1
EXHIBIT 10.10
AMENDED AND RESTATED
1996 NON-EMPLOYEE DIRECTOR PLAN
BILLING CONCEPTS CORP.
(AMENDED AS OF JANUARY 30, 1998)
1. Purpose. The purpose of this Plan is to advance the interests of
Billing Concepts Corp., a Delaware corporation (the "Company"), by providing an
additional incentive to attract and retain qualified and competent directors,
upon whose efforts and judgment the success of the Company is largely dependent,
through the encouragement of stock ownership in the Company by such persons.
2. Definitions. As used herein, the following terms shall have the
meanings indicated:
(a) "Board" shall mean the Board of Directors of Billing Concepts Corp.
(b) "Committee" shall mean the committee, if any, appointed by the
Board pursuant to Section 12 hereof.
(c) "Date of Grant" shall mean the date on which an Option is granted
to an Eligible Person pursuant to Section 4 hereof.
(d) "Director" shall mean a member of the Board.
(e) "Eligible Person(s)" shall mean those persons who are Directors of
the Company and who are not employees of the Company or a Subsidiary.
(f) "Fair Market Value" of a Share on any date of reference shall be
the closing price on such date, or, if such date is not a business day, the
business day immediately preceding such date. For this purpose, the closing
price of the Shares on any business day shall be (i) if the Shares are listed or
admitted for trading on any United States national securities exchange, the last
reported sales price of the Shares on such exchange, as reported in any
newspaper of general circulation, (ii) if actual transactions in the Shares are
included in the Nasdaq National Market or are reported on a consolidated
transaction reporting system, the closing sales price of the Shares on such
system, (iii) if Shares are otherwise quoted on the Nasdaq system, or any
similar system of automated dissemination of quotations of securities prices in
common use, the mean between the closing high bid and low asked quotations for
such day of the Shares on such system, and (iv) if none of clause (i), (ii) or
(iii) is applicable, the mean between the high bid and low asked quotations for
Shares as reported by the National Daily Quotation Service if at least two
securities dealers have inserted both bid and asked quotations for the Shares on
at least five (5) of the ten (10) preceding trading days.
(g) "Internal Revenue Code" or "Code" shall mean the Internal Revenue
Code of 1986, as it now exists or may be amended from time to time.
2
(h) "Non-qualified Stock Option" shall mean an option that is not an
incentive stock option as defined in Section 422 of the Internal Revenue Code.
(i) "Option" shall mean any option granted under Section 4 of this
Plan.
(j) "Optionee" shall mean a person to whom an Option is granted under
this Plan or any successor to the rights of such person under this Plan by
reason of the death of such person.
(k) "Plan" shall mean this 1996 Non-Employee Director Plan of Billing
Concepts Corp., as amended from time to time.
(l) "Share(s)" shall mean a share or shares of the common stock, par
value one cent ($0.01) per share, of the Company.
(m) "Subsidiary" shall mean a subsidiary corporation of the Company as
defined in Section 424(f) of the Code.
3. Shares and Options. The maximum number of Shares to be issued
pursuant to Options under this Plan shall be EIGHT HUNDRED THOUSAND (800,000)
Shares. Shares issued pursuant to Options granted under this Plan may be issued
from Shares held in the Company's treasury or from authorized and unissued
Shares. If any Option granted under this Plan shall terminate, expire or be
canceled or surrendered as to any Shares, new Options may thereafter be granted
covering such Shares. Any Option granted hereunder shall be a Non-qualified
Stock Option.
4. Automatic Grant of Options. (a) Options shall automatically be
granted to Directors as provided in this Section 4. Each Option shall be
evidenced by an option agreement (an "Option Agreement") and shall contain such
terms as are not inconsistent with this Plan or any applicable law. Any person
who files with the Committee, in a form satisfactory to the Committee, a written
waiver of eligibility to receive any Option under this Plan shall not be
eligible to receive any Option under this Plan for the duration of such waiver.
(b) The Options automatically granted to Directors under this Section 4
shall be in addition to any other Options granted pursuant to this Plan, regular
director's fees and other benefits with respect to the Director's position with
the Company or its Subsidiaries. Neither the Plan nor any Option granted under
the Plan shall confer upon any person any right to continue to serve as a
Director.
(c) Options shall be automatically granted as follows:
(i) Each Director who is an Eligible Person shall
automatically receive an Option for THIRTY THOUSAND (30,000) Shares on
the date such Eligible Person is initially appointed or elected a
Director of the Company, and such Options shall vest as to TEN THOUSAND
(10,000) Shares on each of the first three anniversaries of the Date of
Grant;
2
3
(ii) Each Director who is an Eligible Person will receive, on
the first business date after the date of each annual meeting of
stockholders of the Company at which such Director is reelected to the
Board of Directors of the Company, an option to purchase THIRTY
THOUSAND (30,000) Shares, and such Option shall vest as to TEN THOUSAND
(10,000) Shares on each of the first three anniversaries of the Date of
Grant.
