Tax Benefit Preservation Plan Exemption Agreement
Exhibit 10.1
This
Tax Benefit Preservation Plan Exemption Agreement
(“Agreement”) is
made and entered into on and as of November 15, 2017
(“Effective
Date”), by and between AutoWeb, Inc., a Delaware
corporation (“Company”), and the undersigned
direct or beneficial holders of Common Stock (as hereinafter
defined) of the Company (“Stockholders”).
Background Facts
Effective as of May
26, 2010, the Company has adopted a Tax Benefit Preservation Plan,
which plan was amended by Amendment No. 1 to Tax Benefit
Preservation Plan dated as of April 14, 2014 and by Amendment No. 2
to Tax Benefit Preservation Plan dated April 13, 2017 (collectively
the “Plan”). The
Board of Directors of the Company (“Board”) adopted the Plan to
protect stockholder value by preserving important tax assets. The
Company has generated substantial net operating loss carryovers and
other tax attributes for United States federal income tax purposes
(“Tax Benefits”)
that can generally be used to offset future taxable income and
therefore reduce federal income tax obligations. However, the
Company’s ability to use the Tax Benefits will be adversely
affected if there is an “ownership change” of the
Company as defined under Section 382 of the Internal Revenue
Code (“Section
382”). In general, an ownership change will occur if
the Company’s “5% shareholders” (as defined under
Section 382) collectively increase their ownership in the
Company by more than 50% over a rolling three-year period. The Plan
was adopted to reduce the likelihood that the Company’s use
of its Tax Benefits could be substantially limited under
Section 382. The Plan is intended to deter any
“Person” (as
defined in the Plan) from becoming an “Acquiring Person” (as defined in
the Plan) and thereby jeopardizing the Company’s Tax
Benefits. In general, an Acquiring Person is any Person, itself or
together with all “Affiliates” (as defined in the
Plan) of such Person, that becomes the “Beneficial Owner” (as defined in
the Plan) of 4.90% or more of the Company’s outstanding
“Common Stock”
(as defined in the Plan). Under the Plan, the Board may, in its
sole discretion, exempt any person from being deemed an Acquiring
Person for purposes of the Plan if the Board determines that such
person’s ownership of Common Stock will not be likely to
directly or indirectly limit the availability of the
Company’s Tax Benefits or is otherwise in the best interests
of the Company. The Board shall not have any obligation,
implied or otherwise, to grant such an exemption.
Piton
Capital Partners LLC, a Delaware limited liability company
(“Piton”), is a
Stockholder and has informed the Company that as of the Effective
Date, Piton, together with all of its Affiliates and Associates,
Beneficially Owns 625,000 shares of
Common Stock (the “Current
Holdings”). As of
the Effective Date, the Current Holdings are as set forth on
Exhibit A attached
hereto and incorporated herein by reference (“Beneficial Ownership
Schedule”).
Piton
has informed the Company that if permitted to do so under the Plan,
Piton would be interested in acquiring additional shares of Common
Stock in excess of the Current Holdings. By letter dated September
27, 2017, a copy of which is attached hereto as Exhibit C and incorporated
herein by reference, (“Exemption Request Letter”), Piton
requested that the Board consider whether the Board would exercise
its discretionary authority under the Plan to deem Piton and its
Affiliates not to be an Acquiring Person by reason of the
acquisition of Beneficial Ownership of additional shares of Common
Stock because the acquisition of
Beneficial Ownership of shares of additional shares Common Stock by
Piton and its Affiliates will not be likely to directly or
indirectly limit the availability to the Company of the Tax
Benefits or otherwise is in the best interests of the Company
(i.e., ▇▇▇▇▇ ▇▇▇▇▇ a Plan Exemption).
The
Board has considered Piton’s request and is prepared to grant
a Plan Exemption pursuant to this Agreement to acquire shares of
Common Stock in excess of the Current Holdings provided that the
aggregate shares of Common Stock Beneficially Owned by Piton, any
other Stockholders that may become a party to this Agreement in
accordance with the terms hereof and their respective Affiliates
and Associates does not collectively exceed 7.5% of the
Company’s outstanding shares of Common Stock at the time of
the acquisition of Beneficial Ownership of the additional shares of
Common Stock, subject to and in reliance upon Piton and any other
such Stockholders entering into and remaining in compliance with
the terms and conditions set forth in this Agreement.
AGREEMENT
In
consideration of the representations, warranties, covenants and
agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereby agree as follows:
1.
Definitions.
