee from transferring any shares of
Common Stock or securities convertible into or exchangeable or exercisable
for the Company's Common Stock to the extent such transfer is not otherwise
prohibited by this Agreement, either during Optionee's lifetime or on death
by will or intestacy to Optionee's immediate family or to a trust the
beneficiaries of which are exclusively Optionee and/or a member or members of
Optionee's immediate family; provided, however, that prior to any such
transfer, each transferee shall execute an agreement pursuant to which each
transferee shall agree to receive and hold such securities subject to the
provisions of Section 16 hereof. For the purposes of this subsection, the
term "immediate family" shall mean spouse, lineal descendant, father, mother,
brother or sister of the transferor.
(c) NO AMENDMENT WITHOUT CONSENT OF UNDERWRITER. During the
period from identification as a Lead Underwriter in connection with any
public offering of the Company's Common Stock until the earlier of (i) the
expiration of the lock-up period specified in Section 16(a) in connection
with such offering or (ii) the abandonment of such offering by the Company
and the Lead Underwriter, the provisions of this Section 16 may not be
amended or waived except with the consent of the Lead Underwriter.
14. ENTIRE AGREEMENT: GOVERNING LAW. The Plan is
incorporated herein by reference. The Plan and this Option Agreement
constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject matter
hereof, and may not be modified adversely to Optionee's interest except by
means of a writing signed by the Company and Optionee. This agreement is
governed by California law except for that body of law pertaining to conflict
of laws.
15. HEADINGS. The captions used in this Agreement are
inserted for convenience and shall not be deemed a part of this Agreement for
construction or interpretation.
16. INTERPRETATION. Any dispute regarding the
interpretation of this Option Agreement shall be submitted by Optionee or by
the Company forthwith to the Board or the Committee that administers the
Plan, which shall review such dispute at its next regular meeting. The
resolution of such dispute by the Board or the Committee shall be final and
binding on all persons.
SELECTQUOTE, INC., a Delaware corporation
By:
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Its:
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES
PURSUANT TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING CONSULTANCY OR
EMPLOYMENT AT THE WILL OF THE COMPANY (NOT THROUGH THE ACT OF BEING HIRED,
BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER). OPTIONEE FURTHER
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS AGREEMENT, NOR IN THE COMPANY'S
1999 STOCK OPTION PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL
CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT OR
CONSULTANCY BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S
RIGHT OR THE COMPANY'S RIGHT TO TERMINATE OPTIONEE'S EMPLOYMENT OR
CONSULTANCY AT ANY TIME, WITH OR WITHOUT CAUSE.
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Optionee acknowledges receipt of a copy of the Plan and
represents that he is familiar with the terms and provisions thereof, and
hereby accepts this Option Agreement subject to all of the terms and
provisions thereof. Optionee has reviewed the Plan and this Option Agreement
in their entirety, has had an opportunity to obtain the advice of counsel
prior to executing this Option Agreement and fully understands all provisions
of the Option Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon
any questions arising under the Plan or this Option Agreement. Optionee
further agrees to notify the Company upon any change in the residence address
indicated below.
Dated: Signed:
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Optionee
Residence Address:
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EXHIBIT A
1999 STOCK OPTION PLAN
EXERCISE NOTICE
SELECTQUOTE, INC.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Secretary
1. EXERCISE OF OPTION. Effective as of today,
______________, ________________ ________________, the undersigned
("Optionee") hereby elects to exercise Optionee's option to purchase
___________ shares of the Common Stock (the "Shares") of SelectQuote, Inc.
(the "Company") under and pursuant to the Company's 1999 Stock Option Plan
(the "Plan") and the [ ] Incentive [ ]Non-Qualified Stock Option Agreement
dated ______________, ________ (the "Option Agreement").
2. REPRESENTATIONS OF OPTIONEE. Optionee acknowledges that
Optionee has received, read and understood the Plan and the Option Agreement
and agrees to abide by and be bound by their terms and conditions.
