<PAGE> 1
As filed with the Securities and Exchange Commission on November 1, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
AUTOBYTEL.COM INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 33-0711569
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
18872 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92612-1400
(Address of Principal Executive Offices) (Zip Code)
1999 EMPLOYEE AND ACQUISITION RELATED STOCK OPTION PLAN
(Full title of the plan)
ARIEL AMIR
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
18872 MACARTHUR BOULEVARD
IRVINE, CALIFORNIA 92612-1400
(Name and address of agent for service)
(949) 225-4500
(Telephone number, including area code, of agent for service)
COPIES TO:
THOMAS R. POLLOCK, ESQ.
BRIGITTE LIPPMANN, ESQ.
PAUL, HASTINGS, JANOFSKY & WALKER LLP
399 PARK AVENUE
NEW YORK, NEW YORK 10022
TELEPHONE: (212) 318-6000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
Proposed
Proposed Maximum
Amount To Be Maximum Offering Aggregate Amount of
Title of Securities To Be Registered Registered(1) Price Per Share(2) Offering Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001................ 1,500,000 $14.6875 $22,031,250 $6,125.00
=========================================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $0.001 per share (the
"Common Stock"), stated above consists of the aggregate number of shares
which may be sold upon the exercise of options which may hereafter be
granted under the 1999 Employee and Acquisition Related Stock Option Plan
(the "Plan"). The maximum number of shares which may be sold upon the
exercise of such options granted under the Plan are subject to adjustment
in accordance with certain anti-dilution and other provisions of the Plan.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement includes, in addition to the number of shares stated
above, an indeterminate number of shares which may be subject to grant or
otherwise issuable after the operation of any such anti-dilution and other
provisions.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933. The fee is
calculated on the basis of the average of the high and low sale prices per
share of Common Stock as quoted on the Nasdaq National Market on October
25, 1999 (within 5 business days prior to filing this Registration
Statement).
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<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following information filed with the Securities and Exchange Commission
(the "Commission") is incorporated herein by reference:
1. The Registrant's Form 8-A filed on March 5, 1999, pursuant to
Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. The Registrant's final prospectus filed pursuant to Rule
424(b)(3) on March 26, 1999, pursuant to the Securities Act of 1933, as
amended (the "Securities Act").
3. The description of the common stock contained in the Registrant's
final prospectus filed pursuant to Rule 424(b)(3) on March 26, 1999,
pursuant to the Securities Act.
4. The Registrant's Current Report on Form 8-K dated April 29, 1999
relating to its first quarter financial results.
5. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
6. The Registrant's Registration Statement on Form S-8 filed on May
6, 1999 pursuant to the Securities Act.
7. The Registrant's Current Report on Form 8-K dated July 29, 1999
relating to its second quarter financial results and its entering into a
definitive agreement to acquire W.G. Nichols Inc. and a related entity.
8. The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999.
9. The Registrant's Current Report on Form 8-K dated October 4, 1999
relating to the Registrant notifying W.G. Nichols Inc. that it had elected
not to proceed with the previously announced acquisition of W.G. Nichols
Inc. and a related entity.
10. The Registrant's Current Report on Form 8-K dated October 14,
1999 relating to the Registrant entering into a definitive agreement to
acquire A.I.N. Corporation.
11. The Registrant's Current Report on Form 8-K dated October 28,
1999 relating to its third quarter financial results.
In addition, all documents filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into this registration statement
and to be a part hereof from the date of filing of such documents with the
Commission. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this registration
statement.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable; the class of securities to be offered is registered under
Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of common stock registered under
this registration statement has been passed upon for Autobytel.com by Paul,
Hastings, Janofsky & Walker LLP. Attorneys in the firm of Paul, Hastings,
Janofsky & Walker LLP own an aggregate of approximately 3,300 shares of common
stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by current law.
Article IX of Autobytel.com's Amended and Restated Certificate of
Incorporation provides for the indemnification of directors and officers to the
fullest extent permissible under Delaware law.
Article VII of Autobytel.com's Bylaws provides for the indemnification of
officers and directors to the fullest extent permissible by the General
Corporation Law of the State of Delaware.
Autobytel.com has entered into agreements to indemnify its directors and
officers. These agreements, among other things, indemnify Autobytel.com's
directors and officers for expenses including attorney's fees, judgments, fines
and settlement amounts incurred by any such person in any action or proceeding
arising out of such person's services as an officer or director of
Autobytel.com.
Autobytel.com's directors and officers shall not be entitled to indemnity
under these agreements if a reviewing party appointed by the board of directors
determines that such person is not entitled to be indemnified thereunder under
applicable law. In addition, Autobytel.com's directors and officers may not be
indemnified for expenses reasonably incurred regarding any claim related to the
fact that such person was a director or officer of Autobytel.com:
1) if the expenses result from acts, omissions or transactions for which
such person is prohibited from receiving indemnification;
2) if the claims were initiated or brought voluntarily by one of
Autobytel.com's directors or officers and not by way of defense,
counterclaim or cross claim; or
3) if a claim instituted by one of Autobytel.com's directors or officers
or by Autobytel.com to enforce or interpret the indemnity agreement
was found to be frivolous or made in bad faith by a court having
jurisdiction over such matter.
