Exhibit 10.27


 


MxEnergy.com
Inc.

2003 STOCK OPTION PLAN


 


1.             Purpose.  The purpose of the MxEnergy.com Inc. 2003
Stock Option Plan (“Plan”) is to
recognize the contributions made to MxEnergy.com Inc. (“Company”)
and its Affiliates (defined herein) by directors, employees, advisors and
Consultants (defined herein) of the Company and its Affiliates, to provide such
persons with an additional incentive to devote themselves to the future success
of the Company and its Affiliates and to enhance the ability of the Company and
its Affiliates to attract, retain and motivate individuals upon whom the
sustained growth and financial success of the Company and its Affiliates depend
by providing such persons with the opportunity to acquire or increase a
proprietary interest in the Company through the grant of rights to acquire the
Company’s Common Stock, par value $0.01 per share (“Common
Stock”).


 


2.             Definitions.  Unless the context clearly indicates
otherwise, the following terms shall have the following meanings as used
herein:


 


(a)          “Affiliate” means a
corporation that is a parent or subsidiary corporation of the Company within
the meaning of Section 424(e) or (f) of the Code.


 


(b)          “Change of Control”
shall mean the occurrence of one of the following events (and a Change of
Control shall be deemed to have occurred upon the earliest to occur of the
following):  (i) the date upon which
the stockholders of the Company (or the Board of Directors, if stockholder
action is not required) approve a plan or other arrangement pursuant to which
the Company will be dissolved or liquidated; (ii) the date upon which the
stockholders of the Company (or the Board of Directors, if stockholder action
is not required) approve a definitive agreement to sell or otherwise dispose of
all or substantially all of the assets of the Company; (iii) the date upon
which the stockholders of the Company (or the Board of Directors, if
stockholder action is not required) and the stockholders of the other
constituent corporation (or its board of directors if stockholder action is not
required) approve a definitive agreement to merge or consolidate the Company
with or into such other corporation, other than, in either case, a merger or
consolidation of the Company in which holders of shares of the Company’s Common
Stock immediately prior to the merger or consolidation will own at least a
majority of the common stock of the surviving corporation (and, if one class of
common stock is not the only class of voting securities entitled to vote on the
election of directors of the surviving corporation, a majority of the voting
power of the surviving corporation’s voting securities) immediately after the
merger or consolidation, which common stock (and, if applicable, voting
securities) is to be held in the same proportion as such holders’ ownership of
Common Stock of the Company immediately before the merger or consolidation; (iv) the
date upon which any entity, person or group, within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Securities Exchange Act of 1934, as amended,
other than the Company or any of its subsidiaries or any employee benefit plan
(or related trust) sponsored or maintained by the Company or any of its
subsidiaries becomes the beneficial owner of, or obtains voting control over,
more than fifty percent (50%) of the outstanding shares of the Company’s Common
Stock; or (v) the first day after the


 


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effective date of this
Plan upon which directors are elected such that a majority of the Board of
Directors shall have been members of the Board of Directors for less than two (2) years,
unless the nomination for election of each new director who was not a director
at the beginning of such two (2) year period was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who were directors
at the beginning of such period.


 


(c)           “Code” means the
Internal Revenue Code of 1986, as amended.


 


(d)          “Committee” means
the Board of Directors, or a committee of the Board of Directors appointed in
accordance with Section 3 of the Plan, when acting in connection with the
administration of the Plan.


 


(e)           “Consultant” shall
mean a non-employee advisor or consultant retained by the Company whose
services are considered by the Committee to be of sufficient importance to the
Company to merit an award of Options hereunder.


 


(f)            “Disability” shall
have the meaning set forth in Section 22(e)(3) of the Code.


