EX-4.9 3 dex49.htm FORM OF EMPLOYEE STOCK OPTION AGREEMENT «Option_No_» Autobytel Inc. A Delaware Corporation
Exhibit 4.9
«Option_No_»
Autobytel Inc.
A Delaware Corporation
2004 Restricted Stock and Option Plan
EMPLOYEE STOCK OPTION AGREEMENT
Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Option Agreement.
I
NOTICE OF STOCK OPTION GRANT
«First» «Last»
«Xxxxxx0»
«Xxxxxx0»
«City», «ST» «ZIP»
You have been granted an option to purchase Common Stock of the Company, subject to the terms and conditions of the Plan and this Option Agreement, as follows:
Date of Grant: | «DateGrant» | |
Vesting Commencement Date: | «VestDate» | |
Exercise Price per Share: | «ExePrice_» | |
Total Number of Shares Granted: | «TotalShGrant_» | |
Total Exercise Price: | «TtlExPrice_» | |
Type of Option: | Incentive Stock Option | |
Term/Expiration Date: | The tenth anniversary of the Date of Grant |
You may exercise this Option, in whole or in part, according to the following vesting schedule:
Subject to Section II, Paragraphs D., E., F. and G. hereof, thirty-three and one-third percent (33 1/3%) shall vest and become exercisable twelve (12) calendar months after the applicable vesting commencement date, and one thirty-sixth (1/36) shall vest and become exercisable at the end of each successive calendar month thereafter for the following twenty-four (24) months.
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You may exercise this Option for three (3) months following your termination of employment with the Company, or for such longer period upon your death or Total and Permanent Disability as provided in the Plan. In no case may you exercise this Option after the Term/Expiration Date as provided above.
II
X. Xxxxx of Option. Autobytel Inc., a Delaware corporation (the “Company”), hereby grants to the Optionee named in the Notice of 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 Grant, at the exercise price per share set forth in the Notice of Grant (the “Exercise Price”) subject to the terms, definitions and provisions of the 2004 Restricted Stock and 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 Grant as an Incentive Stock Option (“ISO”), this Option is intended to qualify as an Incentive Stock Option as defined in Section 422 of the Code. Nevertheless, to the extent that it exceeds the $100,000 rule of Code Section 422(d), or to the extent the Option does not meet the ISO rules for some other reason, this Option shall be treated as a Nonstatutory Stock Option (“NSO”).
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No Shares will be issued pursuant to the exercise of an Option unless such issuance and such exercise shall comply with all relevant provisions of law and the requirements of any stock exchange upon which the Shares may then be listed. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to the Optionee on the date on which the Option is exercised with respect to such Shares.
(1) | cash; |
(2) | certified, bank cashier’s, or teller’s check; |
(3) | surrender of other shares of Common Stock of the Company which (A) in the case of Shares acquired pursuant to the exercise of a Company option, have been owned by the Optionee for more than six (6) months on the date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the Exercise Price of the Shares as to which the Option is being exercised; or |
(4) | delivery of a properly executed exercise notice together with such other documentation as the Administrator and the broker, if applicable, shall require to effect an exercise of the Option and delivery to the Company of the sale or loan proceeds required to pay the Exercise Price. |
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Option at the date of termination, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.
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.
(1) | Exercise of ISO. If this Option qualifies as an ISO, there will be no regular federal income tax liability or state 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 the Optionee to the alternative minimum tax in the year of exercise. |
(3) |
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K. 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 the Optionee’s interest except by means of a writing signed by the Company and Optionee. THIS AGREEMENT IS GOVERNED BY DELAWARE LAW EXCEPT FOR THAT BODY OF LAW PERTAINING TO CONFLICT OF LAWS.
Autobytel Inc. | ||||||||
a Delaware corporation | ||||||||
Dated as of: «DateGrant» | By: | |||||||
«Signer» | ||||||||
«Title_» |
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OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE OPTION HEREOF IS EARNED ONLY BY CONTINUING 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 2004 RESTRICTED STOCK AND OPTION PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE OPTIONEE’S EMPLOYMENT AT ANY TIME, WITH OR WITHOUT CAUSE.
Optionee acknowledges receipt of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Option and fully understands all provisions of the Option. Optionee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this Option. Optionee further agrees to notify the Company upon any change in the residence address indicated below.
OPTIONEE | ||||||||
Dated as of: «DateGrant» | ||||||||
«First» «Last» | ||||||||
«Xxxxxx0» | ||||||||
«Xxxxxx0» | ||||||||
«City», «ST» «ZIP» |
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«Option_No_»
EXHIBIT A
2004 RESTRICTED STOCK AND OPTION PLAN
EXERCISE NOTICE
Autobytel Inc.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
Attention: Secretary
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7. | GOVERNING LAW; SEVERABILITY. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE 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. |
9. | 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. |
10. | Delivery of Payment. Optionee herewith delivers to the Company the full Exercise Price for the Shares. |
Submitted by: | Accepted by: | |||||||
OPTIONEE: | Autobytel Inc. | |||||||
By: | By: | |||||||
«First» «Last» | ||||||||
Address: | Title: | |||||||
Address: | ||||||||
00000 XxxXxxxxx Xxxxxxxxx | ||||||||
Xxxxxx, XX 00000-0000 |
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