To the extent indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling Autobytel.com
as discussed above, Autobytel.com has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is therefore unenforceable.
Autobytel.com has a director and officers' liability insurance policy
insuring its officeholders with respect to matters permitted by the Delaware
General Corporation Law. The policy is limited to liability of $20 million plus
legal fees.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE> 4
ITEM 8. EXHIBITS.
The exhibits filed as part of this registration statement are as follows:
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
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<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation of the
Registrant.(*)
3.2 Amended and Restated By-laws of the
Registrant.(*)
4.1 Form of Common Stock Certificate.(*)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP.
10.1 1999 Employee and Acquisition Related Stock Option Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page).
</TABLE>
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(*) Incorporated by reference to the Registrant's registration statement
on Form S-1, Registration No. 333-70621, originally filed with the
Securities and Exchange Commission on January 15, 1999, and declared
effective (as amended) on March 25, 1999.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
II-3
<PAGE> 5
provided, however, that paragraphs (A) (1) (i) and (A) (1) (ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on November 1, 1999.
autobytel.com inc.
(Registrant)
By: /s/ Mark W. Lorimer
------------------------------------
Mark W. Lorimer
Chief Executive Officer,
President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark W. Lorimer, Hoshi Printer and Ariel
Amir, with full power to act without the other, and each of them, as such
person's true and lawful attorney- or attorneys-in-fact and agent or agents,
with full power of substitution and resubstitution, for such person and in such
person's name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to the registration statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission and any other
regulatory authority, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or such person's substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Michael Fuchs Chairman of the Board and Director November 1, 1999
- ----------------------------------
MICHAEL FUCHS
/s/ Jeffrey H. Coats Director November 1, 1999
- ----------------------------------
JEFFREY H. COATS
/s/ Mark N. Kaplan Director November 1, 1999
- ----------------------------------
MARK N. KAPLAN
/s/ Kenneth J. Orton Director November 1, 1999
- ----------------------------------
KENNETH J. ORTON
</TABLE>
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<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert S. Grimes Executive Vice President and Director November 1, 1999
- ----------------------------------
ROBERT S. GRIMES
/s/ Mark W. Lorimer Chief Executive Officer, President and November 1, 1999
- ---------------------------------- Director (Principal Executive Officer)
MARK W. LORIMER
/s/ Hoshi Printer Senior Vice President and Chief Financial November 1, 1999
- ---------------------------------- Officer (Principal Financial Officer)
HOSHI PRINTER
/s/ Ann M. Delligatta Executive Vice President and Chief November 1, 1999
- ---------------------------------- Operating Officer
ANN M. DELLIGATTA
/s/ Amit Kothari Vice President and Controller (Principal November 1, 1999
- ---------------------------------- Accounting Officer)
AMIT KOTHARI
/s/ Peter Titz Director November 1, 1999
- ----------------------------------
PETER TITZ
/s/ Richard A. Post Director November 1, 1999
- ----------------------------------
RICHARD POST
</TABLE>
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIAL
EXHIBIT NO. DESCRIPTION PAGE NO.
----------- ----------- ----------
<S> <C> <C>
3.1 Amended and Restated Certificate of Incorporation of the
Registrant.(*)
3.2 Amended and Restated By-laws of the
Registrant.(*)
4.1 Form of Common Stock Certificate.(*)
5.1 Opinion of Paul, Hastings, Janofsky & Walker LLP.
10.1 1999 Employee and Acquisition Related Stock Option Plan.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Paul, Hastings, Janofsky & Walker LLP (included in
Exhibit 5.1).
24.1 Power of Attorney (included on the Signature Page).
</TABLE>
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(*) Incorporated by reference to the Registrant's registration statement
on Form S-1, Registration No. 333-70621, originally filed with the
Securities and Exchange Commission on January 15, 1999, and declared
effective (as amended) on March 25, 1999.
<PAGE> 1
EXHIBIT 5.1
Paul, Hastings, Janofsky & Walker LLP
399 Park Avenue
New York, New York 10022
(212) 318-6000
November 1, 1999
26600.80243
autobytel.com inc.
18872 MacArthur Boulevard
Irvine, California 92612-1400
Re: autobytel.com inc./Registration Statement on Form S-8
Ladies and Gentlemen:
We are furnishing this opinion as counsel to autobytel.com inc., a Delaware
corporation (the "Company"), in respect of the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by the Company on or about
November 1, 1999 with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, which Registration Statement covers the
registration by the Company of 1,500,000 shares (the "Shares") of the Company's
common stock, par value $0.001 per share, that may be sold upon the exercise of
stock options issued or to be issued to employees and/or individuals employed
by service providers to the Company under the Company's 1999 Employee and
Acquisition Related Stock Option Plan (the "Plan").
<PAGE> 2
In our capacity as counsel for the Company in connection with the matters
referred to above, we have examined the Amended and Restated Certificate of
Incorporation, the Amended and Restated Bylaws of the Company, the Plan,
originals or copies of records of corporate action of the Company as furnished
to us by the Company, certificates of public officials and of representatives of
the Company and other instruments and documents, as a basis for the opinions
hereinafter expressed.