 


(g)          “Fair Market Value”
shall mean the per share value of the Common Stock determined as follows:  (i) if the Common Stock is traded in a
public market and listed on a national securities exchange or included in the
NASDAQ National Market System, then the Fair Market Value shall be the last
reported sale price thereof on the relevant date; (ii) if the Common Stock
is traded in a public market and not listed on a national securities exchange
or included in the NASDAQ National Market System, then the Fair Market Value
shall be the average of the last reported “bid” and “asked” prices thereof on the
relevant date as reported on NASDAQ or, if not so reported, as reported by the
National Quotation Bureau, Inc. or as reported in a customary financial
reporting service, as applicable and as the Committee determines; or (iii) at
any time at which the Common Stock is not traded in a public market, the Fair
Market Value shall be determined by the Board of Directors, acting in good
faith, which determination shall be final and binding for all purposes of the
Plan.


 


(h)          “ISO” means an
Option granted under the Plan that is intended to qualify as an “incentive
stock option” within the meaning of Section 422(b) of the Code.


 


(i)           “Non-employee Director”
means a member of the Board of Directors who is not an employee of the Company
or an Affiliate.


 


(j)            “Non-qualified Stock Option”
means an Option granted under the Plan that is not intended to qualify, or
otherwise does not qualify, as an “incentive stock option” within the meaning
of Section 422(b) of the Code.


 


(k)          “Option” means
either an ISO or a Non-qualified Stock Option granted under the Plan.


 


(l)           “Optionee” means a
person to whom an Option has been granted under the Plan, which Option has not
been exercised, expired or terminated.


 


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(m)          “Option Document”
means the document described in Section 8 of the Plan that sets forth the
terms and conditions of each Option grant.


 


(n)          “Option Price” means
the price at which Shares may be purchased upon exercise of an Option, as
calculated pursuant to Section 8(c) of the Plan.


 


(o)          “Rule 16b-3”
means Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended.


 


(p)          “Shares” means the
shares of Common Stock of the Company that are the subject of Options.


 


3.             Administration of the Plan.


 


(a)          Administration.  The Plan shall be administered by the Board
of Directors of the Company.  The Board
of Directors may designate a Committee composed of at least two Non-employee
Directors within the meaning of Rule 16b-3(3) to operate and
administer the Plan in its stead, except that to the extent that the Plan
pertains to Non-employee Directors, it shall be administered by the Board of
Directors.


 


(b)          Meetings; Action Without a Meeting.  The Committee shall hold meetings at such
times and places as it may determine. 
Acts approved at a meeting by a majority of the members of the Committee
and acts approved in writing by the unanimous consent of the members of the
Committee shall be the valid acts of the Committee.


 


(c)           Authority of the Committee.  Except with respect to Options granted to
Non-employee Directors pursuant to Section 9 hereof, the Committee shall
from time to time at its discretion direct the Company to grant Options
pursuant to the terms of the Plan.  The
Committee shall have plenary authority to: 
(i) determine the Optionees to whom, the times at which, and the
price at which Options shall be granted; (ii) determine the type of Option
to be granted and the number of Shares subject thereto; and (iii) approve
the form and terms and conditions of the Option Documents; all subject,
however, to the express provisions of the Plan. 
The interpretation and construction by the Committee of any provisions
of the Plan or of any Option granted under it shall be final, binding and conclusive.


 


(d)          Exculpation.  No member of the Board of Directors shall be
personally liable for monetary damages for any action taken or any failure to
take any action in connection with the administration of the Plan or the
granting of Options under the Plan, provided that this Section 3(d) shall
not apply to:  (i) any breach of
such member’s duty of loyalty to the Company or its stockholders; (ii) acts
or omissions not in good faith or involving intentional misconduct or a knowing
violation of law; (iii) acts or omissions that would result in liability
under Section 174 of the Delaware General Corporation Law as amended; and (iv) any
transaction from which the member derived an improper personal benefit.


 


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(e)           Indemnification.  Service on the Committee shall constitute
service as a member of the Board of Directors of the Company.  Each member of the Committee shall be
entitled without further act on such member’s part to indemnity from the
Company to the fullest extent provided by applicable law and the Company’s
Certificate of Incorporation and/or By-laws in connection with or arising out
of any action, suit or proceeding with respect to the administration of the
Plan or the granting of Options thereunder in which such member may be involved
by reason of such member’s being or having been a member of the Committee,
whether or not such member continues to be a member of the Committee at the
time of the action, suit or proceeding.