1.1 For
purposes of this Agreement, the following terms shall have the
meanings set forth in this Section 1.
1.1.1
“Associate”
shall be as defined in the Plan.
1.1.2
“Beneficial
Ownership” shall be as determined pursuant to the
Plan.
1.1.3
“Beneficially
Own” shall be as defined in the Plan.
1.1.4
“Company Acquisition Transaction”
means (i) the commencement (within the meaning of Rule 14d-2 of the
General Rules and Regulations under the Exchange Act) of a tender
or exchange offer by a third party for at least 4.9% of the then
outstanding capital stock of the Company or any direct or indirect
Subsidiary of the Company, (ii) the commencement by a third party
of a proxy solicitation with respect to the election of any
directors of the Company or with respect to any transaction under
clauses (iii) or (iv) of this Section 1.1.3, (iii) any sale, license, lease, exchange, transfer,
disposition or acquisition of any portion of the business or assets
of the Company or any direct or indirect Subsidiary of the Company
(other than in the ordinary course of business), or (iv) any
merger, consolidation, business combination, share exchange,
reorganization, recapitalization, restructuring, liquidation,
dissolution or similar transaction or series of related
transactions involving the Company or any direct or indirect
Subsidiary of the Company.
1.1.5
“Exchange Act” means the Securities Exchange Act
of 1934, as amended.
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1.1.6
“Excess Shares” shall mean that
portion of the Shares which equals or exceeds 4.90% of the shares
of Common Stock then outstanding. For example, if the Shares
constitute 7.5% of the shares of Common Stock outstanding, then the
Excess Shares at that time shall constitute 2.60% (i.e., 7.5% minus
4.90%) of the shares of Common Stock outstanding.
1.1.7
“Group” shall have the meaning set
forth in Section 13(d)(3) of the Exchange Act and Rule 13d-5 of the
General Rules and Regulations under the Exchange Act.
1.1.8
“Person” shall be as defined in the
Plan.
1.1.9
“Plan Exemption” shall mean a grant
by the Board contemplated by Section 30 of the Plan to a Requesting
Person (as defined in the Plan) of authority to engage in an Exempt
Transaction (as defined in the Plan).
1.1.10
“Section 382 5% Shareholder” means
a “5-percent
shareholder” as defined under Section 382 and the
rules and regulations thereunder.
1.1.11
“SEC” means the Securities and
Exchange Commission.
1.1.12
“Shares” means all issued and
outstanding shares of Common Stock that Piton, any other
Stockholder and any of their respective Affiliates or Associates
are collectively deemed to Beneficially Own from time to time. In
the event of any change in the number of issued and outstanding
shares of Common Stock (including by reason of any stock split,
reverse split, stock dividend (including any dividend or
distribution of securities convertible into shares of Common
Stock), combination, reorganization, recapitalization or other like
change, conversion or exchange of shares, or any other change in
the corporate or capital structure of the Company), the term
“Shares” shall
be deemed to refer to and include the Shares as well as all such
stock dividends and distributions and any shares of capital stock
into which or for which any or all of the Shares may be changed or
exchanged.
1.1.13
“Subsidiary” of any Person shall mean any
corporation or other entity of which a majority of the voting power
of the voting equity securities or equity interest is owned,
directly or indirectly, by such Person.
2.
Voting of Excess
Shares.
2.1
Agreement to Vote Excess
Shares.
2.1.1
Piton and each other Stockholder
hereby covenants and agrees, jointly and severally, that during the
period commencing on the date hereof and continuing until this
Agreement terminates pursuant to Section 6, at any meeting
(whether annual or special and whether or not an adjourned or
postponed meeting) of the stockholders of the Company, and in any
action by written consent of the stockholders of the Company, Piton
and the other Stockholders shall (i) appear at the meeting or
otherwise cause any and all Excess Shares to be counted as present
thereat for purposes of establishing a quorum, and (ii) vote (or
cause to be voted) any and all Excess Shares in accordance with the
recommendations of, or instructions provided by, the Board. Piton
and each other Stockholder hereby further agrees not to enter into
any proxy, agreement or understanding with any person or entity the
effect of which would be materially inconsistent with or violative
of any provision contained in this Section 2.1.