Based upon our examination as aforesaid, we are of the opinion that the
Shares are duly authorized and, when purchased and paid for upon exercise of
options pursuant to the Plan and pursuant to the agreements which accompany each
grant under the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the references in the Registration Statement to our
Firm and to the inclusion of this opinion as Exhibit 5.1 to the Registration
Statement.
Very truly yours,
/s/ Paul, Hastings, Janofsky & Walker LLP
<PAGE> 1
EXHIBIT 10.1
autobytel.com inc.
1999 EMPLOYEE AND ACQUISITION RELATED STOCK OPTION PLAN
SECTION 1
DEFINITIONS
As used herein, the following terms have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
(a) "Acquired Company" means any entity in which the Company or a Parent
Corporation or Subsidiary Corporation of the Company acquires at least
50 percent of the equity interest entitled to vote for the election of
directors or equivalent governing body.
(b) "Acquired Employee" means an individual who is employed (within the
meaning of Section 3401 of the Code and the regulations thereunder) by
an Acquired Company.
(c) "Administrator" means the Board or the Committee; whichever shall be
administering the Plan from time to time in the discretion of the
Board, as described in Section 3 of this Plan.
(d) "Board" means the Board of Directors of the Company.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Committee" means the committee appointed by the Board in accordance
with Section 3 of this Plan.
(g) "Company" means autobytel.com inc., a Delaware corporation.
(h) "Employee" means an individual who is employed (within the meaning of
Section 3401 of the Code and the regulations thereunder) by the
Company or any future Parent Corporation or Subsidiary Corporation of
the Company.
(i) "Employer Company" means a company, whether (i) the Company or a
Parent Corporation or Subsidiary Corporation of the Company, which
<PAGE> 2
employs the Employee; (ii) the Acquired Company, which employs the
Acquired Employee; or (iii) the Company or a Parent Corporation or
Subsidiary Corporation of the Company or an Acquired Company, to which
the Service Provider is providing services or with which Service
Provider engages in business.
(j) "Fair Market Value of Shares" shall mean (i) if the Shares are not
publicly traded on the day in question, the fair market value of the
Shares on the day in question as determined and set forth in writing
by the Administrator (which, in making such determination, shall make
a good faith effort to establish the true fair market value of the
Shares as of such date using such methods as it deems appropriate,
including independent appraisals, and taking into consideration any
requirements set forth in the Code or the regulations thereunder), or
(ii) if the Shares are publicly traded on the day in question, the
closing price of the Shares on the day in question. The closing price
shall be the average of the highest and lowest quoted selling prices
on the New York Stock Exchange or, if the Shares are not listed or
admitted to trading on such Exchange, on the principal national
securities exchange on which the Shares are listed or admitted to
trading or, if not listed or admitted to trading on any national
securities exchange, as reported by the Nasdaq Stock Market's National
Market on the day in question, or if the Shares are not listed or
admitted to trading on any national securities exchange or reported by
the Nasdaq Stock Market's National Market, the closing price of the
Shares shall be the average of the highest and lowest quoted selling
prices as reported by The Wall Street Journal for the over-the-counter
market on the day in question.
(k) "Incentive Stock Option" means an Option for Shares which is intended
to be, designated in writing as, and qualifies as an Incentive Stock
Option within the meaning of Section 422 of the Code.
(l) "Nonstatutory Stock Option" means an Option which is not an Incentive
Stock Option and which is designated as a Nonstatutory Stock Option by
the Administrator.
(m) "Option" means an option to purchase a Share pursuant to the
provisions of this Plan.
(n) "Optionee" means an Employee, Acquired Employee or Service Provider to
whom an Option has been granted hereunder.
(o) "Option Price" means the price per share of the Shares subject to each
Option as provided in Section 6.3 below.
(p) "Option Term" means the maximum period of time during which an Option
may be exercised as set forth in Section 6.3 below.
2
<PAGE> 3
(q) "Parent Corporation" shall have the meaning assigned to that term
under Section 424 of the Code.
(r) "Plan" means the autobytel.com inc. 1999 Employee and Acquisition
Related Stock Option Plan, the terms of which are set forth herein.
(s) "Service Employee" means an individual who is employed (within the
meaning of Section 3401 of the Code and the regulations thereunder) by
an entity with which the Company or any future Parent Corporation or
Subsidiary Corporation of the Company or any Acquired Company engages
in business.
(t) "Service Provider" means any individual who (i) is a Service Employee
or (ii) follows an independent trade, business or profession in which
he/she provides his/her services to the Company or any future Parent
Corporation or Subsidiary Corporation of the Company or any Acquired
Company and is not a Service Employee, including, without limitation,
consultants, independent contractors and suppliers to the Company.
(u) "Share" or "Shares" means Common Stock of the Company, par value $.001
per share, or, in the event that the outstanding Shares are hereafter
changed into or exchanged for different shares or securities of the
Company or some other corporation or other entity, such other shares
or securities.