 


4.             Shares Subject to the Plan.


 


(a)          Number of Shares Reserved.  The aggregate maximum number of Shares for
which Options may be granted pursuant to the Plan is Four Hundred Thousand
(400,000) Shares.  The Shares shall be
issued from authorized and unissued Common Stock or Common Stock held in or
hereafter acquired for the treasury of the Company.  If an Option terminates or expires without having
been fully exercised for any reason, the Shares for which the Option was not
exercised may again be the subject of one or more Options granted pursuant to
the Plan.


 


(b)          Adjustments Upon Changes in
Capitalization.  The
aggregate number of Shares and class of shares as to which Options may be
granted hereunder, the number and class or classes of shares covered by each
outstanding Option and the Option Price thereof shall be appropriately adjusted
in the event of a stock dividend, stock split, recapitalization or other change
in the number or class of issued and outstanding equity securities of the
Company resulting from a subdivision or consolidation of the Common Stock
and/or, if appropriate, other outstanding equity securities or a
recapitalization or other capital adjustment (not including the issuance of
Common Stock on the conversion or exchange of other securities of the Company
which are convertible into or exchangeable for Common Stock) affecting the
Common Stock that is effected without receipt of consideration by the
Company.  The Committee shall have
authority to determine the adjustments to be made under this Section and
any such determination by the Committee shall be final, binding and conclusive;
provided, however, that no adjustment shall be made that will cause an ISO to
lose its status as such without the consent of the Optionee, except for
adjustments made pursuant to Section 10 hereof.


 


5.             Term of the Plan.  The Plan is effective as of November 30,
2003, the date as of which it was adopted by the Board of Directors of the
Company, subject to approval by the stockholders on or before November 30,
2003.  In the event that stockholder
approval of the Plan is not obtained on or before such date, the Plan shall be
of no effect and any options granted hereunder shall terminate.  No Option granted hereunder shall be
exercisable prior to the date on which the Plan is duly approved by the stockholders
of the Company.  No Option may be granted
under the Plan after November 30, 2013.


 


6.             Eligibility.  All employees, Consultants and members of the
Board of Directors of the Company and its Affiliates shall be eligible to
receive Options hereunder, however, Non-employee


 


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Directors may receive
Options only pursuant to Section 9 hereof. 
The Committee, in its sole discretion, shall determine all questions of
eligibility to receive Options hereunder.


 


7.             Grants.


 


(a)          Form of Grants.  Grants under the Plan may be in the form of a
Non-qualified Stock Option, an ISO or a combination thereof, at the discretion
of the Committee.  Unless specifically
designated as an ISO at the time of grant, each Option granted under the Plan
shall be a Non-qualified Stock Option. 
If an Option designated as an ISO is determined for any reason not to
qualify as an Incentive Stock Option within the meaning of Section 422 of
the Code, such Option shall be treated as a Non-qualified Stock Option for all
purposes under the Plan.


 


(b)          Grants to Non-employee Directors.  Grants of Options to Non-employee Directors
shall be made in accordance with Section 9 hereof and the Non-employee
Directors to whom Options will be granted, the timing of such grants, the price
at which Shares subject to such Options may be purchased and the number of
Shares covered by such Options shall be determined as specifically set forth in
such Section.


 


(c)           Other Grants.  Except with respect to Options granted to
Non-employee Directors, the Committee shall from time to time at its discretion
direct the Company to grant Options pursuant to the terms of the Plan.  In determining the Optionees to whom, the
times at which, and the price at which Options shall be granted, the types of
Option to be granted, the number of Shares to which Options shall apply and the
terms and conditions of the Option Documents, the Committee may take into
account the nature of the Optionee’s services and responsibilities, the
Optionee’s present and potential contribution to the Company’s success and such
other factors as it may deem relevant.