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2.1.2
The parties acknowledge that
Piton or any other Stockholder may grant a proxy or enter into an
agreement or understanding with another Stockholder for the
purposes of voting Shares as long as (i) the Shares that are the
subject of any such proxy, agreement or understanding are voted in
compliance with the provisions of this Section 2.1 and 2.2; (ii)
any such proxy, agreement or understanding will not have the effect
of superseding or revoking the Proxy granted by Piton and the other
Stockholders under Section 2.2 and shall be subject and subordinate
to the exercise of such Proxy pursuant to Section 2.2; and (iii)
the granting of such proxy or entering into such an agreement or
understanding would not result in any Stockholder other than Piton
being a Section 382 5% Shareholder of the Company (it being
acknowledged and agreed that any ability of Piton’s trading
manager, Kokino LLC, and employees of Kokino LLC to vote Shares
owned by Piton is not subject to this Section 2.1.2).
2.2
Proxy. Concurrently with the execution
of this Agreement, Piton and each other Stockholder has delivered
to the Company a proxy in the form attached hereto as Exhibit B
(“Proxy”), which
shall be irrevocable to the fullest extent permissible by law, with
respect to the Excess Shares, subject to the other terms of this
Agreement. The Proxyholders (as defined in the Proxy) shall be
entitled to exercise the rights granted to them in the Proxy in
order to vote the Excess Shares in the event and to the extent that
Piton or any of the other Stockholders fail to vote the Excess
Shares in accordance with Section 2.1. Piton and each other
Stockholder represents, covenants and agrees that, except for (i)
the Proxy granted pursuant to the foregoing provisions of this
Section 2.2; (ii) any proxy granted by Piton or any other
Stockholder to another Stockholder in compliance with Section
2.1.2; (iii) any proxy or other voting agreement or understanding
granted or entered into by Piton or any other Stockholder to or
with the Company’s Board, the Company or any officer thereof;
(iv) any proxy or other voting agreement or understanding granted
or entered into by Piton or any other Stockholder with the approval
of the Board; or (v) as contemplated by this Agreement: (1) neither
Piton nor any other Stockholder shall, during the period commencing
on the date hereof and continuing until this Agreement terminates
pursuant to Section 6, grant any proxy or power of attorney,
or deposit any Shares into a voting trust or enter into a voting
agreement or other voting arrangement, with respect to the voting
of the Shares (each a “Voting
Proxy”), and (2) neither Piton nor any other
Stockholder has granted, entered into or otherwise created any
Voting Proxy which is currently (or which will hereafter become)
effective, and if any Voting Proxy has been created, such Voting
Proxy is hereby revoked (it being acknowledged and agreed that any
ability of Piton’s trading manager, Kokino LLC, and employees
of Kokino LLC to vote Shares owned by Piton is not a Voting
Proxy).
3.
Standstill.
3.1
Standstill
Provisions. Unless and until this Agreement is terminated
pursuant to Section 6, neither Piton nor any other Stockholder
will, in any manner, directly or indirectly (except (i) pursuant to
a negotiated transaction approved by the Board; or (ii) as may
otherwise be approved by the Board), and Piton and the other
Stockholders will cause their respective Affiliates and Associates,
to not:
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(a) make,
effect, initiate, cause or participate in (i) any acquisition of
Beneficial Ownership of any securities of the Company or any
securities of any Subsidiary or other Affiliate or Associate of the
Company (except such transfers between Stockholders in compliance
with Section 3.2), (ii) any Company Acquisition Transaction, or
(iii) any “solicitation” of “proxies” (as
those terms are defined in Rule 14a-1 of the General Rules and
Regulations under the Exchange Act) or consents with respect to any
securities of the Company; provided,
the parties acknowledge that (1) neither Piton nor any other
Stockholder shall be deemed to make, effect, initiate, cause or
participate in any acquisition of Beneficial Ownership under clause
(i) of this Subsection 3.1(a) solely by reason of engaging in any
event permitted by Section 3.3; (2) neither Piton nor any other
Stockholder shall be deemed to make, effect, initiate, cause or
participate in any Company Acquisition Transaction under clause
(ii) of this Subsection 3.1(a) or any solicitation of proxies under
clause (iii) of this Subsection 3.1(a) solely by reason of Piton or
another Stockholder voting its Shares in compliance with Section
2.1.1; and (3) neither Piton nor any other Stockholder shall be
deemed to make, effect, initiate, cause or participate in any
solicitation of proxies under clause (iii) of this Subsection
3.1(a) solely by reason of any solicitation of a proxy, agreement
or understanding from Piton or another Stockholder regarding the
voting of the Shares in compliance with Sections 2.1.1 and
2.1.2;
(b)
nominate or seek to nominate any person to the Board or otherwise
act, alone or in concert with others, to seek to control or
influence the management, Board or policies of the
Company;
(c)
take any action which might force the Company to make a public
announcement regarding any of the types of matters set forth in
subsection (a) of this Section 3.1;
(d)
request or propose that the Company (or its directors, officers,
employees or agents), directly or indirectly, amend or waive any
provision of this Section 3.1, including this
subsection 3.1(d);
(e)
agree or offer to take, or encourage or propose (publicly or
otherwise) the taking of, any action referred to in subsections
(a), (b), (c) or (d) of this Section 3.1;
(f)
assist, induce or encourage any other Person to take any action
referred to in subsections (a), (b), (c) or (d) of this
Section 3.1; or
(g)
enter into any discussions or arrangements with any third party
with respect to the taking of any action referred to in subsections
(a), (b), (c) or (d) of this Section 3.1.