(d) Any Option that may be granted pursuant to subparagraph (c) of this
Section 4 prior to the approval of this Plan by the stockholders of the Company
may be exercised on or after the Date of Grant subject to the approval of this
Plan by the stockholders of the Company within twelve (12) months after the
effective date of this Plan. If any Optionee exercises an Option prior to such
stockholder approval, the Optionee must tender the exercise price at the time of
exercise and the Company shall hold the Shares to be issued pursuant to such
exercise until the stockholders approve this Plan. If this Plan is approved by
the stockholders, the Company shall issue and deliver the Shares as to which the
Option has been exercised. If this Plan is not approved by the stockholders, the
Company shall return the exercise price to the Optionee.
5. Discretionary Grant of Options. In addition to the Options
automatically granted under Section 4 of this Plan, the Committee may grant
Options at any time during the term of this Plan to any Eligible Person. Subject
only to the applicable limitations set forth in this Plan and applicable law,
the number of Shares to be covered by an Option shall be as determined by the
Committee. Each Option granted pursuant to this Section 5 shall be evidenced by
an Option Agreement and shall contain such terms as are not inconsistent with
this Plan or any applicable law.
6. Option Price. The Option price per Share of any Option granted
pursuant to this Plan shall be one hundred percent (100%) of the Fair Market
Value per Share on the Date of Grant.
7. Exercise of Options. Options may be exercised at any time after
the date on which the Options, or any portion thereof, are vested until the
Option expires pursuant to Section 8. An Option shall be deemed exercised when
(i) the Company has received written notice of such exercise in accordance with
the terms of the Option Agreement, (ii) full payment of the aggregate Option
price of the Shares as to which the Option is exercised has been made and (iii)
arrangements that are satisfactory to the Committee in its sole discretion have
been made for the Optionee's payment to the Company of the amount, if any, that
the Committee determines to be necessary for the Company to withhold in
accordance with applicable federal or state income tax withholding requirements.
Pursuant to procedures approved by the Committee, tax withholding requirements,
at the option of an Optionee, may be met by withholding Shares otherwise
deliverable to the Optionee upon the exercise of an Option. Unless further
limited by the Committee in any Option Agreement, the Option price of any Shares
purchased shall be paid solely in cash, by certified or cashier's check, by
money order, with Shares (but with Shares only if permitted by the Option
Agreement or otherwise permitted by the Committee in its sole discretion at the
time of exercise) or by a combination of the above; provided, however, that the
Committee in its sole discretion may accept a personal check in full or partial
payment of any Shares. If the exercise price is paid in whole or in part with
Shares, the value of the Shares surrendered shall be their Fair Market Value on
the date the Shares are received by the Company.
3
4
8. Termination of Option Period. The unexercised portion of an
Option shall automatically and without notice terminate and become null and void
at the time of the earliest to occur of the following:
(a) with respect to Options granted automatically pursuant to Section
4(c) and Section 5, thirty (30) days after the date that an Optionee ceases to
be a Director regardless of the reason therefor other than as a result of such
termination by death of the Optionee;
(b) with respect to Options granted automatically pursuant to Section
4(c), (y) one (1) year after the date than an Optionee ceases to be a Director
by reason of death of the Optionee or (z) six (6) months after the Optionee
shall die if that shall occur during the thirty-day period described in
Subsection 8(a); or
(c) the sixth (6th) anniversary of the Date of Grant of the Option.
9. Adjustment of Shares. (a) If at any time while this Plan is in
effect or unexercised Options are outstanding, there shall be any increase or
decrease in the number of issued and outstanding Shares through the declaration
of a stock dividend or through any recapitalization resulting in a stock
split-up, combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the maximum number of
Shares then subject to being optioned under this Plan, so that the same
proportion of the Company's issued and outstanding Shares shall
continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made in the number of Shares
and the exercise price per Share thereof then subject to any
outstanding Option, so that the same proportion of the Company's issued
and outstanding Shares shall remain subject to purchase at the same
aggregate exercise price.
In addition, the Committee shall make such adjustments in the Option
price and the number of shares covered by outstanding Options that are required
to prevent dilution or enlargement of the rights of the holders of such Options
that would otherwise result from any reorganization, recapitalization, stock
split, stock dividend, combination of shares, merger, consolidation, issuance of
rights, spin-off or any other change in capital structure of the Company.
(b) Except as otherwise expressly provided herein, the issuance by the
Company of shares of its capital stock of any class, or securities convertible
into shares of capital stock of any class, either in connection with a direct
sale or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Company convertible into such shares
or other securities, shall not affect, and no adjustment by reason thereof shall
be made with respect to, the number of or exercise price of Shares then subject
to outstanding Options granted under this Plan.
