Attached files
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT
REPORT
Pursuant to
Section 13 or 15(d) of
The Securities
Exchange Act of 1934
Date of Report
(Date of earliest event reported) October 19,
2016
Autobytel Inc.
(Exact name of
registrant as specified in its charter)
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Delaware
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001-34761
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33-0711569
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(State or other
jurisdiction of incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.)
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18872 MacArthur
Boulevard, Suite 200, Irvine, California
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92612-1400
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(Address of
principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code (949)
225-4500
Not
Applicable
(Former name or
former address, if changed since last report.)
Check the appropriate box below if
the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following
provisions:
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☐
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Written communications
pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting material pursuant
to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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☐
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
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Item 1.01
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Entry Into a
Material Definitive Agreement.
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Second Amended and Restated Stockholder
Agreement
On September 21, 2016 (the
“Grant
Date”), the
Compensation Committee of the Board of Directors (the
“Board”) of Autobytel Inc., a Delaware
corporation (“Autobytel”
or “Company”),
granted stock options to purchase 65,000 shares of Autobytel common
stock, $0.001 par value (“Common
Stock”), to Mr.
Matías de Tezanos, a member of the Board and the
Company’s Chief Strategy Officer, and stock options to
purchase 65,000 shares of Common Stock to Mr. José Vargas, a
member of the Board and the Company’s Chief Revenue Officer,
in connection with each of Messrs. de Tezanos’ and
Vargas’ service as officers of the Company. The
exercise price for the foregoing stock options is $16.82, which was
the closing price for the Common Stock on the Grant Date as
reported on The Nasdaq Capital Market. Thirty-three and one-third
percent (33 1/3%) of the options shall vest on the first
anniversary of the Grant Date and one thirty-sixth
(1/36th)
will vest ratably thereafter for the following twenty-four (24)
months ending on the third anniversary of the Grant Date. The
vesting of these stock options: (i) may accelerate upon a change in
control of Autobytel in accordance with the Autobytel Inc. Amended and Restated 2014
Equity Incentive Plan (“Plan”) and the applicable stock
option award agreements; and (ii) will accelerate in the event the
optionee’s service as an officer of the Company is terminated
without cause by the Company or for good reason by the officer (as
such terms are defined in the applicable stock option award
agreements). The foregoing stock
options were granted pursuant to the Plan and were contingent upon
the Board authorizing, and Messrs. de Tezanos and Vargas each
becoming a party to and executing, a Second Amended and Restated
Stockholder Agreement, which agreement was authorized by the Board
and was executed and became effective as of October 19, 2016 (the
“Stockholder
Agreement”).
Additionally,
the Board authorized Mr. de Tezanos and Mr. Vargas, each
individually, to purchase up to 100,000 shares of Common Stock in
open market transactions; provided that any such purchases comply
with the terms of the Stockholder Agreement, Autobytel’s
Securities Trading Policy, and applicable law, rules and
regulations.
The foregoing
descriptions of the Stockholder
Agreement and stock option
grants are not complete and are qualified in their
entirety by reference to the Stockholder Agreement, Stock Option
Award Agreement (Non-Qualified Stock Option), effective as of
September 21, 2016, by and between Autobytel Inc. and Mr. de
Tezanos, and the Employee Stock Option Award Agreement
(Non-Qualified Stock Option), effective as of September 21, 2016,
by and between Autobytel Inc. and Mr. Vargas, copies of which are
filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively, to
this Current Report on Form 8-K.
Tax Benefit Preservation Plan Exemption
In connection with the execution of the
Stockholder Agreement, the Board exercised its discretionary
authority under the Company’s Tax Benefit Preservation Plan
(“NOL
Plan”) to deem the
restricted stockholder parties to the Stockholder Agreement not to
be an “Acquiring
Person” (as defined
in the NOL Plan) and to grant an exemption under the NOL Plan to
permit the foregoing stock option grants to, and open market
purchase transactions by, Messrs. de Tezanos and Vargas, subject to
and in reliance upon, the restricted stockholder parties entering
into and remaining in compliance with the terms and conditions set
forth in the Stockholder Agreement.
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The foregoing description of the NOL Plan
does not purport to be complete and is qualified in its entirety by
reference to the Tax Benefit Preservation Plan dated as of May 26,
2010 between Autobytel Inc. and Computershare Trust Company, N.A.,
as rights agent, together with the following exhibits thereto:
Exhibit A – Form of Right Certificate; and Exhibit B –
Summary of Rights to Purchase Shares of Preferred Stock of
Autobytel Inc., which is incorporated herein by reference to
Exhibit 4.1 to the Current Report on Form 8-K filed with the
Securities and Exchange Commission (“SEC”) on June 2, 2010 (SEC File No.
