EXHIBIT (d)(17)
FORM OF OPTION AGREEMENT
UNDER 2000 PLAN
[NON-QUALIFIED & ISO]
AUTOBYTEL INC.
A Delaware Corporation
2000 STOCK OPTION PLAN
▇▇▇▇▇▇▇▇▇.▇▇▇ INC. 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: __________________________________________
Term/Expiration Date: THE TENTH ANNIVERSARY OF THE DATE OF ▇▇▇▇▇
▇. 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 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
AGREEMENT
▇. ▇▇▇▇▇ 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 2000 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.
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").
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, 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
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Shares in respect of which the Option is being exercised, and such other
representations and agreements 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
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.
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.
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 until such time as
the Plan has been approved by the shareholders of the Company, or 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, Optionee may, to the extent otherwise so entitled
at the date of such termination, exercise this Option for a period of three (3)
months 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.
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F. Disability of Optionee. Notwithstanding the provisions of Paragraph E. above,
in the event of termination of an Optionee's employment with the Company as a
result of his or her Total and Permanent Disability, Optionee may, but only
within six (6) months 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; provided, however, that if such disability is not
a "disability" as such term is defined in Section 22(e)(3) of the Code, in the
case of an ISO such ISO shall cease to be treated as an ISO and shall be treated
for tax purposes as a NSO on the day three months and one day following 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 with
the Company 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. The limitations set out in Section
6.3 of the Plan regarding Options designated as ISOs and Section 4.2 of the Plan
regarding Options granted to more than ten (10%) shareholders shall apply to
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 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.
(2) Exercise of ISO Following Disability. If the Optionee's employment with
the Company terminates as a result of disability that is not a
disability as defined in Section 22(e)(3) of the Code, to the extent
permitted on the date of termination, the
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Optionee must exercise an ISO within three months of such termination
for the ISO to be qualified as an ISO.
(3) Exercise of NSO. There may be a regular federal income tax liability and
state income tax liability upon the exercise of a NSO. 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.
(4) Disposition of Shares. In the case of an NSO, 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. In the case of an ISO, if Shares transferred pursuant to the
Option are held for at least one year after exercise and are disposed of
at least two years after the Date of Grant, any gain realized on
disposition of the Shares should also be treated as long-term capital
gain for federal and state income tax purposes. If Shares purchased
under an ISO are disposed of within such one-year period or within two
years after the Date of Grant, any gain realized on such disposition
will be treated as compensation income (taxable at ordinary income
rates) to the extent of the difference between the Exercise Price and
the lesser of (1) the Fair Market Value of the Shares on the date of
exercise, or (2) the sale price of the Shares. Any additional gain will
be taxed as capital gain, short-term or long-term depending on the
period that the ISO Shares were held.
(5) Notice of Disqualifying Disposition of ISO Shares. If the Option granted
to Optionee herein is an ISO, and if Optionee sells or otherwise
disposes of any of the Shares acquired pursuant to the ISO on or before
the later of (1) the date two years after the Date of Grant, or (2) the
date one year after the date of exercise, the Optionee shall immediately
notify the Company in writing of such disposition. Optionee agrees that
Optionee may be subject to income tax withholding by the Company on the
compensation income recognized by the Optionee.
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 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: 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 2000 STOCK 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:
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Name:
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Address:
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EXHIBIT A
2000 STOCK OPTION PLAN
EXERCISE NOTICE
Autobytel Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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
▇▇▇▇▇▇▇▇▇.▇▇▇ inc. (the "Company") under and pursuant to the 2000 Stock
Option Plan (the "Plan") and the [ ] Incentive [ ] Nonstatutory 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 Optioned Stock, 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. Optionee further agrees to notify the Company upon the
disposition of any Shares acquired pursuant to the exercise of an Incentive
Stock Option.
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. Subject to the
restrictions on transfer herein set forth, this Agreement shall be binding
upon Optionee and his or her heirs, executors, administrators, successors
and assigns.
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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 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, and may not be modified adversely to the Optionee's
interest except by means of a writing signed by the Company and Optionee
Submitted by: Accepted by:
OPTIONEE: Autobytel Inc.
By: By:
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Name:
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Address: Title:
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Address:
------------------------------------ 18872 MacArthur Boulevard
Irvine, CA 92612-1400
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