 


8.             Option Documents and Terms.


 


(a)          Form of Option Documents.  Options granted pursuant to the Plan shall be
evidenced by Option Documents in such form as the Committee shall from time to
time approve, which Option Documents shall comply with, and be subject to, the
terms and conditions of this Section 8 and such other terms and conditions
as the Committee shall from time to time require consistent with the terms of
the Plan, except that the provisions of this Section 8 shall not be
applicable to Options granted to Non-employee Directors, except
as otherwise provided in Section 9.


 


(b)          Number of Option Shares.  Each Option Document shall state the number
of Shares to which it pertains.  An
Optionee may receive more than one Option and may receive Options intended to
be ISO’s and Options intended not to be ISO’s, but only on the terms and
subject to the conditions and restrictions of the Plan.


 


(c)           Option Price.  Each Option Document shall state the Option
Price.  For a Non-qualified Stock Option,
the Option Price may be less than, equal to or greater than the Fair


 


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Market Value of the
Shares on the date the Option is granted. 
For an ISO, the Option Price shall be at least 100% of the Fair Market
Value of the Shares on the date the Option is granted as determined by the
Committee in accordance with this Section 8(b); provided, however, that if
an ISO is granted to an Optionee who then owns, directly or by attribution
under Section 424(d) of the Code, shares possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company or an Affiliate, then the Option Price shall be at least 110% of the
Fair Market Value of the Shares on the date the Option is granted.


 


(d)          Exercise.  No Option shall be deemed to have been
exercised prior to receipt by the Company of written notice of such exercise
and payment in full of the Option Price for the Shares to be purchased.  Each such notice shall specify the number of
Shares to be purchased and, unless the Shares are covered by a then current
registration statement or a Notification under Regulation A under the
Securities Act of 1933 (“Act”), shall
contain the Optionee’s acknowledgment in form and substance satisfactory to the
Company that:  (i) such Shares are
being purchased for investment and not for distribution or resale (other than a
distribution or resale which, in the opinion of counsel satisfactory to the
Company, may be made without violating the registration provisions of the Act);
(ii) the Optionee has been advised and understands that the Shares have
not been registered under the Act and are “restricted securities” within the
meaning of Rule 144 under the Act and are subject to restrictions on
transfer and the Company is under no obligation to register the Shares under
the Act or to take any action which would make available to the Optionee any
exemption from such registration; (iii) such Shares may not be transferred
without compliance with all applicable federal and state securities laws; and (iv) an
appropriate legend referring to the foregoing restrictions on transfer and any
other restrictions imposed under the Option Documents may be endorsed on the
certificates.  Notwithstanding the
foregoing, if the Company determines that issuance of Shares should be delayed
pending:  (i) registration under
federal or state securities laws; (ii) the receipt of an opinion of
counsel satisfactory to the Company that an appropriate exemption from such
registration is available; (iii) the listing or inclusion of the Shares on
any securities exchange or an automated quotation system; or (iv) the
consent or approval of any governmental regulatory body whose consent or approval
is necessary in connection with the issuance of such Shares; the Company may
defer exercise of any Option granted hereunder until any of the events
described in this sentence has occurred.


 


(e)           Medium of Payment.  An Optionee shall pay for Shares:  (i) in cash; (ii) by certified, bank
or cashier’s check payable in clearing house funds to the order of the Company;
(iii) by such other mode of payment as the Committee may approve,
including payment through a broker in accordance with procedures permitted by
Regulation T of the Federal Reserve Board; or (iv) if so provided in the
Option Document to which the Shares pertain, in whole or in part as provided in
such Option Document in shares of the Company’s Common Stock held by the
Optionee.  If payment is made in whole or
in part in shares of the Company’s Common Stock, the Optionee shall deliver to
the Company certificates registered in the name of such Optionee representing
the shares owned by such Optionee, free of all liens, claims and encumbrances
of every kind and having an aggregate Fair Market Value on the date of delivery
that is at least as great as the Option Price of the Shares (or relevant
portion thereof) with respect to which such Option is to be exercised by the


 