Notwithstanding
the foregoing provisions of this Section 3.1, Piton, the other
Stockholders and their respective Affiliates and Associates may
from time to time in one or more transactions acquire Beneficial
Ownership of additional shares of Common Stock (“Additional Shares”), provided that
(i) the collective Beneficial Ownership of Piton, the Stockholders,
and their respective Affiliates and Associates does not exceed 7.5%
of the outstanding shares of Common Stock at the time of the
acquisition of Beneficial Ownership of Additional Shares; (ii)
Piton and the Stockholders are in compliance with all of the
provisions of this Agreement as of the acquisition date of any
Additional Shares; (iii) the representations and warranties of
Piton and the other Stockholders in this Agreement shall be true,
accurate and complete as if made as of the date of any such
acquisition of Additional Shares (provided, there shall be no
requirement to provide the Company with an updated Beneficial
Ownership Schedule to this Agreement on account of any acquisition
of Additional Shares by Piton); and (iv) the acquisition of
Additional Shares would not result in any Person who is not Piton,
other Stockholders (if any), or their respective Affiliates and
Associates, individually or collectively, constituting a Section
382 5% Shareholder. Piton, the other Stockholders and their
respective Affiliates and Associates shall not be required to
divest Shares, and the Plan Exemption shall not be modified or
rescinded, solely as the result of any change in the number of
issued and outstanding shares of Common Stock (including by reason
of any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into shares of
Common Stock)), even if such change causes Piton, the other
Stockholders and their respective Affiliates and Associates to
Beneficially Own more than 7.5% of the outstanding shares of Common
Stock (either individually or in the aggregate).
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3.2
Section 382
Compliance. Unless and until this Agreement is terminated
pursuant to Section 6, no direct or indirect transfers of shares of
Common Stock between and among Piton or the other Stockholders
shall be permitted if, as a result of any such transfer, any
Stockholder (other than Piton) shall become the Beneficial Owner of
Shares in an amount that would result in such Stockholder being a
Section 382 5% Shareholder of the Company.
3.3
Transfers of Common
Stock. Unless and until this Agreement is terminated
pursuant to Section 6, neither Piton nor any other Stockholder will
sell or otherwise transfer any Beneficial Ownership in any shares
of Common Stock to any Person not a party to this Agreement
except:
(a)
in open market transactions on The Nasdaq Capital Market or on such
principal stock exchange as the Common Stock is then listed for
trading; or if the Common Stock is not listed on any stock exchange
at the time, then in transactions effected through trading on an
inter-dealer quotation system if the Common Stock is then quoted on
such a system, and if not, then through trading on over-the-counter
bulletin boards or “pink sheets;” or
(b)
in private transactions and only if any such private transaction is
not to any Person or Group that Piton or the transferring
Stockholder reasonably believes after due inquiry Beneficially Owns
or as a result of such transaction would Beneficially Own 4.9% or
more of the Company’s then outstanding Common
Stock.
3.4
Grant of Plan
Exemption. Subject to and in reliance upon the
representations, warranties and obligations of the Stockholder
under this Agreement and in accordance with the terms and
conditions of this Agreement, the Board has granted the
Stockholders a Plan Exemption. As long as the Stockholders remain
in full compliance with this Agreement, the Company shall maintain
the Plan Exemption in effect.
3.5
Section 13
Filings. In the event that Piton or any other Stockholder
files any schedule, form or report under Section 13 of the Exchange
Act with the SEC indicating that it is the beneficial owner (as the
term “beneficial ownership” is defined by Rule 13d-3
promulgated under the Exchange Act) of more than five percent of
the outstanding Common Stock, Piton and the other Stockholders
agree to cooperate with the Company upon the Company’s
reasonable request for information from Piton, the Stockholders and
their respective Affiliates and Associates regarding the beneficial
ownership structure and interest percentage in Common Stock held by
Piton, the Stockholders and any of their respective Affiliates and
Associates.
