AUTOWEB, INC.
Exhibit 10.11
This
Restricted Stock Award Agreement (“Agreement”) is entered into
effective as of the Award Date set forth on the signature page to
this Agreement (“Award
Date”) by and between AutoWeb, Inc., a Delaware
corporation (“Company”), and the person set
forth as Participant on the signature page hereto
(“Participant”).
This
Agreement and the shares of restricted stock granted hereby are
subject to the provisions of the AutoWeb, Inc. 2018 Equity
Incentive Plan (“Plan”). In the event of a conflict
between the provisions of the Plan and this Agreement, the Plan
shall control. Capitalized terms used but not defined in this
Agreement shall have the meanings assigned to such terms in the
Plan.
1. Award of Restricted
Stock. Company hereby awards to Participant the number of
shares of common stock of Company, par value $0.001 per share, set
forth on the signature page to this Agreement (“Restricted Shares”), subject to
the Forfeiture Restrictions set forth herein.
2. Forfeiture
Restrictions Lapse Schedule. All Restricted Shares awarded
pursuant to this Agreement are subject to forfeiture back to
Company as may be provided in Section 3 (“Forfeiture Restrictions”) subject
to the Forfeiture Restrictions lapsing in accordance with the
vesting schedule set forth on the signature page to this agreement
(“Vesting
Schedule”).
3. Effect of Certain
Events on Forfeiture Restrictions.
(a) Termination
of Employment.
(i) Termination
of Employment By Company Without Cause or By Participant With Good
Reason. In the event Participant’s employment with
Company is terminated by Company without Cause or by Participant
for Good Reason, the Forfeiture Restrictions on the Restricted
Shares that have not lapsed prior to such termination of employment
shall lapse. For purposes of this Agreement, the terms
“Cause” and
“Good
Reason” shall have the meanings ascribed
to them in the Severance Benefits Agreement by and between Company
and Participant and referenced on the signature page to this
Agreement, as such agreement may be amended from time to time
(“Severance Benefits
Agreement”).
(ii) Termination
of Employment By Company For Cause or By Participant Without Good
Reason. Upon the termination of Participant’s
employment by Company for Cause or by Participant without Good
Reason, any Restricted Shares that remain subject to the Forfeiture
Restrictions at the time of termination of employment shall be
immediately forfeited and cancelled.
(iii) Termination
of Employment By Reason of Participant’s Death. Upon
the termination of Participant’s employment by Company by
reason of Participant’s death, the Forfeiture Restrictions on
the Restricted Shares that have not lapsed prior to such
termination of employment shall lapse.
-1-
(iv
)
Termination of Employment
By Company By Reason of Participant’s Disability. Upon
the termination of Participant’s employment by Company by
reason of Participant’s Disability, the Forfeiture
Restrictions on the Restricted Shares that have not lapsed prior to
such termination of employment shall lapse. For purposes of this
Agreement, “Disability” shall mean Participant
becoming “permanently and totally disabled” within the
meaning of Section 22(e)(3) of the Code or as otherwise determined
by the Committee in its discretion. The Committee may require such
proof of Disability as the Committee in its sole and absolute
discretion deems appropriate, and the Committee’s
determination as to whether Participant has incurred a Disability
shall be final and binding on all parties concerned.
(b) Change
in Control. In the event of a Change in Control, the effect
of the Change in Control on the Restricted Shares shall be
determined by the applicable provisions of the Plan (including,
without limitation, Article 10 of the Plan), provided that (i) to
the extent the Restricted Shares are assumed or substituted by the
successor company in connection with the Change in Control (or the
Restricted Shares are continued by Company if it is the ultimate
parent entity after the Change in Control), the Forfeiture
Restrictions shall lapse in accordance with clause (i) of Section
10.2(a) of the Plan only if Participant’s employment is
terminated within twenty-four (24) months following the date of the
Change in Control by Company or a Subsidiary (or the successor
company or a subsidiary or parent thereof) without Cause or by
Participant for Good Reason; and (ii) the Restricted Shares shall
not be deemed assumed or substituted by a successor company (or
continued by Company if it is the ultimate parent entity after the
Change in Control) for purposes of Section 10.2(a) of the Plan if
the Restricted Shares are not assumed, substituted or continued
with equity securities of the successor company or Company, as
applicable, that are publicly-traded and listed on an exchange in
the United States and that have voting, dividend and other rights,
preferences and privileges substantially equivalent to the
Restricted Shares. If the Restricted Shares are not deemed assumed,
substituted or continued for purposes of Section 10.2(a) of the
Plan, the Restricted Shares shall be deemed not assumed,
substituted or continued and shall be governed by Section 10.2(b)
of the Plan.