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payment in shares of
Common Stock, endorsed in blank or accompanied by stock powers duly endorsed in
blank by the Optionee.  In the event that
certificates for shares of the Company’s Common Stock delivered to the Company
represent a number of shares in excess of the number of shares required to make
payment for the Option Price of the Shares (or relevant portion thereof) with
respect to which such Option is to be exercised by payment in shares of Common
Stock, the stock certificate issued to the Optionee shall represent the Shares
in respect of which payment is made, and an additional certificate shall be
issued to the Optionee for such excess number of shares.  Notwithstanding the foregoing, the Committee
may impose from time to time such limitations and prohibitions on the use of
shares of the Common Stock as payment for Shares to be acquired through the
exercise of an Option as it deems appropriate.


 


(f)            Termination of Options.


 


(i)           No Option shall be
exercisable after the first to occur of the following:


 


(A)          Expiration of the
Option term specified in the Option Document, which shall not occur after ten (10) years
from the date of grant, or five (5) years from the date of grant of an ISO
if the Optionee on the date of grant owns, directly or by attribution under Section 424(d) of
the Code, shares possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company or of an Affiliate.


 


(B)          Expiration of three (3) months
from the date the Optionee’s employment or service with the Company or its
Affiliates (other than service as a Non-employee Director) terminates for any
reason other than Disability or death or as otherwise specified in Section 8(f)(i)(D) or
8(f)(i)(E) hereof, or as otherwise specifically provided by the Committee
acting pursuant to Section 8(f)(ii) below.


 


(C)          Expiration of one (1) year
from the date such employment or service with the Company or its Affiliates,
including service as a Non-employee Director, terminates due to the Optionee’s
Disability or death.


 


(D)          A finding by the
Committee, after full consideration of the facts presented on behalf of both
the Company and the Optionee, that the Optionee has breached the Optionee’s
employment or service contract with the Company or an Affiliate or has been
engaged in disloyalty to the Company or an Affiliate including, without
limitation, fraud, embezzlement, theft, commission of a felony or proven
dishonesty in the course of the Optionee’s employment or service, or has
disclosed trade secrets or confidential information of the Company or an
Affiliate.  In such event, in addition to
immediate termination of the Option, the Optionee shall automatically forfeit
all Shares for which the Company has not yet delivered the share certificates
upon refund by the Company of the Option Price. 
Notwithstanding anything herein to the contrary, the Company may
withhold delivery of share certificates pending the resolution of any inquiry
that could lead to a finding resulting in a forfeiture.


 


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(E)          The date, if any,
set by the Board of Directors as an accelerated expiration date in the event of
the liquidation or dissolution of the Company.


 


(ii)          Notwithstanding the
foregoing, the Committee may extend the period during which all or any portion
of an Option may be exercised to a date no later than the Option term specified
in the Option Document in accordance with Section 8(f)(i)(A), provided
that any change pursuant to this Section 8(f)(ii) that would cause an
ISO to become a Non-qualified Stock Option may be made only with the consent of
the Optionee.


 


(g)          Transfers.  No Option granted under the Plan may be
transferred except by will or by the laws of descent and distribution.  During the lifetime of the person to whom an
Option is granted, such Option may be exercised only by such person.  Notwithstanding the foregoing, a Non-qualified
Stock Option may be transferred pursuant to the terms of a “qualified domestic
relations order,” within the meaning of Sections 401(a)(13) and 414(p) of the
Code or within the meaning of Title I of the Employee Retirement Income
Security Act of 1974, as amended.


 


(h)          Limitation on ISO Grants.  In no event shall the aggregate fair market
value of the shares of Common Stock (determined at the time the ISO is granted)
with respect to which incentive stock options under all incentive stock option
plans of the Company or its Affiliates are exercisable for the first time by
the Optionee during any calendar year exceed $100,000.


 


(i)           Other Provisions.  Subject to the provisions of the Plan, the
Option Documents shall contain such other provisions including, without
limitation, provisions authorizing the Committee to accelerate the
exercisability of all or any portion of an Option granted pursuant to the Plan,
additional restrictions upon the exercise of the Option or additional
limitations upon the term of the Option, as the Committee shall deem advisable.