4.
Representations and Warranties of Piton and the Other
Stockholders. Piton and each
other Stockholder hereby makes the following representations and
warranties, severally and not jointly (except in the case of
Sections 4.4, 4.5, 4.6, 4.7 and 4.8, which representations and
warranties are made jointly and severally by Piton and all of the
other Stockholders):
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4.1
Authority;
Validity. Piton and each other Stockholder has all requisite
capacity, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Piton and the other Stockholders and
the consummation by Piton and the other Stockholders of the
transactions contemplated hereby have been duly and validly
authorized by all necessary action on the part of Piton and the
other Stockholders. This Agreement has been duly executed and
delivered by Piton and the other Stockholders. If this Agreement is
being executed in a representative or fiduciary capacity with
respect to Piton or any other Stockholder, the person signing this
Agreement has full power and authority to enter into and perform
this Agreement.
4.2
Non-Contravention.
The execution, delivery and performance of this Agreement does not,
and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, contravene,
conflict with, or result in any violation of, breach of, or default
by (with or without notice or lapse of time, or both) the
Stockholder under, or give rise to a right of termination,
cancellation or acceleration of any obligation under, or result in
the creation of any encumbrance upon any of the properties or
assets of Piton or of any other Stockholder under, any provision of
(i) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to Piton or any other
Stockholder or to which Piton or any other Stockholder is a party,
or (ii) any judgment, order, decree, statute, law, ordinance,
injunction, rule or regulation applicable to Piton or any other
Stockholder or any of Piton’s or any other
Stockholder’s properties or assets, other than any such
conflicts, violations, defaults, rights, or encumbrances that,
individually or in the aggregate, would not impair the ability of
Piton or any other Stockholder to perform Piton’s or each
Stockholder’s obligations hereunder or prevent, limit or
restrict in any respect the consummation of any of the transactions
contemplated hereby.
4.3
Litigation.
As of the date hereof, there is no action pending, or to the
knowledge of Piton and of each Stockholder, threatened with respect
to Piton’s or a Stockholder’s ownership of Shares, nor
is there any judgment, decree, injunction or order of any
applicable governmental entity or arbitrator outstanding which
would prevent the carrying out by Piton and the other Stockholders
of their respective obligations under this Agreement or any of the
transactions contemplated hereby, declare unlawful the transactions
contemplated hereby or cause such transactions to be
rescinded.
4.4
Beneficial
Ownership. As of the
Effective Date, the number of shares of Common Stock set forth on
the Beneficial Ownership Schedule are the only shares of Common
Stock Beneficially Owned by Piton, the other Stockholders and their
respective Affiliates and Associates. On and as of the Effective
Date, the Shares are free and clear of any encumbrances that,
individually or in the aggregate, would impair the ability of Piton
or the other Stockholders to perform their respective obligations
under this Agreement or prevent, limit or restrict in any respect
the consummation of any of the transactions contemplated hereby. No
one Stockholder (other than Piton) Beneficially Owns 4.9% or more
of the outstanding Common Stock of the Company for purposes of
Section 382 as of the Effective Date.
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4.5
Acquisition of
Shares.
Piton and the other Stockholders collectively represent that the
Shares were not acquired for the purpose or with the intention of
causing Piton or any other Stockholder (whether collectively or
individually) to become an Acquiring Person.
4.6
Reliance.
Piton and the other Stockholders acknowledge that the Company is
relying on the representations and covenants contained herein for
purposes of granting the Plan Exemption set forth in this
Agreement.
4.7
No Influence or
Control. As of the Effective Date, and at all times while
this Agreement is in effect, Piton and the other Stockholders
collectively represent that Piton and the other Stockholders
(together with their respective Affiliates and Associates): (i)
have acquired the Shares set forth on the Beneficial Ownership
Schedule in the ordinary course of their respective businesses,
(ii) have not acquired the Shares with the purpose or the effect of
changing or influencing the control of the Company, and (iii) have
not acquired the Shares in connection with or as a participant in
any transaction having such purpose or effect. As of the Effective
Date, Piton and the other Stockholders collectively represent that
Piton and the other Stockholders (together with their respective
Affiliates and Associates) do not have any knowledge that any third
party is currently engaged in undertaking, or has any intention or
plan to undertake, a Company Acquisition Transaction. To the extent
this Agreement permits any additional acquisition of shares of
Common Stock by Piton or any other Stockholder, Piton and the other
Stockholders further collectively represent that if they (or any of
them individually) acquire any additional Shares on the Effective
Date or at any time following the Effective Date until this
Agreement terminates pursuant to Section 6, such
acquisition of Shares (1) will not be made with the purpose or the
effect of changing or influencing the control of the Company, and
(2) will not be made in connection with (and neither Piton nor any
other Stockholders will be a participant in) any transaction having
such purpose or effect. Notwithstanding anything to the contrary in
this Agreement, Piton, the other Stockholders and their respective
Affiliates and Associates may vote Shares which are not Excess
Shares and nothing herein shall be deemed to limit or impact such
voting discretion.