(v) "Special Committee" means the committee of one or more members of the
Board that may be delegated the authority to grant options to eligible
persons not described in Section 16 of the Securities Exchange Act of
1934.
(w) "Stock Option Agreement" means the agreement described in Section 6.1
between the Company and the Optionee under which the Optionee may
purchase Shares hereunder.
(x) "Subsidiary Corporation" shall have the meaning assigned to that term
under Section 424 of the Code.
(y) "Total and Permanent Disability," unless otherwise specified in the
applicable Stock Option Agreement, means the inability of an Employee,
Acquired Employee or Service Provider to engage in any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not
less than twelve months.
3
<PAGE> 4
SECTION 2
THE PLAN
2.1. Name. This Plan shall be known as "autobytel.com inc. 1999 Employee
and Acquisition Related Stock Option Plan."
2.2. Purpose. The purpose of this Plan is to advance the interests of the
Company and its stockholders by affording Employees, Acquired Employees and
Service Providers of the Employer Company an opportunity to acquire or increase
their proprietary interest in the Company by the grant to such individuals of
Options under the terms set forth herein.
2.3. Intention.
(a) It is intended that Options (if any) issued as Incentive Stock Options
under this Plan will qualify as incentive stock options under Section 422 of the
Code and the terms of this Plan shall be interpreted in accordance with such
intention.
(b) It is intended that all Options issued to Service Providers shall be
Nonstatutory Stock Options and that any Options issued to Employees and Acquired
Employees may be Nonstatutory Stock Options.
SECTION 3
ADMINISTRATION
3.1. Administration. This Plan shall be administered, in the discretion of
the Board from time to time, by the Board or by the Committee acting as the
Administrator. The Committee shall be appointed by the Board, in a manner
consistent with the Company's By-laws, and shall consist of two (2) or more
members, each of whom is an outside director (within the meaning of Code Section
162(m) and the Treasury Regulations thereunder) as well as a non-employee
director (within the meaning of Rule 16(b)-3 under the Securities Exchange Act
of 1934, as amended). The Board may from time to time remove members from, or
add members to, the Committee. The Board shall fill vacancies on the Committee,
however caused. The Board may appoint one (1) of the members of the Committee as
Chairman. The Administrator shall hold meetings at such times and places as it
may determine. Acts of a majority of the Administrator at which a quorum is
present, or acts reduced to or approved in writing by the unanimous consent of
the members of the Administrator, shall be the valid acts of the Administrator.
Additionally, and notwithstanding anything to the contrary contained in this
Plan, the Board or Committee may delegate to a committee of one or more members
of the Board the authority to grant options and to specify the terms and
conditions thereof
4
<PAGE> 5
to certain eligible persons who are not subject to the requirements of Section
16 of the Securities Exchange Act of 1934, as amended, in accordance with
guidelines approved by the Board or Committee.
3.2. Duties. The Administrator (or the Special Committee) shall from time
to time at its discretion select the Employees, Acquired Employees and Service
Providers who are to be granted Options, determine the number of Shares to be
subject to Options to be granted to each Optionee and designate such Options as
Incentive Stock Options or Nonstatutory Stock Options. The interpretation and
construction by the Administrator of any provisions of this Plan or of any
Option granted thereunder shall be final. No member of the Administrator shall
be liable for any action or determination made in good faith with respect to
this Plan or any Option granted hereunder.
SECTION 4
PARTICIPATION
4.1. Eligibility. The Optionees shall be such persons (collectively,
"Participants"; individually a "Participant") as the Administrator (or the
Special Committee) may select from among the following classes of persons,
subject to the terms and conditions of Section 4.2 below:
(a) Employees of the Company;
(b) Employees of the Company's Parent Corporations or Subsidiary
Corporations;
(c) Acquired Employees of an Acquired Company; and
(d) Service Providers of the Company, any Parent Corporation or
Subsidiary Corporation and any Acquired Company.
4.2. Ten-Percent Stockholders. A Participant who beneficially owns more
than ten percent (10%) of the total combined voting power of all classes of
outstanding stock of the Company, as determined under Sections 422 and 424 of
the Code, shall not be eligible to receive an Incentive Stock Option unless (i)
the Option Price of the Shares subject to such Option is at least one hundred
ten percent (110%) of the Fair Market Value of such Shares on the date of grant
and (ii) such Option by its terms is not exercisable after the expiration of
five (5) years from the date of grant.
5
<PAGE> 6
4.3. Stock Ownership. For purposes of Section 4.2 above, in determining
stock ownership, a Participant's beneficial ownership of any class of
outstanding stock of the Company shall be determined as provided in Rule
16a-1(a) of the Securities and Exchange Commission adopted under the Exchange
Act, and in any event (i) such Participant shall be considered as owning the
stock owned, directly or indirectly, by or for his or her brothers and sisters,
spouse, ancestors and lineal descendants; (ii) stock owned, directly or
indirectly, by or for a corporation, partnership, estate or trust shall be
considered as being owned proportionately by or for its stockholders, partners
or beneficiaries; and (iii) stock with respect to which such Participant holds
an Option shall not be counted.
