AUTOWEB, INC. Employee Stock Option Award Agreement (Non-Qualified Stock Option) (Executive)
Exhibit 10.9
2018 EQUITY INCENTIVE PLAN
(Non-Qualified Stock Option)
(Executive)
This
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. 2018 Equity Incentive Plan
(“Plan”). In the
event of a conflict between the provisions of the Plan and this
Agreement, the Plan shall control. Capitalized terms used but not
defined in this Agreement shall have the meanings assigned to such
terms in the Plan.
1. 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 vesting
schedule set forth on the signature page to this agreement
(“Vesting
Schedule”).
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.
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(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.
(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.
(1) 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, either by Participant or Company, other than in the
event of a termination of Participant’s employment by Company
for Cause (as defined below), voluntary termination by Participant
without Good Reason (as defined below) or by reason of
Participant’s death or Disability (as defined below). In the
event the termination of Participant’s employment is by
Company without Cause or by Participant for Good Reason, any
unvested portion of the Options shall become immediately and fully
vested as of the date of such termination.
(2) In
the event of a voluntary termination of employment with the Company
by Participant without Good Reason, (i) unvested Options as of the
date of termination shall immediately terminate in their entirety
and shall thereafter not be exercisable to any extent whatsoever;
and (ii) Participant may exercise any portion of the Options that
are vested as of the date of termination for a period of ninety
(90) days (but in no event later than the Option Expiration Date)
following the date of termination.
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(3) For
purposes of this Agreement, the terms “Cause” and “Good Reason” shall have the meanings ascribed
to them in that certain Severance Benefits Agreement listed on the
signature page to this Agreement by and between Company and
Participant (“Severance
Agreement”). 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.
(ii) Termination
of Employment for Cause. Upon the termination of
Participant’s employment by Company 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 beyond the Option Expiration
Date.
(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 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.
(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 10 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 10.2(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 a
Subsidiary (or the successor company or a subsidiary or parent
thereof) without Cause or by Participant for Good Reason, 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 10.2(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 a Subsidiary and (2)
terminate on the date of the Change in Control. For purposes of
Section 10.2(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 10.2(a) of the Plan, the Options shall be
deemed not assumed, substituted or continued and governed by
Section 10.2(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.
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(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 service time period set forth in the paragraph
of this Section 5 applicable to the reason for termination of
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.
(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 shall be
superseded and governed by the provisions, if any, of a written
employment or severance agreement between Participant and Company
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
(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 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; (ii)
knowingly engaged or aided in any act or transaction by Company or
a Subsidiary that results in the imposition of criminal, civil or
administrative penalties against Company or any Subsidiary; or
(iii) misconduct during the course of Participant’s
employment by Company or any Subsidiary that results in an
accounting restatement by Company due to material noncompliance
with any financial reporting requirement under applicable
securities laws, whether such restatement occurs during or after
Participant’s employment by Company or any
Subsidiary.
(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.
(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.
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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
records.
Company
or Participant may by writing to the other party designate a
different address for notices. If the receiving party consents in
advance, notice may be transmitted and received via telecopy or via
such other electronic transmission mechanism as may be available to
the parties. Such notices shall be deemed delivered when
received.
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(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.
(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
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IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Grant Date.
Grant
Date:
_______________________________________
Total
Options Awarded: ______________________________
Exercise Price Per
Share: _____________________________
Severance Benefits
Agreement:
________________________
Vesting Schedule:
___________________________________
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“Company”
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By:
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[Company
Representative]
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[Title]
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“Participant”
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By:
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[Participant’s
Name]
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[Title]
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