4.8
Family
Office. The principal business
of Piton is to act as a pooled investment vehicle for
various “family
clients” (as defined in SEC Rule
202(a)(11)(G)-1 (“Family Office
Rule”)) (“Family Clients”) of Kokino LLC (“Kokino”),
which is a single “family office” (as defined in the
Family Office Rule) (“Family
Office”) that provides
investment management services solely to an individual disclosed by
Piton to Company as of the Effective Date, such individual’s
family members (as defined in the Family Office Rule) and other
Family Clients of Kokino, including Piton with respect to the
shares of Company Common Stock Beneficially Owned by Piton (such
disclosed individual, such individual’s family members and
such other Family Clients of Kokino are collectively referred to
herein as the “Kokino Family
Clients”).
5.
Reresentations and Warranties of the
Company. The Company
represents and warrants to Piton and each of the other Stockholders
that:
5.1
Authority;
Validity. The Company
has all requisite capacity, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby
have been duly and validly authorized by all necessary action on
the part of the Company. This Agreement has been duly executed and
delivered by the Company. If this Agreement is being executed in a
representative or fiduciary capacity with respect to the Company,
the person signing this Agreement has full power and authority to
enter into and perform this Agreement.
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5.2
Non-Contravention.
The execution, delivery and performance of this Agreement does not,
and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, (a) require
the Company to obtain the consent or approval of any governmental
entity, (b) require the consent or approval of any other
person pursuant to any agreement, obligation or instrument binding
on the Company or its properties and assets, (c) conflict with
or violate any organizational document or law, rule, regulation,
order, judgment or decree applicable to the Company or pursuant to
which any of its assets are bound, or (d) violate any other
material agreement to which the Company or any of its subsidiaries
is a party.
6.
Effectiveness; Termination; Survival.
6.1
Effectiveness.
This Agreement shall become effective upon its execution by each of
the Stockholders and the Company.
6.2
Termination.
This Agreement, and the obligations of Piton and the other
Stockholders hereunder, including, without limitation,
Piton’s and the other Stockholders’ obligations under
Section 2 and Section 3 shall terminate: (i) at any time
by written consent of Piton and the other Stockholders and the
Company, (ii) automatically upon the termination of the Plan
whether by the Board or upon its own terms, unless a substitute or
successor tax benefit preservation or other stockholder rights plan
is implemented, in which case this Agreement shall not terminate,
(iii) automatically upon the delivery to the Company of a
certification executed by an authorized officer of Piton and of
each of the other Stockholders (which certification may be provided
by an authorized officer of Piton’s trading manager, Kokino
LLC), certifying that Piton and the other Stockholders (together
with their respective Affiliates and Associates) collectively
Beneficially Own less than 4.9% of the then-outstanding shares of
Common Stock; and (iv) automatically if Kokino or its successor (if
any) ceases to be a Family Office for the Kokino Family Clients.
The Plan Exemption granted by the Board shall continue for only so
long as Piton and the other Stockholders are in compliance with the
terms of this Agreement. If Piton or any of the other Stockholders
violate any provision herein, then the Board shall have the right,
in its sole discretion, to revoke the Plan Exemption, upon which
Piton and the other Stockholders shall be an Acquiring Person as
defined in and for purposes of the Plan if Piton or any other
Stockholder otherwise meets the requirements to be deemed an
Acquiring Person at such time.
6.3
Survival.
Section 8, Section 9 and Section 10 shall survive the termination
of this Agreement for any reason.
7.
Additional Shares; Additional Stockholders.