3. RIGHTS AS SHAREHOLDER. Until the stock certificate
evidencing such Shares is issued (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the
Company), no right to vote or receive dividends or any other rights as a
shareholder shall exist with respect to the Optioned Stock, notwithstanding
the exercise of the Option. The Company shall issue (or cause to be issued)
such stock certificate promptly after the Option is exercised. No adjustment
will be made for a dividend or other right for which the record date is prior
to the date the stock certificate is issued, except as provided in Section 10
of the Plan. Optionee shall enjoy rights as a shareholder until such time as
Optionee disposes of the Shares or the Company.
4. DELIVERY OF PAYMENT. Optionee herewith delivers to the
Company the full Exercise Price for the Shares.
5. TAX CONSULTATION. Optionee understands that Optionee may
suffer adverse tax consequences as a result of Optionee's purchase or
disposition of the Shares. Optionee represents that Optionee has consulted
with any tax consultants Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on the
Company for any tax advice.
6. TAXES. Optionee agrees to satisfy all applicable
federal, state and local income and employment tax withholding obligations
and has made arrangements acceptable to the Company to satisfy such
obligations. Optionee also agrees, as partial consideration for the
designation of the Option as an Incentive Stock Option, to notify the Company
in writing within thirty (30) days of any disposition of any shares acquired
by exercise of the Option if such disposition occurs within two (2) years
from the Grant Date or within one (1) year from the date the Shares were
transferred to Optionee. If the Company is required to satisfy any federal,
state or local income or employment tax withholding obligations as a result
of such an early disposition, Optionee agrees to satisfy the amount of such
withholding in a manner that the Committee prescribes.
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7. RESTRICTIVE LEGENDS. Optionee understands and agrees
that the Company shall cause the legends set forth below or legends
substantially equivalent thereto, to be placed upon any certificate(s)
evidencing ownership of the Shares together with any other legends that may
be required by the Company or by state or federal securities laws:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF
THESE SECURITIES, SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN
COMPLIANCE THEREWITH.
8. SUCCESSORS AND ASSIGNS. The Company may assign any of
its rights under this Exercise Notice to single or multiple assignees, and
this Agreement shall inure to the benefit of the successors and assigns of
the Company. Subject to the restrictions on transfer herein set forth, this
Exercise Notice shall be binding upon Optionee and his or her heirs,
executors, administrators, successors and assigns.
9. INTERPRETATION. Any dispute regarding the interpretation
of this Exercise Notice shall be submitted by Optionee or by the Company
forthwith to the Company's Board of Directors or the Committee that
administers the Plan, which shall review such dispute at its next regular
meeting. The resolution of such a dispute by the Board or Committee shall be
final and binding on all persons.
10. GOVERNING LAW; SEVERABILITY. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California excluding that body of law pertaining to conflicts of law. Should
any provision of this Agreement be determined by a court of law to be illegal
or unenforceable, the other provisions shall nevertheless remain effective
and shall remain enforceable.
11. NOTICES. Any notice required or permitted hereunder
shall be given in writing and shall be deemed effectively given upon personal
delivery or upon deposit in the United States mail by certified mail, with
postage and fees prepaid, addressed to the other party at its address as
shown below beneath its signature, or to such other address as such party may
designate in writing from time to time to the other party.
12. FURTHER INSTRUMENTS. The parties agree to execute such
further instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this agreement.
13. ENTIRE AGREEMENT. The Plan and the Option Agreement are
incorporated herein by reference. This Exercise Notice, the Plan, the Option
Agreement and the Investment Representation Statement constitute the entire
agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not
be modified adversely to Optionee's interest except by means of a writing
signed by the Company and Optionee.
Submitted by: Accepted by:
OPTIONEE: SELECTQUOTE, INC.
By:
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Its:
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(Signature)
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Address: Address:
-------- --------
------------------------------ 595 Market Street, 6th Floor
------------------------------ San Francisco, CA 94105
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EXHIBIT B
1998 STOCK OPTION PLAN
INVESTMENT REPRESENTATION STATEMENT
OPTIONEE :
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COMPANY : SELECTQUOTE, INC.
