AUTOWEB, INC. AMENDED AND RESTATED 2014 EQUITY INCENTIVE PLAN Subsidiary Employee Stock Option Award Agreement (Non-Qualified Stock Option) (Subsidiary)
Exhibit
10.15
AMENDED AND RESTATED 2014 EQUITY INCENTIVE PLAN
Subsidiary Employee Stock Option Award Agreement
(Non-Qualified Stock Option)
(Subsidiary)
This
Subsidiary Employee Stock Option Award Agreement
(“Agreement”) is
entered into effective as of the Grant Date set forth on the
signature page to this Agreement (“Grant 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 stock options granted hereby are subject to the
provisions of the AutoWeb, Inc. Amended and Restated 2014 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. Grant of Options. Company
hereby grants to Participant non-qualified stock options
(“Options”) to
purchase the number of shares of common stock of Company, par value
$0.001 per share, set forth on the signature page to this Agreement
(“Shares”), at
the exercise price per Share set forth on the signature page to
this Agreement (“Exercise
Price”). The Options are not intended to qualify as
incentive stock options under Section 422 of the Code.
2. Term of Options. Unless the
Options terminate earlier pursuant to the provisions of this
Agreement or the Plan, the Options shall expire on the seventh
(7th)
anniversary of the Grant Date (“Option Expiration
Date”).
3. Vesting. The Options shall
become vested and exercisable in accordance with the following
vesting schedule: (i) thirty-three and one-third percent (33 1/3%)
shall vest and become exercisable on the first anniversary after
the Grant Date; and (ii) one thirty-sixth (1/36th) shall vest and
become exercisable on each successive monthly anniversary
thereafter for the following twenty-four (24) months ending on the
third anniversary of such vesting commencement date. No
installments of the Options shall vest after Participant’s
termination of employment with Company or any Subsidiary for any
reason.
4. Exercise of
Options.
(a) Manner
of Exercise. To the extent vested, the Options may be
exercised, in whole or in part, by delivering written notice to
Company in accordance with Section 6(f) of this Agreement in such
form as Company may require from time to time, or at the direction
of Company, through the procedures established with Company’s
third party option administration service. Such notice shall
specify the number of Shares, subject to the Options that are being
exercised, and shall be accompanied by full payment of the Exercise
Price of such Shares in a manner permitted under the terms of
Section 5.5 of the Plan (including same-day sales through a
broker), except that payment in whole or in part in a manner set
forth in clauses (ii), (iii) or (iv) of Section 5.5(b) of the Plan
may only be made with the consent of the Committee. The Options may
be exercised only in multiples of whole Shares, and no fractional
Shares shall be issued.
(b) Issuance
of Shares. Upon exercise of the Options and payment of the
Exercise Price for the Shares as to which the Options are exercised
and satisfaction of all applicable tax withholding requirements, if
any, the Company shall issue to Participant the applicable number
of Shares in the form of fully paid and nonassessable
Shares.
|
|
|
|
-1-
(c) Withholding.
No Shares will be issued on exercise of the Options unless and
until Participant pays to Company, or makes satisfactory
arrangements with Company for payment of, any federal, state, local
or foreign taxes required by law to be withheld in respect of the
exercise of the Options. Participant hereby agrees that Company may
withhold from Participant’s wages or other remuneration the
applicable taxes. At the discretion of Company, the applicable
taxes may be withheld in kind from the Shares otherwise deliverable
to Participant on exercise of the Options, up to
Participant’s minimum required withholding rate or such other
rate determined by the Committee that will not trigger a negative
accounting impact.
5. Termination of
Options.
(a) Termination
Upon Expiration of Option Term. The Options shall terminate
and expire in their entirety on the Option Expiration Date. In no
event may Participant exercise the Options after the Option
Expiration Date, even if the application of another provision of
this Section 5 may result in an extension of the exercise period
for the Options beyond the Option Expiration Date.
(b) Termination
of Employment.
(i) Termination
of Employment Other Than Due to Death, Disability or Cause.
Participant may exercise the vested portion of the Options for a
period of ninety (90) days (but in no event later than the Option
Expiration Date) following any termination of Participant’s
employment with Company or any Subsidiary either by Participant or
Company or any Subsidiary other than in the event of a termination
of Participant’s employment by Company or any Subsidiary for
Cause (as defined below) or by reason of Participant’s death
or Disability (as defined below). To the extent Participant is not
entitled to exercise the Options at the date of termination of
employment, or if Participant does not exercise the Options within
the time specified in the Plan or this Agreement for
post-termination of employment exercises of the Options, the
Options shall terminate.