Piton
and the other Stockholders agree that any Shares acquired on or
after the Effective Date and before the termination of this
Agreement pursuant to Section 6 shall be subject to the terms and
conditions of this Agreement to the same extent as if they
constituted Shares as of the Effective Date. If, during the period
commencing on the Effective Date and continuing until this
Agreement terminates pursuant to Section 6, any
Affiliate or Associate of Piton or of any other Stockholder who is
not already a holder of Shares as of the Effective Date acquires
Shares, then Piton or the Stockholder of which the person is an
Affiliate or Associate shall cause the person to become a party to
this Agreement by executing and delivering a counterpart signature
page hereto and agree to be bound by and subject to the terms and
conditions of this Agreement as a Stockholder.
- 9 -
8.
Additional Agreements. In the event that
this Agreement is terminated in accordance with Section 6.2 and
Piton or any other Stockholder or any of their respective
Affiliates or Associates (whether collectively or individually) are
again deemed to Beneficially Own 4.9% or more of the outstanding
shares of Common Stock, then, should the Board again exercise its
discretionary authority under the Plan to ▇▇▇▇▇ ▇▇▇▇▇ or any other
Stockholder another Plan Exemption (which the Board is not
obligated to grant), Piton and the other Stockholders (to the
extent they Beneficially Own Shares at that time) agree (and agree
to compel their respective Affiliates and Associates, as
applicable) to enter into an exemption agreement with the Company
on substantially the same terms as set forth herein. In addition,
to the extent that the Plan is terminated (whether by the Board or
upon its own terms) and replaced by a new tax benefit preservation
or stockholder rights plan, then, at the request of the Company,
Piton and the other Stockholders agree (and agree to compel their
respective Affiliates and Associates, as applicable) to enter into
a new exemption agreement on substantially the same terms as this
Agreement should the Board again exercise its discretionary
authority under the Plan to ▇▇▇▇▇ ▇▇▇▇▇ or any other Stockholder
another Plan Exemption (which the Board is not obligated to
grant).
9.
Further Assurances. Subject to the terms of this
Agreement, from time to time, Piton and the other Stockholders
shall execute and deliver such additional documents and use
commercially reasonable efforts to take, or cause to be taken, all
such further actions, and to do or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement.
10.
Miscellaneous.
10.1
Severability.
If any term, provision, covenant or restriction of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or
invalidated.
10.2
Binding Effect and
Assignment. This
Agreement and all of the provisions hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, but neither this Agreement nor
any of the rights, interests or obligations of the parties hereto
may be assigned by either of the parties without the prior written
consent of the other parties.
10.3
Amendments and
Modification. This
Agreement may not be modified, amended, altered or supplemented
except upon the execution and delivery of a written agreement
executed by the parties hereto.
10.4
Specific
Performance; Injunctive Relief. The
parties hereto acknowledge that the parties may be irreparably
harmed and that there may be no adequate remedy at law for a
violation of any of the covenants or agreements of the other
parties set forth herein. Therefore, it is agreed that, in addition
to any other remedies that may be available upon any such
violation, each party shall have the right to seek enforcement of
such covenants and agreements by specific performance, injunctive
relief or by any other means available to such party at law or in
equity.
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10.5
Attorney’s
Fees. If any action,
suit or other proceeding (whether at law, in equity or otherwise)
is instituted concerning or arising out of this Agreement or any
transaction contemplated hereunder, the prevailing party shall be
entitled to recover, in addition to any other remedy granted to
such party therein, all such party’s costs and
attorneys’ fees incurred in connection with the prosecution
or defense of such action, suit or other proceeding.
10.6
Notices.
Unless otherwise specified herein, all notices or other
communications required or permitted hereunder shall be in writing
and shall be deemed effectively given, (i) on the date received, if
personally delivered or sent by facsimile or e-mail during normal
business hours, (ii) on the business day after being received if
sent by facsimile or e-mail other than during normal business
hours, (iii) one (1) business day after being sent by Federal
Express, UPS or other comparably reputable delivery service, or
(iv) five (5) business days after being sent by registered or
certified mail. All communications shall be sent to the address as
set forth on the signature pages hereof or at such other address
for a party as shall be specified by like notice.
10.7
Governing Law;
Submission to Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof. The parties hereby
irrevocably and unconditionally consent to submit to the exclusive
jurisdiction of the courts of the United States of America located
in the State of Delaware (or, if such courts lack jurisdiction, the
appropriate Delaware state courts) for any actions, suits or
proceedings arising out of or relating to this Agreement (and the
parties agree not to commence any action, suit or proceeding
relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by U.S.
certified mail shall be effective service of process for any
action, suit or proceeding brought against the parties in any such
court. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding
arising out of this Agreement in the courts of the United States of
America located in the State of Delaware (or, if such courts lack
jurisdiction, the appropriate Delaware state courts) and hereby
further irrevocably and unconditionally waive and agree not to
plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an
inconvenient forum.
