EXHIBIT (d)(16)
FORM OF OPTION AGREEMENT
UNDER 1999 ACQUISITION RELATED PLAN
[NON-QUALIFIED STOCK OPTION]
AUTOBYTEL INC.
A Delaware Corporation
XXXXXXXXX.XXX INC. 1999 EMPLOYEE AND ACQUISITION RELATED STOCK 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
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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: ____________
VESTING COMMENCEMENT DATE: ____________
EXERCISE PRICE PER SHARE: ____________
TOTAL NUMBER OF SHARES GRANTED: ____________
TOTAL EXERCISE PRICE: ____________
TYPE OF OPTION: NONSTATUTORY STOCK OPTION
TERM/EXPIRATION DATE: THE TENTH ANNIVERSARY OF THE DATE
OF XXXXX
X. Vesting Schedule:
You may exercise this Option, in whole or in part, according to the following
vesting schedule:
[INSERT ONE OF THE FOLLOWING PARAGRAPHS] -
Subject to Section II, Paragraphs D., E., F. and G. hereof, fifty percent (50%)
shall vest and become exercisable as of the vesting commencement date and fifty
percent (50%) shall vest and become exercisable twelve (12) calendar months
after the applicable vesting commencement
date. [THIS PARAGRAPH IS THE VESTING SCHEDULE FOR NEW OPTIONS ISSUED IN EXCHANGE
FOR UNVESTED OPTIONS]
OR
Subject to Section II, Paragraphs D., E., F. and G. hereof, sixty percent (60%)
shall become vested and exercisable as of the vesting commencement date, and
twenty percent (20%) shall vest and become exercisable twelve (12) calendar
months after the date of grant, and twenty percent (20%) shall vest and become
exercisable twenty-four (24) calendar months after the date of grant. [THIS
PARAGRAPH IS THE VESTING SCHEDULE FOR NEW OPTIONS ISSUED IN EXCHANGE FOR VESTED
OPTIONS]
B. Termination Period:
You may exercise this Option for ninety (90) days following your termination of
employment with the Company or any subsidiary thereof, 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
AGREEMENT
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 1999 Employee and Acquisition Related 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.
B. Exercise of Option.
(1) Right to Exercise. This Option shall be exercisable during its term
in accordance with the Vesting Schedule set out in the Notice of
Grant and with the applicable provisions of the Plan and this Option
Agreement. In the event of Optionee's death, disability or other
termination of the employment with the Company or any subsidiary
thereof, this Option shall be exercisable in accordance with the
applicable provisions of the Plan and this Option Agreement.
(2) Method of Exercise. This Option shall be exercisable by written
notice (in the form attached as Exhibit A) which shall state the
election to exercise the Option, the number of Shares in respect of
which the Option is being exercised, and such other representations
and agreements as to the holder's investment intent with respect to
such shares of Common Stock as may be required by the Company
pursuant to the provisions of the Plan. Such written notice shall be
signed by the Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company. The written notice
shall be
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accompanied by payment of the Exercise Price. This Option shall be
deemed to be exercised upon receipt by the Company of such written
notice accompanied by the Exercise Price. In the event the Company
determines that it is required to withhold income tax as a result of
the exercise of the Option, as a condition to the exercise thereof,
the Optionee may be required to make arrangements satisfactory to
the Company to enable it to satisfy such withholding requirements.
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 or other market 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.
C. Method of Payment. Payment of the Exercise Price shall be by any of the
following, or a combination thereof, at the election of the Optionee:
(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.
D. Restrictions on Exercise. This Option may not be exercised if the issuance
of such Shares upon such exercise or the method of payment of consideration for
such Shares would constitute a violation of any applicable federal or state
securities or other law or regulation, including any rule under Part 207 of
Title 12 of the Code of Federal Regulations ("Regulation G") as promulgated by
the Federal Reserve Board.
E. Termination of Relationship. As of the date of the Optionee's termination
of employment with the Company or any subsidiary thereof, Optionee may, to the
extent otherwise so entitled at the date of such termination, exercise this
Option for a period of ninety (90) days following the date of termination. To
the extent that Optionee was not entitled to exercise this Option at the date of
such termination, or if Optionee does not exercise this Option within the time
specified herein, the Option shall terminate.
F. Disability of Optionee. Notwithstanding the provisions of Paragraph E.
above, in the event of termination of an Optionee's employment with the Company
or any subsidiary thereof as a result of his or her Total and Permanent
Disability, Optionee may, but only within six (6) months
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from the date of such termination (and in no event later than the expiration
date of the term of such Option as set forth in Paragraph I. below), exercise
the Option to the extent otherwise entitled to exercise it at the date of such
termination. To the extent that Optionee was not entitled to exercise the 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.
G. Death of Optionee. In the event of termination of Optionee's employment or
service with the Company or any subsidiary thereof as a result of the death of
Optionee, the Option may be exercised at any time within twelve (12) months
following the date of death (but in no event later than the date of expiration
of the term of this Option as set forth in Paragraph I. below), 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 the Optionee could exercise the Option at
the date of death.
H. 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, successors
and assigns of the Optionee.
I. Term of Option. This Option may be exercised only within the term
set out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
J. Tax Consequences. Set forth below is a brief summary as of the date of
this Option of some of the federal and state 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.
(1) Exercise of the Options. There may be a regular federal income tax
liability and state income tax liability upon the exercise of the 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.
(2) Disposition of Shares. If Shares are held for at least one year, any gain
realized on disposition of the Shares should be treated as long-term
capital gain for federal and state income tax purposes.
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
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adversely to the Optionee's interest except by means of a writing signed by the
Company and Optionee. This Option Agreement is governed by Delaware law except
for that body of law pertaining to conflict of laws.
Autobytel Inc.
a Delaware corporation
By:
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Name:
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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 1999 EMPLOYEE AND ACQUISITION RELATED STOCK
OPTION PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL CONFER UPON
OPTIONEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT BY THE COMPANY OR
ANY SUBSIDIARY THEREOF, NOR SHALL IT INTERFERE IN ANY WAY WITH OPTIONEE'S RIGHT
OR THE COMPANY'S OR ANY SUBSIDIARY'S THEREOF 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:
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Name:
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Address:
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EXHIBIT A
1999 EMPLOYEE AND ACQUISITION RELATED STOCK OPTION PLAN
EXERCISE NOTICE
AUTOBYTEL INC.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000-0000
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 Autobytel
Inc. (the "Company") under and pursuant to the 1999 Employee and Acquisition
Related Stock Option Plan (the "Plan") and the Employee 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 shares subject to the Option, 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 5.2 of
the Plan.
4. 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.
5. Successors and Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to
the benefit of the successors and assigns of the Company. This Agreement
shall be binding upon Optionee and his or her heirs, executors,
administrators, successors and assigns.
6. Interpretation. Any dispute regarding the interpretation of this Agreement
shall be submitted by Optionee or by the Company forthwith to the Company's
Board of Directors or the
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committee thereof 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 the Company and on Optionee.
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.
8. 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.
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.
11. Entire Agreement. The Plan and Notice of Grant/Option Agreement are
incorporated herein by reference. This Agreement, the Plan and the 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.
Submitted by: Accepted by:
OPTIONEE: AUTOBYTEL INC.
By: By:
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Name: Title:
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Address: Address:
18872 MacArthur Boulevard
----------------------------------- Irvine, CA 92612-1400
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