4.4. Outstanding Stock. For purposes of Section 4.2 above, "outstanding
stock" shall include all stock actually issued and outstanding immediately after
the grant of the Option to the Optionee. "Outstanding stock" shall not include
shares authorized for issue under outstanding Options held by the Optionee or by
any other person.
SECTION 5
SHARES SUBJECT TO PLAN
5.1. Shares Available for Options. Subject to adjustment pursuant to the
provisions of Section 5.2 hereof, the total number of Shares, which may be
issued upon the exercise of all Options, shall not exceed 1,500,000 Shares. Such
Shares may be either authorized and unissued Shares or issued Shares that have
been reacquired by the Company (pursuant to Section 6.6(d) hereof or otherwise).
If any Option shall expire or terminate for any reason without having been
exercised in full, new Options may be granted covering Shares originally set
aside for the unexercised portion of such expired or terminated Option.
5.2. Adjustments.
(a) Stock Splits and Dividends. Subject to any required action by the
Board, the number of Shares covered by this Plan as provided in Section 5.1
hereof, the number of Shares covered by each outstanding Option and the Option
Price thereof shall be proportionately adjusted for any increase or decrease in
the number of issued Shares resulting from a recapitalization, reclassification,
subdivision or consolidation of Shares or the payment of a stock dividend (but
only if paid in Shares), a stock split or any other increase or decrease in the
number of issued Shares effected without receipt of consideration by the
Company.
(b) Mergers. Subject to any required action by the Board and/or
stockholders, if the Company shall merge with another corporation and the
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Company is the surviving corporation in such merger and under the terms of such
merger the Shares outstanding immediately prior to the merger remain outstanding
and unchanged, each outstanding Option shall continue to apply to the Shares
subject thereto and shall also pertain and apply to any additional securities
and other property, if any, to which a holder of the number of Shares subject to
the Option would have been entitled as a result of the merger.
(c) Adjustment Determination. To the extent that the foregoing
adjustments relate to securities of the Company, such adjustments shall be made
by the Administrator, whose determination shall be conclusive and binding on all
persons. In computing any adjustment under this Section 5.2, any fractional
Share which might otherwise become subject to an Option shall be eliminated.
(d) Special Dividends. Subject to any required action by the Board,
the Administrator shall be entitled to determine whether any adjustment shall be
made with respect to the number of Shares covered by this Plan as provided in
Section 5.1 hereof, the number of Shares covered by each outstanding Option and
the Option Price thereof if the Company pays a special or extraordinary
dividend.
SECTION 6
OPTIONS
6.1. Option Grant and Agreement.
(a) The Administrator may from time to time, subject to the terms of
this Plan, grant to any Participant one or more Options but in no event may any
such Participant receive Options under this Plan on more than 700,000 Shares
during any one calendar year; provided, however, that the Special Committee may
from time to time grant options to eligible persons not described in Section 16
of the Securities and Exchange Act of 1934. Each Option grant shall be evidenced
by a written Stock Option Agreement, dated as of the date of grant and executed
by the Company and the Optionee, which Stock Option Agreement shall set forth
the number of Options granted, whether the Options are Incentive Stock Options
or Nonstatutory Stock Options, the Option Price, the Option Term and such other
terms and conditions as may be determined appropriate by the Administrator (or
the Special Committee), provided that such terms and conditions are not
inconsistent with this Plan. The Stock Option Agreement shall incorporate this
Plan by reference and provide that any inconsistencies or disputes shall be
resolved in favor of this Plan language.
(b) Grants under this Plan shall be made by the Administrator or
Special Committee selectively among the Participants and the terms and
provisions of such grants and the agreements evidencing the same (including,
without limitation, the form, the amount, the timing, the exercisability and the
vesting schedule of such grants) need not be uniform, whether or not the
Optionees are similarly situated.
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6.2 Conditions with Respect to Incentive Stock Options. Each Incentive
Stock Option shall be subject to the following conditions, which conditions
shall be stated within the applicable Stock Option Agreement. Any Incentive
Stock Option which does not comply with these provisions shall not be considered
an Incentive Stock Option and instead shall be considered a Nonstatutory Option
issued under the Plan:
(a) To the extent that the aggregate Fair Market Value of Shares
(determined as of the time an Option is granted) exercisable for the first time
by an Optionee during any calendar year under such Incentive Stock Option and
any other Incentive Stock Option issued by the Company or any Subsidiary
Corporation or Parent Corporation exceeds $100,000, such excess Incentive Stock
Options shall be deemed Nonstatutory Stock Options.
(b) No Incentive Stock Option may be assigned or transferred by an
Optionee other than by will or by the laws of descent and distribution. During
the lifetime of an Incentive Stock Optionee, the Option may be exercisable only
by the Optionee. Transfer of an Incentive Stock Option by will or by the laws of
descent and distribution shall not be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and an
authenticated copy of the will or such other evidence as the Administrator may
deem necessary to establish the validity of the transfer and the acceptance by
the transferee of the terms and conditions of such Incentive Stock Option.
