Attached files
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| EX-10.1 - FOURTH AMENDED AND RESTATED STOCKHOLDER AGREEMENT - AutoWeb, Inc. | ex10-1.htm |
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) March 1,
2017
Autobytel Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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1-34761
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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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☐
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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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☐
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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
Entry Into a Material Definitive Agreement.
Fourth Amended and Restated Stockholder Agreement
On
January 26, 2017, the Board of Directors (“Board”) of Autobytel Inc.
(“Autobytel” or
“Company”)
authorized Robert J. Mylod, Jr., William Ferriolo and Julio
Gonzalez Arrivillaga, each individually, to purchase up to 25,000
shares of Autobytel common stock, $0.001 par value
(“Common
Stock”), in open market transactions. Additionally,
the Compensation Committee of the Board granted stock options to
purchase 5,000 shares of Common Stock to Mr. Arrivillaga in
connection with his service to the Company as an employee of a
wholly owned, indirect subsidiary of the Company. The foregoing
authorizations and options were contingent upon the execution of
the Fourth Amended and Restated Stockholder Agreement, which was
executed and became effective as of March 1, 2017, by and between
Autobytel and the parties set forth on the signature pages thereto
(“Stockholder
Agreement”). Any purchases by Messrs. Mylod, Ferriolo
and/or Arrivillaga must comply with the Stockholder Agreement,
Autobytel’s Securities Trading Policy, and applicable law,
rules, and regulations.
The
Stockholder Agreement also permits any grants authorized by the
Board, now or in the future, of options to purchase shares of
Common Stock, stock appreciation rights, restricted stock,
restricted stock units, and other share-based awards under any of
the Company’s then-current equity incentive plans to any
restricted stockholders in connection with such restricted
stockholders’ service to the Company.
The foregoing description of the Stockholder
Agreement is not complete and is qualified in its entirety by
reference to the Stockholder Agreement, a copy of which is filed
herewith as Exhibit 10.1 to this Current Report on Form
8-K.
Tax Benefit Preservation Plan Exemption
In connection with the foregoing authorizations
and 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: (i) the open market purchase transactions by Messrs. Mylod,
Ferriolo, or Arrivillaga, (ii) the foregoing stock option grant to
Mr. Arrivillaga, and (iii) any grants authorized by the Board,
now or in the future, of options to purchase shares of Common
Stock, stock appreciation rights, restricted stock, restricted
stock units, and other share-based awards under any of the
Company’s then-current equity incentive plans to any
restricted stockholders in connection with such restricted
stockholders’ service to the Company. The foregoing exemption is subject to and in
reliance upon, the restricted stockholders entering into and
remaining in compliance with the terms and conditions set forth in
the Stockholder Agreement.
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).
Item
9.01
Financial Statements and Exhibits.
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(d)
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Exhibits
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10.1
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Fourth
Amended and Restated Stockholder Agreement, made as of March 1,
2017, 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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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, the registrant
has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Date:
March 2, 2017
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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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Fourth
Amended and Restated Stockholder Agreement, made as of March 1,
2017, 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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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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