 


(j)            Amendment.  Subject to the provisions of the Plan, the
Committee shall have the right to amend Option Documents issued to an Optionee,
subject to the Optionee’s consent if such amendment is not favorable to the
Optionee, except that the consent of the Optionee shall not be required for any
amendment made pursuant to Section 8(f)(i)(E) or Section 10 of
the Plan, as applicable.


 


9.             Grants to Non-Employee
Directors.


 


(a)          Generally.  Options granted pursuant to
the Plan to Non-Employee Directors shall be granted in accordance with the
terms and conditions set forth in this Section 9.  Options granted pursuant to this Section 9
shall be evidenced by Option Documents in such form as the Committee shall from
time to time approve, which Option Documents shall comply with and be subject
to the terms and conditions of this Section 9 and such other terms and
conditions as the Committee shall from time to time require consistent with the
terms of the Plan.


 


(b)          Grants; Exercisability; Option Price.  Grants to Non-employee Directors shall be


 


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made at the discretion of
the Committee.  Except as otherwise
provided herein or in the applicable Option Document, with respect to the
termination of such Options or the acceleration of the exercisability thereof,
each such Option shall be a Non-qualified Stock Option, exercisable at any time
during its term following the date of grant. 
The Option Price shall be equal to the Fair Market Value of the Shares
on the date the Option is granted.


 


(c)           Termination of Option Granted
Pursuant to Section 9.  All Options granted pursuant to this Section 9
shall be exercisable until the first to occur of the following:


 


(i)           Expiration of ten (10) years
from the date of grant;


 


(ii)          Expiration of one (1) year from
the date the Optionee’s service with the Company as a director terminates due
to the Optionee’s Disability or death; or


 


(iii)         Removal of the Optionee from the
Optionee’s position as a director of the Company pursuant to the procedure for
removal set forth in the Company’s Certificate of Incorporation and/or Bylaws
or a finding by the Board of Directors, after full consideration of the facts
presented on behalf of both the Company and the Optionee, that the Optionee has
breached any service contract with, or duty of loyalty or care owed to, the
Company or an Affiliate, or has been engaged in disloyalty to the Company or an
Affiliate, including, without limitation, fraud, embezzlement, theft,
commission of a felony or proven dishonesty in the course of his employment or
service, or has disclosed trade secrets or confidential information of the
Company or an Affiliate; in such event, in addition to immediate termination of
the Option, the Optionee shall automatically forfeit all Shares for which the
Company has not yet delivered the share certificates upon refund by the Company
of the Option Price and, notwithstanding anything herein to the contrary, the
Company may withhold delivery of share certificates pending the resolution of
any inquiry that could lead to a finding resulting in a forfeiture.


 


10.           Change of Control.  In the event of a Change of Control, the
Committee may take whatever action it deems necessary or desirable with respect
to the Options outstanding (other than Options granted pursuant to Section 9)
including, without limitation, accelerating the expiration or termination date
in the respective Option Documents to a date no earlier than thirty (30) days
after notice of such acceleration is given to the Optionees.  Any amendment to this Section 10 that
diminishes the rights of Optionees shall not be effective with respect to
Options outstanding at the time of adoption of such amendment, whether or not
such outstanding Options are then exercisable.


 


11.           Withholding of Taxes.  Whenever the Company proposes or is required
to deliver or transfer Shares in connection with the exercise of an Option, the
Company shall have the right to require the recipient to remit or otherwise
make available to the Company funds sufficient to satisfy any applicable
federal, state and/or local withholding tax requirements prior to the delivery
or transfer of any certificates for Shares or to take whatever other action it
may deem necessary to protect its interests with respect to tax
liabilities.  The Company’s obligation to
make any delivery or transfer of Shares shall be conditioned upon the Optionee’s
compliance, to the Company’s satisfaction, with any requirement imposed
pursuant to this Section 11.


