As filed with the Securities and Exchange Commission on June 16, 2006

Registration No. 333-                 

 


SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 


AUTOBYTEL INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware   68-0397820
(State or Other Jurisdiction of Incorporation or Organization)   (I.R.S. Employer Identification No.)

18872 MacArthur Boulevard

Irvine, California 92612-1400

(Address of Principal Executive Offices)

2006 Inducement Stock Option Plan

Inducement Stock Option Agreement

(Full title of the Plans)

Ariel Amir

Executive Vice President, Chief Legal and Administrative Officer and Secretary

Autobytel Inc.

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)

Copy to:

Thomas Pollock, Esq.

Paul, Hastings, Janofsky & Walker LLP

55 Second Street

24th Floor

San Francisco, California 94105-3441

(415) 856-7000

CALCULATION OF REGISTRATION FEE

 

 
Title of Securities to be Registered    Amount to be
Registered (1)
 

Proposed
Maximum
Offering Price Per

Share

  Proposed
Maximum
Aggregate
Offering Price
  Amount of
Registration Fee
Under 2006 Inducement Stock Option Plan: Common Stock, par value $0.001 per share    2,000,000(2)   $2.98(3)   $5,960,000(3)   $638(3)
Under Inducement Stock Option Agreement: Common Stock, par value $0.001 per share    1,000,000(2)   $4.68   $4,680,000   $501
 

 

(1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2006 Inducement Stock Option Plan or the Inducement Stock Option Agreement by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Autobytel Inc. Common Stock.

 

(2) Includes preferred share purchase rights, which are attached to the shares of Common Stock to be issued but do not trade separately from the shares of Common Stock until a triggering event. No additional offering price attaches to these rights.

 

(3) Estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended, on the basis of the average of high and low sale prices for a share of common stock of Autobytel Inc. (ABTL) as reported on The NASDAQ National Market on June 13, 2006.

 



PART I

 

Item 1. Plan Information.*

 

Item 2. Registrant Information and Employee Plan Annual Information.*

 

* Information required by Part I to be contained in the Section 10(a) prospectus is omitted from the Registration Statement in accordance with Rule 428(a)(1) under the Securities Act of 1933, as amended (the “Securities Act”), and the Note to Part I of Form S-8.


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

The following documents are hereby incorporated into this Registration Statement and made a part hereof by this reference:

 

(a)   The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005;
(b) (1)   The Registrant’s Current Report on Form 8-K, as filed on March 3, 2006.
(b) (2)   The Registrant’s Current Report on Form 8-K, as filed on March 7, 2006.
(b) (3)   The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006;
(b) (4)   The Registrant’s Current Report on Form 8-K, as filed on May 1, 2006;
(b) (5)   The Registrant’s Current Report on Form 8-K, as filed on May 10, 2006;
(b) (6)   The Registrant’s Current Report on Form 8-K/A, as filed on May 25, 2006;
(c) (1)   The description of the Registrant’s capital stock contained in the Registrant’s Registration Statement on Form S-3, as filed on June 28, 2004; and
(c) (2)   The description of the Registrant’s capital stock (including the description of the preferred share purchase rights) contained in the Registrant’s Registration Statement on Form S-3/A, as filed on September 16, 2004.


In addition, all documents filed by the Registrant with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), 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 Securities and Exchange Commission.

 

Item 4. Description of Securities.

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

Not applicable.

 

Item 6. Indemnification of Directors and Officers.

Reference is made to the Fifth Amended and Restated Certificate of Incorporation, as amended, of the Registrant, the Amended and Restated Bylaws, as amended, of the Registrant; and Section 145 of the Delaware General Corporation Law; which, among other things, and subject to certain conditions, authorize the Registrant to indemnify, or indemnify by their terms, as the case may be, the directors and officers of the Registrant against certain liabilities and expenses incurred by such persons in connection with claims made by reason of their being such a director or officer. Pursuant to this authority, the Registrant has entered into an indemnification agreement with each director and executive officer, whereby the Registrant has agreed to cover the indemnification obligations.

The Registrant maintains directors’ and officers’ insurance providing indemnification against certain liabilities for certain of the Registrant’s directors and officers.

The indemnification provisions in the Registrant’s Bylaws, and the indemnification agreements entered into between the Registrant and its directors and executive officers, may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities arising under the Act.

Reference is made to the following documents incorporated by reference into this Registration Statement regarding relevant indemnification provisions described above and elsewhere herein: (1) the Registrant’s Fifth Amended and Restated Certificate of Incorporation, filed as Exhibit 3.1 to the Registrant’s Amendment No. 1 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on February 9, 1999; (2) the Registrant’s Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 to the Registrant’s Amendment No. 2 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on March 5, 1999; (3) the Registrant’s Second Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 1999; (4) the Registrant’s Third Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation filed as Exhibit 3.3 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2001; (5) the Registrant’s Amended and Restated Bylaws filed as Exhibit 3.2 to Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on March 5, 1999; (6) Amendment No. 1 to Amended and Restated Bylaws filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001; (7) Amendment No. 2 to Amended and Restated Bylaws filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q


for the quarter ended March 31, 2002; and (8) Amendment No. 3 to Amended and Restated Bylaws filed as Exhibit 3.7 on Form 10-K for the year ended December 31, 2005.

 

Item 7. Exemption from Registration Claimed.

Not applicable.

 

Item 8. Exhibits.