|
|
|
-2-
(ii) Termination
of Employment for Cause. Upon the termination of
Participant’s employment by Company or any Subsidiary for
Cause, unless the Options have earlier terminated, the Options
(whether vested or not) shall immediately terminate in their
entirety and shall thereafter not be exercisable to any extent
whatsoever; provided that Company, in its discretion, may, by
written notice to Participant given as of the date of termination,
authorize Participant to exercise any vested portion of the Options
for a period of up to thirty (30) days following
Participant’s termination of employment for Cause, provided
that in no event may Participant exercise the Options after the
Option Expiration Date. For purposes of this Agreement,
“Cause” shall
mean (1) if a definition of Cause made specifically applicable to
option awards held by Participant is provided in a written
employment or severance agreement between Participant and Company
or any Subsidiary or a severance plan of Company or any Subsidiary
covering Participant (including a change in control severance
agreement or plan) and any such agreement or plan is in effect at
the time of the termination of employment, Cause shall be as
defined in such other agreement or plan; or (2) if no such other
definition of Cause is in effect at the time of termination of
employment, “Cause” shall mean a determination
by Company in its sole discretion, that Participant (i) has
breached Participant’s terms of employment with Company or
any Subsidiary; (ii) has failed to comply with Company or any
Subsidiary policies and procedures in a material manner; (iii) has
engaged in disloyalty to Company or any Subsidiary, including,
without limitation, fraud, embezzlement, theft or dishonesty in the
course of Participant’s employment; (iv) has disclosed trade
secrets or confidential information of Company or any Subsidiary to
persons not entitled to receive such information; (v) has breached
any agreement between Participant and Company or any Subsidiary;
(vi) has engaged in such other behavior detrimental to the
interests of Company or any Subsidiary; (vii) has been convicted
of, or pled guilty or nolo contendere to any misdemeanor involving
moral turpitude or any felony; (viii) has failed in any material
manner to consistently discharge Participant’s employment
duties to the Company or any Subsidiary, which failure continues
for thirty (30) days following written notice from Company or any
Subsidiary detailing the area or areas of such failure, other than
such failure resulting from Participant’s Disability; (ix)
has knowingly engaged in or aided any act or transaction by Company
or any Subsidiary that results in the imposition of criminal, civil
or administrative penalties against Company or any Subsidiary; or
(x) has engaged in 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.
(iii) Termination
of Participant’s Employment By Reason of Participant’s
Death. In the event Participant’s employment is
terminated by reason of Participant’s death, the Options, to
the extent vested as of the date of termination, may be exercised
at any time within twelve (12) months following the date of
termination (but in no event later than the Option Expiration Date)
by Participant’s executor or personal representative or the
person to whom the Options shall have been transferred by will or
the laws of descent and distribution, but only to the extent
Participant could exercise the Options at the date of
termination.
(iv) Termination
of Participant’s Employment By Reason of Participant’s
Disability. In the event that Participant ceases to be an
employee of the Company or any Subsidiary by reason of
Participant’s Disability, unless the Options have earlier
terminated, Participant (or Participant’s attorney in fact,
conservator or other representative on behalf of Participant) may,
but only within twelve (12) months from the date of such
termination of employment (and in no event later than the Option
Expiration Date), exercise the Options to the extent Participant
was otherwise entitled to exercise the Options at the date of such
termination of employment. For purposes of this Agreement,
“Disability”
shall mean Participant’s 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.
|
|
|
-3-
(c) Change
in Control. In the event of a Change in Control, the effect
of the Change in Control on the Options shall be determined by the
applicable provisions of the Plan (including, without limitation,
Article 11 of the Plan), provided that (i) to the extent the
Options are assumed or substituted by the successor company in
connection with the Change in Control (or the Options are continued
by Company if it is the ultimate parent entity after the Change in
Control), the Options will vest and become fully exercisable in
accordance with clause (i) of Section 11.2(a) of the Plan if within
twenty-four (24) months following the date of the Change in Control
Participant’s employment is terminated by Company or any
Subsidiary (or the successor company or any subsidiary or parent
thereof) without Cause, and any vested Options (either vested prior
to the Change in Control or accelerated by reason of this Section
5(c)) may be exercised for a period of twenty-four (24) months
after the date of such termination of employment (but in no event
later than the Option Expiration Date); and (ii) any portion of the
Options which vests and becomes exercisable pursuant to Section
11.2(b) of the Plan as a result of such Change in Control will (1)
vest and become exercisable on the day prior to the date of the
Change in Control if Participant is then employed by Company or any
Subsidiary and (2) terminate on the date of the Change in Control.