6.3. Option Price. The Option Price shall be determined by the
Administrator (or the Special Committee), subject to any limitations imposed by
this Plan and, in any event, shall not be less than the Fair Market Value on the
date of grant in the case of Incentive Stock Options, and shall not be less than
eighty-five percent (85%) of the Fair Market Value in the case of Nonstatutory
Stock Options. The Option Price for Incentive Stock Options shall not be less
than the Fair Market Value of Shares on the date such Incentive Stock Options
are granted and, in the case of Incentive Stock Options granted to an Optionee
described in Section 4.2 hereof, the Option Price shall not be less than one
hundred ten percent (110%) of the Fair Market Value of Shares on the date of
grant.
6.4. Option Term. The Option Term shall be determined by the Administrator
(or the Special Committee) at the time of grant, subject to any limitations
imposed by this Plan, but in any event shall not be more than ten years from the
date such Option is granted, and, in the case of an Incentive Stock Option
granted to an Optionee described in Section 4.2 hereof, shall not be more than
five years from the date such Option is granted. Options may be subject to
earlier termination as provided in this Plan.
6.5 Limitations on Exercise of Options. Notwithstanding anything contained
in this Plan to the contrary, Options shall be exercisable in full or in such
equal or unequal instalments as the Administrator shall determine; provided that
if an Optionee
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does not purchase all of the Shares which the Optionee is entitled to purchase
on a certain date or within an established instalment period, the Optionee's
right to purchase any unpurchased Shares shall continue during the Option Term
(taking into account any early termination of such Option Term which may be
provided for under the Plan); provided, further that an Optionee who is not an
officer, director or consultant shall have the right to exercise at least 20% of
the options granted per year over five (5) years from the grant date.
6.6. Method of Exercising Options; Withholding Tax.
(a) Options shall be exercised by a written notice, delivered to the
Company at its principal office located at 18872 MacArthur Blvd., Second Floor,
Irvine, California 92612-1400, Attn: Legal Department or such other address
that may be designated by the Company, specifying the number of Shares to be
purchased and tendering payment in full for such Shares. Payment may be tendered
in cash or by certified, bank cashier's or teller's check or by Shares (valued
at Fair Market Value as of the date of tender), or some combination of the
foregoing or such other form of consideration which has been approved by the
Board or the Committee, including any approved cashless exercise mechanism or a
promissory note given by the Optionee. The right to deliver in full or partial
payment of such Option Price any consideration other than cash shall be limited
to such frequency as the Board or the Committee shall determine in its absolute
discretion from time to time. In the event all or part of the Option Price is
paid in Shares, any excess of the value of such Shares over the Option Price
will be returned to the Optionee as follows: (i) any whole Share remaining in
excess of the Option Price will be returned in kind, and may be represented by
one or more share certificates; and (ii) any partial Shares remaining in excess
of the Option Price will be returned in cash.
(b) In the event an Optionee pays all or part of the Option Price in
Shares, the Administrator shall be entitled as it deems appropriate to award to
the Optionee additional Options equal to the number of Shares tendered to
exercise, provided such Option has an Option Price equal to Fair Market Value.
(c) In the event the Company determines that it is required to
withhold income tax as a result of the exercise of an Option, as a condition to
the exercise thereof, the Optionee may be required to make arrangements
satisfactory to the Company to enable it to satisfy such withholding
requirements. Payment of such withholding requirements may be made, in the
discretion of the Administrator, (i) in cash, (ii) by delivery of Shares
registered in the name of the Optionee having a Fair Market Value at the time of
exercise equal to the amount to be withheld, (iii) by the Company retaining or
not issuing such number of Shares subject to the Option as have a Fair Market
Value at the time of exercising equal to the amount to be withheld or (iv) any
combination of (i), (ii) and (iii) above.
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(d) The Administrator shall be entitled as it deems appropriate to
make available for issuance under this Plan Shares tendered by an Optionee as
payment of the Option Price or Shares used to satisfy the Company's withholding
requirements.
6.7. Rights in the Event of Sale, Merger or Other Reorganization. Except as
expressly provided in Section 5.2 and this Section 6.7, the Optionee shall have
no rights by reason of any subdivision or consolidation of shares of stock of
any class, the payment of any stock dividend or any other increase or decrease
in the number of shares of stock of any class or by reason of any dissolution,
liquidation, merger or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the number or
Option Price of Shares subject to an Option. The grant of an Option pursuant to
this Plan shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate, sell or
transfer all or any part of its business or assets. In any such event (other
than a merger in which the Company is the surviving corporation as described in
Section 5.2(b) and under the terms of which the shares of Common Stock
outstanding immediately prior to the merger remain outstanding and unchanged):
(a) Upon (i) a sale of all or substantially all of the assets of the
Company, (ii) a merger or consolidation in which the Company is not the
surviving corporation or (iii) a reverse merger in which the Company is the
surviving corporation but the shares of Common Stock outstanding immediately
preceding the merger are converted by virtue of the merger into other property,
whether in the form of securities, cash or otherwise, unless otherwise provided
in the Stock Option Agreement for any given Option, all rights of the Optionee
with respect to the unexercised portion of any Option shall become immediately
vested and may be exercised immediately, except to the extent that any agreement
or undertaking of any party to any such merger, consolidation or sale or
transfer of assets, shall make specific provision for the assumption or
continuation of the obligations of the Company with respect to this Plan and the
rights of the Optionees with respect to Options granted thereunder or substitute
similar Options for those outstanding under the Plan.