(c) Forfeiture
upon Engaging in Detrimental Activities. If, at any time
while any Restricted Shares remain subject to the Forfeiture
Restrictions or within the twelve (12) months after (i) the
Forfeiture Restrictions lapse as to any Restricted Shares; or (ii)
the effective date of any termination of Participant’s
employment by Company or by Participant for any reason, Participant
engages in, or is determined by the Committee in its sole
discretion to have engaged in, any (i) material breach of any
non-competition, non-solicitation, non-disclosure or settlement or
release covenant or agreement with Company or any Subsidiary; (ii)
activities during the course of Participant’s employment with
Company or any Subsidiary constituting fraud, embezzlement, theft
or dishonesty; or (iii) activity that is otherwise in conflict
with, or adverse or detrimental to the interests of Company or any
Subsidiary, then (x) Restricted Shares still subject to Forfeiture
Restrictions shall be forfeited effective as of the date on which
Participant engaged in or engages in that activity or conduct,
unless terminated sooner pursuant to the provisions of this
Agreement; (y) Restricted Shares for which the Forfeiture
Restrictions have lapsed but that are still in the possession of or
control of Participant shall be forfeited and returned to Company
effective as of the date on which Participant engaged in or engages
in that activity or conduct, unless terminated sooner pursuant to
the provisions of this Agreement; and (z) the amount of any
proceeds realized by Participant from any sale or other transfer of
Restricted Shares as to which the Forfeiture Restrictions had
lapsed shall be forfeited by Participant and shall be paid by
Participant to Company, and recoverable by Company, within sixty
(60) days following such termination date of the Options. For
purposes of the foregoing, the following will be deemed to be
activities in conflict with or adverse or detrimental to the
interests of Company or any Subsidiary: (i) Participant’s
conviction of, or pleading guilty or nolo contendere to any
misdemeanor involving moral turpitude or any felony, the underlying
events of which related to Participant’s employment with
Company; (ii) knowingly engaged or aided in any act or transaction
by Company or a Subsidiary that results in the imposition of
criminal, civil or administrative penalties against Company or any
Subsidiary; or (iii) misconduct during the course of
Participant’s employment by Company or any Subsidiary that
results in an accounting restatement by Company due to material
noncompliance with any financial reporting requirement under
applicable securities laws, whether such restatement occurs during
or after Participant’s employment by Company or any
Subsidiary.
-2-
(d) Reversion
of Forfeited Shares to Plan. Any Restricted Shares that are
forfeited shall be cancelled and revert to the Plan and shall again
be available for Awards under the Plan.
(e)
Reservation of Committee
Discretion to Accelerate Lapse of Forfeiture
Restrictions. The Committee reserves the right, in its
sole and absolute discretion, to accelerate the lapsing of the
Forfeiture Restrictions under circumstances not otherwise covered
by the foregoing provisions of this Section 3. The Committee
is under no obligation to exercise any such discretion and may or
may not exercise such discretion on a case-by-case
basis.
4. Restrictive Legend. Until
Forfeiture Restrictions lapse, all book entry accounts (or if
applicable, certificates) representing the Restricted Shares shall
bear the following legend in addition to all other legends
applicable to shares of Company’s common stock:
The
shares represented by this Advice [or Certificate, if applicable]
are subject to forfeiture to and recoupment by AutoWeb, Inc. and
may not be sold or otherwise transferred except pursuant to the
provisions of the 2018 Equity Incentive Plan Restricted Stock Award
Agreement by and between AutoWeb, Inc. and [Participant] dated as
of [Award Date].
As
Forfeiture Restrictions lapse and Participant has made arrangements
satisfactory to Company to satisfy applicable tax-withholding
obligations, Company shall cause the foregoing restrictive legend
to be removed with respect to Restricted Shares that are no longer
subject to the Forfeiture Restrictions. Notwithstanding the
foregoing, Participant agrees that Company may impose, and
Participant agrees to be bound by, Company policies and procedures
with respect to the ownership, timing and manner of resales of
shares of Company’s securities, including without limitation,
(i) restrictions on xxxxxxx xxxxxxx; (ii) restrictions designed to
delay and/or coordinate the timing and manner of sales by officers,
directors and affiliates of Company following a public offering of
Company’s securities; (iii) stock ownership or holding
requirements applicable to officers and/or directors of Company;
and (iv) the required use of a specified brokerage firm for such
resales.