10.8
Entire
Agreement. This Agreement and the Proxy granted hereunder
constitute and contain the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersede
any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties
respecting the subject matter hereof.
10.9
Counterparts.
This Agreement may be executed in counterparts and may be delivered
by e-mail, each of which counterparts shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
10.10
Captions.
The captions to sections of this Agreement have been inserted only
for identification and reference purposes and shall not be used to
construe or interpret this Agreement.
[Remainder of Page Intentionally Left Blank; Signature Pages
and Exhibits Follow]
- 11 -
In Witness
Whereof, the parties hereto have caused this Agreement to be
executed as of the Effective Date.
By:
/s/▇▇▇▇▇ ▇.
▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President,
Chief Legal and Administrative Officer
and Secretary
Notice
Address:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Email
Address: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Facsimile No.:
949.862.1323
Attn:
Chief Legal Officer
Stockholders
Piton Capital Partners LLC
By:
Piton Capital Management LLC, its managing member
By:
Kokino LLC, its managing member
By:
/s/ ▇▇▇▇▇▇▇ ▇.
Ives_____________
▇▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President
Notice Address for Stockholders
|
Piton
Capital Partners LLC
c/o
Kokino LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Email
Address: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
|
|
- 12 -
EXHIBIT A
BENEFICIAL OWNERSHIP SCHEDULE
|
Stockholder
|
Beneficial Ownership of Common Stock
|
|
Piton
Capital Partners
|
625,000
|
- 13 -
Exhibit B
IRREVOCABLE
PROXY
The
undersigned stockholders (“Stockholders”)
of AutoWeb, Inc., a Delaware corporation (“Company”),
hereby irrevocably appoint and constitute ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ for as long as they are officers
and/or employees of the Company (collectively, the
“Proxyholders”),
and each of them individually, the agents, attorneys-in-fact and
proxies of the undersigned, with full power of substitution and
resubstitution, to the full extent of the undersigned’s
rights with respect to all Excess Shares (as defined in that
certain Tax Benefit Preservation Plan Exemption Agreement dated as
of November 15, 2017 (“Exemption
Agreement”)) beneficially owned by the Stockholders
(including any Excess Shares acquired by any Stockholder on or
after the date hereof and before the date this proxy terminates) to
vote the Excess Shares as follows: the Proxyholders named above, or
each of them individually, are empowered at any time before
termination of this proxy to exercise all voting rights of the
undersigned at any meeting (whether annual or special and whether
or not an adjourned or postponed meeting) of stockholders of the
Company, and in any action by written consent of the stockholders
of the Company, with respect to the Excess Shares in accordance
with the recommendations of or instructions provided by the
Board.
The
proxy granted by the Stockholders to the Proxyholders hereby is
granted as of the date of this Irrevocable Proxy in order to secure
the obligations of the Stockholders set forth in Section 2.1 of the
Exemption Agreement and is irrevocable in accordance with
subdivision (e) of Section 212 of the Delaware General
Corporation Law.
This
proxy will automatically terminate upon the termination of the
Exemption Agreement in accordance with its terms. Additionally,
this proxy will automatically terminate with respect to a
Proxyholder if he or she ceases to be an officer and/or employee of
the Company. This proxy may not be transferred by any Proxyholder
or assumed by any person without the express prior written consent
of the undersigned. The Stockholders acknowledge that the foregoing
provisions of this paragraph shall not preclude or require the
Stockholders’ consent for the substitution or resubstitution
of a new Proxyholder who is also an officer and/or employee of the
Company.
Except
as contemplated or permitted by the Agreement, upon the execution
hereof, all prior proxies given by the undersigned with respect to
the Excess Shares are hereby revoked and no subsequent proxies
regarding the Excess Shares will be given until such time as this
proxy shall be terminated in accordance with its terms. Any
obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This
proxy is irrevocable (to the fullest extent permitted by law) and
shall survive the insolvency, incapacity, death, liquidation or
dissolution of the undersigned.
Dated:
November 15, 2017
Piton Capital Partners LLC
By:
Piton Capital Management LLC, its managing member
By:
Kokino LLC, its managing member
By:
___________________
▇▇▇▇▇▇▇
▇. ▇▇▇▇
Vice
President
- 14 -
Exhibit C
EXEMPTION
REQUEST LETTER
- 15 -
- 16 -
-17-