(b) Unless otherwise provided in the Stock Option Agreement for any
given Option, upon any such liquidation or dissolution, all rights of the
Optionee with respect to the unexercised portion of any Option shall wholly and
completely terminate and all Options shall be canceled at the time of any such
liquidation or dissolution, except to the extent that any plan pursuant to which
such liquidation or dissolution is effected, shall make specific provision with
respect to this Plan and the rights of Optionees with respect to Options granted
thereunder.
Notwithstanding the foregoing, the holder of any such Option or right
theretofore granted and still outstanding shall have the right immediately prior
to the effective date of such
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merger, consolidation, sale or transfer of assets, liquidation or dissolution to
exercise such Option in whole or in part without regard to any installment
provision that may have been made part of the terms and conditions of such
Option or right; provided, that any conditions precedent to such exercise set
forth in the Stock Option Agreement other than the passage of time, have
occurred or been waived.
6.8. Rights in the Event of Death. Unless otherwise provided in the Stock
Option Agreement for any given Option, if an Optionee's employment or business
relationship with or services to the Employer Company are terminated on account
of death, the person or persons who shall have acquired the right, by will or
the laws of descent and distribution, to exercise the Optionee's Options shall
continue to have (subject to Section 6.4 above) the right, for a period of at
least six (6) months from the date of termination by death or such longer period
(if any) as may be specified in the applicable Stock Option Agreement, to
exercise any Options which such Optionee would have been entitled to exercise on
the Optionee's death or during the first year thereafter. At the expiration of
such period any such Options which remain unexercised shall expire. Unless the
Administrator provides otherwise in the Stock Option Agreement, any Options that
could not have been exercised by an Optionee as of the Optionee's death may not
be exercised.
6.9. Rights in the Event of Total and Permanent Disability. Unless
otherwise provided in the Stock Option Agreement for any given Option, if an
Optionee's employment or business relationship with or services to the Employer
Company are terminated on account of Total and Permanent Disability, the
Optionee shall have (subject to Section 6.4 above) the right, for a period of at
least six (6) months from the date of termination by disability or such longer
period (if any) as may be specified in the applicable Stock Option Agreement, to
exercise any Options which such Optionee would have been entitled to exercise on
the date of such Optionee's Total and Permanent Disability. At the expiration of
such period any such Options which remain unexercised shall expire. Unless the
Administrator provides otherwise in the Stock Option Agreement, any Options that
could not have been exercised by an Optionee on the date of such Optionee's
Total and Permanent Disability may not be exercised.
6.10. Rights in the Event of Termination of Employment or Service. Unless
otherwise provided in the Stock Option Agreement for any given Option, in the
event that an Optionee's employment or business relationship with or service to
the Employer Company terminates, other than by reason of death or Total and
Permanent Disability and other than due to termination for "Cause," the Optionee
shall have (subject to Section 6.4 above) the right, for a period of at least
thirty (30) days from the date of such termination or such longer period (if
any) as may be specified in the applicable Stock Option Agreement, to exercise
any Options which such Optionee would have been entitled to exercise on the date
of such Optionee's termination. At the expiration of such period any such
Options which remain unexercised shall expire. Unless the Administrator provides
otherwise in the Stock Option Agreement, any Options that could not have been
exercised by an Optionee on the date of such Optionee's termination of service
or business relationship may not be exercised. Notwithstanding the foregoing, if
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the employment or services of or business relationship with an Optionee are
terminated for "Cause" by the Employer Company, the Company may notify the
Optionee that any Options not exercised prior to the termination are canceled.
For purposes hereof and unless the Administrator provides otherwise in the Stock
Option Agreement, a termination of service or business relationship for "Cause"
shall include dismissal as a result of (1) Optionee's conviction of any crime or
offense involving money or other property of the Company or its subsidiaries or
which constitutes a felony in the jurisdiction involved; (2) Optionee's gross
negligence, gross incompetence or wilful gross misconduct in the performance of
his or her duties; or (3) Optionee's wilful failure or refusal to perform his or
her duties.
SECTION 7
SHARES ISSUED PURSUANT TO AN OPTION
7.1. Issuance of Certificates. The Company shall not be required to issue
or deliver any certificate for Shares purchased upon the exercise of any Option,
or any portion thereof, prior to fulfilment of all of the following applicable
conditions:
(a) The admission of such Shares to listing on all stock exchanges or
markets on which the Shares are then listed to the extent such admission is
necessary;
(b) The completion of any registration or other qualification of such
Shares under any federal or state securities laws or under the rulings or
regulations of the Securities and Exchange Commission or any other governmental
regulatory body, which the Board shall in its sole discretion deem necessary or
advisable, or the determination by the Board in its sole discretion that no such
registration or qualification is required;
(c) The obtaining of any approval or other clearance from any federal
or state governmental agency which the Board shall, in its sole discretion,
determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time following the
exercise of the Option as the Board or Committee from time to time may establish
for reasons of administrative convenience.