000-22239), as amended by Amendment No. 1 to Tax Benefit
Preservation Plan, dated as of April 14, 2014, between Autobytel
Inc. and Computershare Trust Company, N.A., as rights agent, which
is incorporated herein by reference to Exhibit 4.1 to the Current
Report on Form 8-K filed with the SEC on April 16, 2014 (SEC File
No. 001-34761), together with the Certificate of Adjustment Under
Section 11(m) of the Tax Benefit Preservation Plan, which is
incorporated herein by reference to Exhibit 4.3 to the Quarterly
Report on Form 10-Q for the quarterly period ended September 30,
2012 filed with the SEC on November 8, 2012 (SEC File No.
001-34761).
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Item 9.01
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Financial
Statements and Exhibits.
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(d)
Exhibits
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10.1
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Second Amended and Restated
Stockholder Agreement, made as of October 19, 2016, by and among
Autobytel Inc. and the parties set forth on the signature pages
thereto
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10.2
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Stock Option Award Agreement
(Non-Qualified Stock Option), effective as of September 21, 2016,
by and between Autobytel Inc. and Matías de
Tezanos
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10.3
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Employee Stock Option Award
Agreement (Non-Qualified Stock Option), effective as of September
21, 2016, by and between Autobytel Inc. and José
Vargas
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10.4
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Tax Benefit Preservation Plan dated
as of May 26, 2010 between Autobytel Inc. and Computershare Trust
Company, N.A., as rights agent, together with the following
exhibits thereto: Exhibit A – Form of Right Certificate; and
Exhibit B – Summary of Rights to Purchase Shares of Preferred
Stock of Autobytel Inc., which is incorporated herein by reference
to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC
on June 2, 2010 (SEC File No. 000-22239), as amended by Amendment
No. 1 to Tax Benefit Preservation Plan, dated as of April 14, 2014,
between Autobytel Inc. and Computershare Trust Company, N.A., as
rights agent, which is incorporated herein by reference to Exhibit
4.1 to the Current Report on Form 8-K filed with the SEC on April
16, 2014 (SEC File No. 001-34761), together with the Certificate of
Adjustment Under Section 11(m) of the Tax Benefit Preservation
Plan, which is incorporated herein by reference to Exhibit 4.3 to
the Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2012 filed with the SEC on November 8, 2012 (SEC File
No. 001-34761)
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SIGNATURES
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the registrant has
duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date: October 21,
2016
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AUTOBYTEL INC.
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By:
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/s/ Glenn E.
Fuller
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Glenn E. Fuller, Executive Vice
President,
Chief Legal and Administrative
Officer and Secretary
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INDEX OF EXHIBITS
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Exhibit
No.
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Description of
Document
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10.1
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Second Amended and Restated
Stockholder Agreement, made as of October 19, 2016, by and among
Autobytel Inc. and the parties set forth on the signature pages
thereto
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10.2
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Stock Option Award Agreement
(Non-Qualified Stock Option), effective as of September 21, 2016,
by and between Autobytel Inc. and Matías de
Tezanos
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10.3
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Employee Stock Option Award
Agreement (Non-Qualified Stock Option), effective as of September
21, 2016, by and between Autobytel Inc. and José
Vargas
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10.4
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Tax Benefit Preservation Plan dated
as of May 26, 2010 between Autobytel Inc. and Computershare Trust
Company, N.A., as rights agent, together with the following
exhibits thereto: Exhibit A – Form of Right Certificate; and
Exhibit B – Summary of Rights to Purchase Shares of Preferred
Stock of Autobytel Inc., which is incorporated herein by reference
to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC
on June 2, 2010 (SEC File No. 000-22239), as amended by Amendment
No. 1 to Tax Benefit Preservation Plan, dated as of April 14, 2014,
between Autobytel Inc. and Computershare Trust Company, N.A., as
rights agent, which is incorporated herein by reference to Exhibit
4.1 to the Current Report on Form 8-K filed with the SEC on April
16, 2014 (SEC File No. 001-34761), together with the Certificate of
Adjustment Under Section 11(m) of the Tax Benefit Preservation
Plan, which is incorporated herein by reference to Exhibit 4.3 to
the Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 2012 filed with the SEC on November 8, 2012 (SEC File
No. 001-34761)
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