For purposes of Section 11.2(a) of the Plan, the Options 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) if the Options 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 Shares. If the Options are not deemed assumed, substituted
or continued for purposes of Section 11.2(a) of the Plan, the
Options shall be deemed not assumed, substituted or continued and
governed by Section 11.2(b) of the Plan. Notwithstanding the
foregoing, if on the date of the Change in Control the Fair Market
Value of one Share is less than the Exercise Price per Share, then
the Options shall terminate as of the date of the Change in Control
except as otherwise determined by the Committee.
(d)
Extension
of Post-Termination Exercise Period. Notwithstanding any provisions of this
Section 5 to the contrary, if following termination of employment
or service the exercise of the Options or, if in conjunction with
the exercise of the Options, the sale of the Shares acquired on
exercise of the Options, during the post-termination of employment
or service time period set forth in the paragraph of this
Section 5 applicable to the reason for termination of employment or
service would, in the determination of the Company, violate
any applicable federal or state securities laws, rules, regulations
or orders (or any Company policy related thereto, including
its securities trading policy), the running of the applicable
period to exercise the Options shall be tolled for the number
of days during the period that the exercise of the Options or
sale of the Shares acquired on exercise would in the
Company’s determination constitute such a violation;
provided, however, that in
no event shall the exercisability of the Options be extended beyond
the Option Expiration Date.
|
|
|
-4-
(e) Other
Governing Agreements or Plans. To the extent not prohibited
by the Plan, the provisions of this Section 5 regarding the
acceleration of vesting of Options and the extension of the
exercise period for Options following a Change in Control or a
termination of Participant’s employment with Company or any
Subsidiary shall be superseded and governed by the provisions, if
any, of a written employment or severance agreement between
Participant and Company or any Subsidiary or a severance plan of
Company covering Participant, including a change in control
severance agreement or plan, to the extent such a provision (i) is
specifically applicable to option awards or grants made to
Participant and (ii) provides for the acceleration of Options
vesting or for a longer extension period for the exercise of the
Options in the case of a Change in Control or a particular event of
termination of Participant’s employment with Company or any
Subsidiary (e.g., an event of termination governed by Section
5(b)(i)) to this Agreement than is provided in the provision of
this Section 5 applicable to a Change in Control or to the same
event of employment termination; provided, however, that in no event
shall the exercisability of the Options be extended beyond the
Option Expiration Date.
(f) Forfeiture
upon Engaging in Detrimental Activities. If, at any
time within the twelve (12) months after (i) Participant exercises
any portion of the Options; or (ii) the effective date of any
termination of Participant’s employment by Company or any
Subsidiary 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)
the Options shall terminate 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 (y) the amount of any gain realized by Participant
from exercising all or a portion of the Options at any time
following the date that Participant engaged in any such activity or
conduct, as determined as of the time of exercise, 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 or any
Subsidiary; (ii) knowingly engaged or aided in any act or
transaction by Company or any 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.
(g) Reservation
of Committee Discretion to Accelerate Option Vesting and Extend
Option Exercise Window. The Committee reserves the right, in
its sole and absolute discretion, to accelerate the vesting of the
Options and to extend the exercise window for Options that have
vested (either in accordance with the terms of this Agreement or by
discretionary acceleration by the Committee) under circumstances
not otherwise covered by the foregoing provisions of this Section
5; provided that in no event may the Committee extend the exercise
window for Options beyond the Option Expiration Date. 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.
|
|
|
-5-
(h) Reversion
of Expired, Cancelled and Forfeited Options to Plan. Any
Options that do not vest or that are cancelled, terminated or
expire unexercised are forfeited and revert to the Plan and shall
again be available for Awards under the Plan.
6. Miscellaneous.
(a) No
Rights of Stockholder. Participant shall not have any of the
rights of a stockholder with respect to the Shares subject to this
Agreement until such Shares have been issued upon the due exercise
of the Options.
(b) Nontransferability
of Options. The Options shall be nontransferable or
assignable except to the extent expressly provided in the Plan.
Notwithstanding the foregoing, Participant may by delivering
written notice to Company in a form provided by or otherwise
satisfactory to Company, designate a third party who, in the event
of Participant’s death, shall thereafter be entitled to
exercise the Options. This Agreement
is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(c) 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.
(d) 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.
(e) Headings.
The headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this
Agreement.
(f) 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 or any
Subsidiary’s records.
|
|
|
-6-
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.
(g) 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 Options 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.
(h) 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.
(i) 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 Options 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.
|
|
|
-7-
(j) Policies
and Procedures. 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 the Company following a
public offering of the 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.
(k) 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
|
|
|
-8-
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Grant Date.
Grant
Date:
Total
Options
Awarded:
Exercise
Price Per
Share:
“Company”
AutoWeb, Inc., a Delaware corporation
By:
Xxxxx
X. Xxxxxx
Executive
Vice President, Chief Legal and
Administrative
Officer and Secretary
“Participant”
By:
|
|
|
-9-