-3-
5. Section 83(b) Election
Notice. If
Participant elects
under Section 83(b) of the Code to be taxed immediately on the
Restricted Shares rather than as the Forfeiture Restrictions lapse,
Participant must notify Company of the election within ten (10)
days of filing that election with the Internal Revenue
Service.
6. Miscellaneous.
(a) Nontransferability
of Restricted Shares. The Restricted Shares shall be
nontransferable or assignable except to the extent expressly
provided in the Plan. This Agreement
is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(b) Severability.
If any provision of this Agreement shall be held unlawful or
otherwise invalid or unenforceable in whole or in part by a court
of competent jurisdiction, such provision shall (i) be deemed
limited to the extent that such court of competent jurisdiction
deems it lawful, valid and/or enforceable and as so limited shall
remain in full force and effect, and (ii) not affect any other
provision of this Agreement or part thereof, each of which shall
remain in full force and effect.
(c) Governing
Law, Jurisdiction and Venue. This Agreement shall be
governed by and interpreted in accordance with the laws of the
State of Delaware other than its conflict of laws principles. The
parties agree that in the event that any suit or proceeding is
brought in connection with this Agreement, such suit or proceeding
shall be brought in the state or federal courts located in New
Castle County, Delaware, and the parties shall submit to the
exclusive jurisdiction of such courts and waive any and all
jurisdictional, venue and inconvenient forum objections to such
courts.
(d) Headings.
The headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this
Agreement.
(e) Notices.
All notices required or permitted under this Agreement shall be in
writing and shall be sufficiently made or given if hand delivered
or mailed by registered or certified mail, postage prepaid. Notice
by mail shall be deemed delivered on the date on which it is
postmarked.
Notices
to Company should be addressed to:
00000
XxxXxxxxx Xxxx., Xxxxx 000
Xxxxxx,
XX 00000-0000
Attention: Chief
Legal Officer
Notice
to Participant should be addressed to Participant at
Participant’s address as it appears on Company’s
records.
Company
or Participant may by writing to the other party designate a
different address for notices. If the receiving party consents in
advance, notice may be transmitted and received via telecopy or via
such other electronic transmission mechanism as may be available to
the parties. Such notices shall be deemed delivered when
received.
-4-
(f) Agreement
Not an Employment Contract. This Agreement is not an
employment or service contract, and nothing in this Agreement or in
the granting of the Restricted Shares shall be deemed to create in
any way whatsoever any obligation on Participant’s part to
continue as an employee of Company or any Subsidiary or on the part
of Company or any Subsidiary to continue Participant’s
employment or service as an Employee.
(g) Counterparts.
This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original Agreement but all of which, taken
together, shall constitute one and the same Agreement binding on
the parties hereto. The signature of any party hereto to any
counterpart hereof shall be deemed a signature to, and may be
appended to, any other counterpart hereof.
(h) Administration.
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration,
interpretation and application of the Plan and this Agreement as
are consistent with the Plan and to interpret or revoke any such
rules. All actions taken and all interpretations and determinations
made by the Committee (including determinations as to the
calculation, satisfaction or achievement of performance-based
vesting requirements, if any, to which the Restricted Shares are
subject) shall be final and binding upon Participant, Company and
all other interested persons. No member of the Committee shall be
personally liable for any action, determination or interpretation
made in good faith with respect to the Plan or this
Agreement.
(i) Entire
Agreement; Modification. This Agreement and the Plan contain
the entire agreement between the parties with respect to the
subject matter contained herein and may not be modified except as
provided in the Plan or in a written document signed by each of the
parties hereto and may be rescinded only by a written agreement
signed by both parties.
Remainder of Page Intentionally Left Blank; Signature Page
Follows
-5-
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Grant Date.
Award
Date:
_______________________________________
Number
of Restricted Shares: __________________________
Severance Benefits
Agreement:
________________________
Vesting Schedule:
___________________________________
|
|
|||
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
[Company
Representative]
|
|
|
|
|
[Title]
|
|
|
|
“Participant”
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
[Participant’s
Name]
|
|
|
|
|
[Title]
|
|
|
|
-6-
|
|