 


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12.           Miscellaneous.


 


(a)          No Commitment to Retain.  The grant of an Option pursuant to the Plan
shall not be construed to imply or to constitute evidence of any agreement,
express or implied, on the part of the Company or any Affiliate to retain the
Optionee in the employ of the Company or any Affiliate and/or as a member of
the Board of Directors of the Company or any Affiliate or in any other
capacity.


 


(b)          Interpretation.  The Plan is intended to enable transactions
under the Plan with respect to directors and Officers (within the meaning of Section 16(a) under
the Securities Exchange Act of 1934, as amended) to satisfy the conditions of Rule 16b-3
or its successors.  To the extent that
any provision of the Plan would cause a conflict with such conditions or would
cause administration of the Plan as provided for in Section 3 hereof to
fail to satisfy the conditions of Rule 16b-3, such provision shall be
deemed null and void to the extent permitted by applicable law.  This Section shall not be applicable if
no class of the Company’s equity securities is then registered pursuant to Section 12
of the Securities Exchange Act of 1934, as amended.


 


(c)           Amendment of the Plan.  The Board of Directors of the Company may
amend the Plan from time to time in such manner as it may deem advisable,
however, the Board of Directors may not change the class of individuals
eligible to receive an ISO or increase the maximum number of shares as to which
Options may be granted without obtaining approval, within twelve (12) months
before or after such action, by vote of a majority of the votes cast at a duly
called meeting of the stockholders at which a quorum representing a majority of
all outstanding voting stock of the Company is present and voting on the
matter, in person or by proxy.  In
addition, the provisions of Section 9 that determine:  (i) which directors shall be granted
Options pursuant to Section 9; (ii) the number of Shares subject to
Options granted pursuant to Section 9; (iii) the exercise price
applicable to Options granted pursuant to Section 9; and (iv) the
timing of grants of Options pursuant to Section 9 shall not be amended
more than once every six (6) months, other than to comport with changes in
the Code or the Employee Retirement Security Act of 1974, as amended.  Notwithstanding the foregoing, no amendment
to the Plan shall adversely affect any outstanding Option without the consent
of the Optionee.


 


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AMENDMENT
NO. 1


TO THE


2003
STOCK OPTION PLAN


OF


MxENERGY
INC.


 


WHEREAS, the Board of Directors of MxEnergy Inc. (the
Company”) adopted resolutions to recommend, and did recommend to the
stockholders of the Company, that the Company’s 2003 Option Plan (the “Plan”)
be amended to modify Section 4(b) of the Plan; and


 


WHEREAS, a majority of the votes cast of the
stockholders of the Company voted affirmatively to amend Section 4(b) of the
Plan.


 


NOW THEREFORE, BE IT RESOLVED, that
Section 4(b) of the Plan is hereby amended and restated in its entirety as
follows:


 


“(b)  Adjustments Upon Changes in Capitalization. The Committee shall equitably adjust the
number of Shares covered by each outstanding Option, and the number of Shares
that have been authorized for issuance under the Plan but as to which no
Options have yet been granted or that have been returned to the Plan upon
cancellation, forfeiture, or expiration of an Option, as well as the price per
Share covered by each such outstanding Option, to reflect any increase or
decrease in the number of issued Shares resulting from a stock-split, reverse
stock-split, stock dividend, combination, recapitalization or reclassification
(including by merger) of the Shares, or any other increase or decrease in the
number of issued Shares effected without receipt of consideration by the
Company. In the event of any such transaction or event, the Committee may
provide in substitution for any or all outstanding Options under the Plan such
alternative consideration (including securities of any surviving entity) as it
may in good faith determine to be equitable under the circumstances and may
require in connection therewith the surrender of all Options so replaced. In
any case, such substitution of securities shall not require the consent of any
person who is granted Options pursuant to the Plan. Except as expressly
provided herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be required to be made with respect to, the
number or price of Shares subject to any Option.”


 


 


Except as provided herein, the Plan shall remain in
full, force and effect without any additional modification.