SECURITY : COMMON STOCK
AMOUNT :
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DATE :
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In connection with the purchase of the above-listed Securities, the
undersigned Optionee represents to the Company the following:
(a) Optionee is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company
to reach an informed and knowledgeable decision to acquire the Securities.
Optionee is acquiring these Securities for investment for Optionee's own
account only and not with a view to, or for resale in connection with, any
"distribution" thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
(b) Optionee acknowledges and understands that the
Securities constitute "restricted securities" under the Securities Act and
have not been registered under the Securities Act in reliance upon a specific
exemption therefrom, which exemption depends upon among other things, the
bona fide nature of Optionee's investment intent as expressed herein. In this
connection, Optionee understands that, in the view of the Securities and
Exchange Commission, the statutory basis for such exemption may be
unavailable if Optionee's representation was predicated solely upon a present
intention to hold these Securities for the minimum capital gains period
specified under tax statutes, for a deferred sale, for or until an increase
or decrease in the market price of the Securities, or for a period of one
year or any other fixed period in the future. Optionee further understands
that the Securities must be held indefinitely unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. Optionee further acknowledges and understands that the Company is
under no obligation to register the Securities. Optionee understands that the
certificate evidencing the Securities will be imprinted with a legend which
prohibits the transfer of the Securities unless they are registered or such
registration is not required in the opinion of counsel satisfactory to the
Company.
(c) Optionee is familiar with the provisions of Rule 701
and Rule 144, each promulgated under the Securities Act, which, in substance,
permit limited public resale of "restricted securities" acquired, directly or
indirectly from the issuer thereof, in a non-public offering subject to the
satisfaction of certain conditions. Rule 701 provides that if the issuer
qualifies under Rule 701 at the time of the grant of the Option to Optionee,
the exercise will be exempt from registration under the Securities Act. In
the event the Company becomes subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, ninety (90) days
thereafter (or such longer period as any market stand-off agreement may
require) the Securities exempt under Rule 701 may be resold, subject to the
satisfaction of certain of the conditions specified by Rule 144, including:
(1) the resale being made through a broker in an unsolicited "broker's
transaction" or in transactions directly with a market maker (as said term is
defined under the Securities Exchange Act of 1934); and, in the case of an
affiliate, (2) the availability of certain public information about
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the Company, (3) the amount of Securities being sold during any three month
period not exceeding the limitations specified in Rule 144(e), and (4) the
timely filing of a Form 144, if applicable.
In the event that the Company does not qualify under Rule
701 at the time of grant of the Option, then the Securities may be resold in
certain limited circumstances subject to the provisions of Rule 144, which
requires the resale to occur not less than one year after the later of the
date the Securities were sold by the Company or the date the Securities were
sold by an affiliate of the Company, within the meaning of Rule 144; and, in
the case of acquisition of the Securities by an affiliate, or by a
non-affiliate who subsequently holds the Securities less than two years, the
satisfaction of the conditions set forth in sections (1), (2), (3) and (4) of
the paragraph immediately above.
(d) Optionee hereby agrees that if so requested by the
Company or any representative of the underwriters in connection with any
registration of the offering of any securities of the Company under the
Securities Act, Optionee shall not sell or otherwise transfer any Shares or
other securities of the Company during the 180-day period following the
effective date of a registration statement of the Company filed under the
Securities Act; provided, however, that such restriction shall only apply to
public offerings which include securities to be sold on behalf of the Company
to the public in an underwritten public offering under the Securities Act.
The Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such 180-day period.
(e) Optionee further understands that in the event all of
the applicable requirements of Rule 701 or 144 are not satisfied,
registration under the Securities Act, compliance with Regulation A, or some
other registration exemption will be required; and that, notwithstanding the
fact that Rules 144 and 701 are not exclusive, the Staff of the Securities
and Exchange Commission has expressed its opinion that persons proposing to
sell private placement securities other than in a registered offering and
otherwise than pursuant to Rules 144 or 701 will have a substantial burden of
proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk. Optionee
understands that no assurances can be given that any such other registration
exemption will be available in such event.
Signature of Optionee:
-----------------------------------
Date:
---------------------------
12