(c) Without limiting the generality of the foregoing, the existence of
outstanding Options granted under this Plan shall not affect in any manner the
right or power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other
4
5
changes in the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities,
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
10. Transferability of Options. Each Option Agreement shall provide
that such Option shall not be transferable by the Optionee other than by will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order and that, so long as an Optionee lives, only such Optionee or
his guardian or legal representative shall have the right to exercise the
related Option.
11. Issuance of Shares. No person shall be, or have any of the rights
or privileges of, a stockholder of the Company with respect to any of the Shares
subject to an Option unless and until certificates representing such Shares
shall have been issued and delivered to such person. As a condition of any
transfer of the certificate for Shares, the Committee may obtain such agreements
or undertakings, if any, as it may deem necessary or advisable to assure
compliance with any provision of this Plan, any Option Agreement or any law or
regulation, including, but not limited to, the following:
(i) A representation, warranty or agreement by the Optionee to
the Company, at the time any Option is exercised, that he is acquiring
the Shares to be issued to him or her for investment and not with a
view to, or for sale in connection with, the distribution of such
Shares; and
(ii) A representation, warranty or agreement to be bound by any
legends that are, in the opinion of the Committee, necessary or
appropriate to comply with the provisions of any securities law deemed
by the Committee to be applicable to the issuance of the Shares and are
endorsed upon the Share certificates.
Share certificates issued to an Optionee who is a party to any
stockholder agreement or a similar agreement shall bear the legends contained in
such agreements.
12. Administration of the Plan. (a) This Plan shall be administered
by a stock option committee (the "Committee") consisting of not fewer than two
(2) members of the Board; provided, however, that if no Committee is appointed,
the Board shall administer this Plan and in such case all references to the
Committee shall be deemed to be references to the Board. The Committee shall
have all of the powers of the Board with respect to this Plan. Any member of the
Committee may be removed at any time, with or without cause, by resolution of
the Board, and any vacancy occurring in the membership of the Committee may be
filled by appointment by the Board.
(b) The Committee, from time to time, may adopt rules and regulations
for carrying out the purposes of this Plan. The determinations and the
interpretation and construction of any provision of this Plan by the Committee
shall be final and conclusive.
5
6
(c) Any and all decisions or determinations of the Committee shall be
made either (i) by a majority vote of the members of the Committee at a meeting
or (ii) without a meeting by the written approval of a majority of the members
of the Committee.
(d) This Plan is intended and has been drafted to comply with Rule
16b-3, as amended, under the Securities Exchange Act of 1934, as amended. If any
provision of this Plan does not comply with Rule 16b-3, as amended, this Plan
shall be automatically amended to comply with Rule 16b-3, as amended.
13. Interpretation. (a) If any provision of this Plan is held invalid
for any reason, such holding shall not affect the remaining provisions hereof,
but instead this Plan shall be construed and enforced as if such provision had
never been included in this Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
EXCEPT TO THE EXTENT SUPERSEDED BY THE LAWS OF THE UNITED STATES OR THE PROPERTY
LAWS OF ANY STATE.
(c) Headings contained in this Plan are for convenience only and shall
in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter gender shall be
a reference to such other gender as is appropriate.
14. Section 83(b) Election. If as a result of exercising an Option an
Optionee receives Shares that are subject to a "substantial risk of forfeiture"
and are not "transferable" as those terms are defined for purposes of Section
83(a) of the Code, then such Optionee may elect under Section 83(b) of the Code
to include in his gross income, for his taxable year in which the Shares are
transferred to such Optionee, the excess of the Fair Market Value of such Shares
at the time of transfer (determined without regard to any restriction other than
one which by its terms will never lapse), over the amount paid for the Shares.
If the Optionee makes the Section 83(b) election described above, the Optionee
shall (i) make such election in a manner that is satisfactory to the Committee,
(ii) provide the Company with a copy of such election, (iii) agree to promptly
notify the Company if any Internal Revenue Service or state tax agent, on audit
or otherwise, questions the validity or correctness of such election or of the
amount of income reportable on account of such election, and (iv) agree to such
withholding as the Committee may reasonably require in its sole and absolute
discretion.
15. Effective Date and Termination Date. This Plan is adopted as of
July 10, 1996, but shall become effective upon effectiveness of the Company's
Form 10 Registration Statement filed under the Securities Exchange Act of 1934,
as amended. The effective date of any amendment to the Plan is the date on which
the Board adopted such amendment; provided, however, if this Plan is not
approved by the stockholders of the Company within twelve (12) months after the
effective date, then, in such event, this Plan and all Options granted pursuant
to this Plan shall be null and void. This Plan shall terminate on July 10, 2006,
and any Option outstanding on such date will remain outstanding until it has
either expired or has been exercised.
6