7.2. Compliance with Securities and Other Laws. In no event shall the
Company be required to sell, issue or deliver Shares pursuant to Options if in
the opinion of the Company the issuance thereof would constitute a violation by
either the Optionee or the Company of any provision of any law or regulation of
any governmental authority or any securities exchange. As a condition of any
sale or issuance of Shares pursuant to Options, the Company may place legends on
the Shares, issue stop-transfer orders and require such agreements or
undertakings from the Optionee as the Company may deem necessary or advisable to
assure compliance with any such law or regulation, including if
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the Company or its counsel deems it appropriate, representations from the
Optionee that the Optionee is acquiring the Shares solely for investment and not
with a view to distribution and that no distribution of the Shares acquired by
the Optionee will be made unless registered pursuant to applicable federal and
state securities laws or unless, in the opinion of counsel to the Company, such
registration is unnecessary.
7.3. Requirements in the Event of a Disposition of Shares. Any Optionee, or
person representing such Optionee, who sells, exchanges, transfers or otherwise
disposes of any Shares acquired pursuant to the exercise of an Incentive Stock
Option within two (2) years following the grant of such Incentive Stock Option
or within one (1) year following the actual transfer of such Shares to the
Optionee, shall be obligated to notify the Company in writing of the date of
disposition, the number of Shares so disposed and the amount of consideration
received as a result of such disposition. The Company shall have the right to
take whatever reasonable action it deems appropriate against an Optionee,
including early termination of any Options which remain outstanding, in order to
recover any additional taxes the Company incurs as a result of such Optionee's
failure to so notify the Company.
7.4. Legend. All certificates for Shares purchased upon the exercise of an
Incentive Stock Option shall bear a legend indicating that such Shares were
issued pursuant to an Incentive Stock Option grant.
SECTION 8
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
8.1. Board or Committee Termination, Amendment and Modification of Plan.
The Board may at any time amend or modify the Plan.
8.2. Plan Termination. Subject to Section 9.8 below, unless terminated
earlier as provided in Section 8.1, this Plan shall terminate ten (10) years
from the date it is adopted by the Board and no Option shall be granted under
this Plan after such expiration date. Termination of this Plan shall not alter
or impair any of the rights or obligations under any Option theretofore granted
under this Plan unless the Optionee shall so consent.
8.3. Effect of Termination, Amendment or Modification of Plan.
Notwithstanding Sections 8.1 and 8.2, no termination, amendment or modification
of this Plan shall in any manner affect any Option theretofore granted under
this Plan without the written consent of the Optionee or a person who shall have
acquired the right to exercise the Option by will or the laws of descent and
distribution.
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SECTION 9
MISCELLANEOUS
9.1. Non-assignability of Options. No Option shall be assignable or
transferable by the Optionee except by will or by the laws of descent and
distribution. During the lifetime of the Optionee, the Option shall be
exercisable only by the Optionee.
9.2. Leaves of Absence. Unless the Administrator determines otherwise, the
vesting of an Option granted under this Plan shall not be tolled during any
unpaid leave of absence taken by an Optionee.
9.3. No Rights to Employment or Provide Service. Nothing in this Plan or in
any Option granted hereunder or in any Stock Option Agreement relating thereto
shall confer upon any individual the right to continue employment with or to
provide service to the Employer Company.
9.4. Purchase Offer. The Administrator may offer to purchase, for cash or
Shares, any Option granted hereunder and such offer to purchase any Option shall
be on such terms and conditions as the Administrator establishes and
communicates to the Optionee at the time the offer is extended to the Optionee.
9.5. Binding Effect. This Plan shall be binding upon the successors and
assigns of the Company.
9.6. Singular, Plural, Gender. Whenever used herein, except where the
context clearly indicates to the contrary, nouns in the singular shall include
the plural, and the masculine pronoun shall include the feminine gender.
9.7. Headings. Headings of the Sections hereof are inserted for convenience
and reference and constitute no part of this Plan.
9.8. Effective Date; Ratification by Stockholders. This Plan shall become
effective upon its adoption by the Board but is subject to the ratification and
approval by the affirmative vote of the holders of a majority of the Company's
outstanding shares of capital stock within 12 months following such adoption. If
this Plan is not so approved by the stockholders then any Options issued under
this Plan shall be Nonstatutory Stock Options.
9.9. Rights as Stockholder. An Optionee or transferee of an Option shall
have no rights as a stockholder with respect to any Shares subject to such
Option prior to the purchase of such Shares by exercise of such Option as
provided herein.
9.10. Applicable Law. This Plan and the Options granted hereunder shall be
interpreted, administered and otherwise subject to the laws of the State of
California, without giving effect to the principles of conflict of laws thereof.
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9.11. Reports. The Company will comply with all applicable reporting
requirements applicable to Incentive Stock Options under the Code.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference of our reports dated March 25, 1999 included in autobytel.com inc.'s
Post Effective Amendment No. 1 to the registration statement on Form S-1 and to
all references to our Firm in this registration statement on Form S-8.
/s/ ARTHUR ANDERSEN LLP
October 29, 1999
Los Angeles, California