 

Exhibit   

Description

  4.1      Fifth Amended and Restated Certificate of Incorporation (1)
  4.2      Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (2)
  4.3      Second Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (3)
  4.4      Third Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (4)
  4.5      Amended and Restated Bylaws (5)
  4.6      Amendment No. 1 to Amended and Restated Bylaws (6)
  4.7      Amendment No. 2 to Amended and Restated Bylaws (7)
  4.8      Amendment No. 3 to Amended and Restated Bylaws (8)
  4.9      2006 Inducement Stock Option Plan *
  4.10    Form of Employee Inducement Stock Option Agreement under 2006 Inducement Stock Option Plan *
  4.11    Inducement Stock Option Agreement *
  5.1      Opinion of Paul, Hastings, Janofsky & Walker LLP *
23.1      Consent of Paul, Hastings, Janofsky & Walker LLP (included with 5.1) *
23.2      Consent of PricewaterhouseCoopers LLP *
24.1      Power of Attorney (contained on the signature page)

* Filed herewith.

 

(1) Incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 1 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on February 9, 1999 (SEC File No. 333-70621).

 

(2) Incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 2 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on March 5, 1999 (SEC File No. 333-70621).


(3) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 1999, filed with the Securities and Exchange Commission on August 12, 1999 (SEC File No. 000-22239).

 

(4) Incorporated by reference to Exhibit 3.3 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Securities and Exchange Commission on March 22, 2002 (SEC File No. (000-22239).

 

(5) Incorporated by reference to Exhibit 3.2 of the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on March 5, 1999 (SEC File No. 333-70621).

 

(6) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001, filed with the Securities and Exchange Commission on November 14, 2001 (SEC File No. 000-22239).

 

(7) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, filed with the Securities and Exchange Commission on May 14, 2002 (SEC File No. 000-22239).

 

(8) Incorporated by reference to Exhibit 3.7 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005, filed with the Securities and Exchange Commission on March 16, 2006 (SEC File No. 000-22239).

 

Item 9. Undertakings.

 

A. Undertakings required by Item 512(a) of Regulation S-K.

 

  (a) The Registrant hereby undertakes:

(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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;


Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with 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 the Registration Statement.

(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment to this 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.

(3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering.

(4) That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and

(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.

 

B. Undertakings required by Item 512(b) of Regulation S-K.

The 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 that is incorporated by reference in this 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. Undertakings required by Item 512(h) of Regulation S-K.

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 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 or paid 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 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.


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 Irvine, California, this 16th day of June, 2006.

 

AUTOBYTEL INC.
By:   /s/ James E. Riesenbach
 

James E. Riesenbach

Chief Executive Officer, President and Director

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each of the Registrant, and the undersigned directors and officers of the Registrant hereby constitute and appoint James E. Riesenbach or Ariel Amir as his true and lawful attorneys-in-fact and agents, for him or her and in his or her name, place and stead, in any and all capacities, with full power to act alone, to sign any and all amendments to this Registration Statement, and to file each such amendment to this Registration Statement, with all exhibits thereto, and any and all documents in connection therewith, with the Securities and Exchange Commission, hereby granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform any and all acts and things requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them 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 below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/ Michael J. Fuchs

Michael J. Fuchs

   Chairman of the Board and Director   June 16, 2006

/s/ James E. Riesenbach

James E. Riesenbach

   Chief Executive Officer, President and Director (Principal Executive Officer)   June 16, 2006

/s/ Mark R. Ross

Mark R. Ross

   Vice Chairman and Director   June 16, 2006

/s/ Michael F. Schmidt

Michael F. Schmidt

   Executive Vice President and Chief Financial Officer (Principal Financial Officer)   June 16, 2006

/s/ Jill C. Richling

Jill C. Richling

   Vice President and Controller (Principal Accounting Officer)   June 16, 2006

/s/ Richard A. Post

Richard A. Post

   Director   June 16, 2006

/s/ Jeffrey H. Coats

Jeffrey H. Coats

   Director   June 16, 2006

/s/ Robert S. Grimes

Robert S. Grimes

   Director   June 16, 2006

/s/ Mark N. Kaplan

Mark N. Kaplan

   Director   June 16, 2006


EXHIBIT INDEX

 

Exhibit   

Description

  4.1      Fifth Amended and Restated Certificate of Incorporation (1)
  4.2      Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (2)
  4.3      Second Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (3)
  4.4      Third Certificate of Amendment of the Registrant’s Fifth Amended and Restated Certificate of Incorporation (4)
  4.5      Amended and Restated Bylaws (5)
  4.6      Amendment No. 1 to Amended and Restated Bylaws (6)
  4.7      Amendment No. 2 to Amended and Restated Bylaws (7)
  4.8      Amendment No. 3 to Amended and Restated Bylaws (8)
  4.9      2006 Inducement Stock Option Plan *
  4.10    Form of Employee Inducement Stock Option Agreement under 2006 Inducement Stock Option Plan *
  4.11    Inducement Stock Option Agreement *
  5.1      Opinion of Paul, Hastings, Janofsky & Walker LLP *
23.1      Consent of Paul, Hastings, Janofsky & Walker LLP (included with 5.1) *
23.2      Consent of PricewaterhouseCoopers LLP *
24.1      Power of Attorney (contained on the signature page)

* Filed herewith.

 

(1) Incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 1 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on February 9, 1999 (SEC File No. 333-70621).

 

(2) Incorporated by reference to Exhibit 3.1 of the Registrant’s Amendment No. 2 to Registration Statement filed on Form S-1 with the Securities and Exchange Commission on March 5, 1999 (SEC File No. 333-70621).

 

(3) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 1999, filed with the Securities and Exchange Commission on August 12, 1999 (SEC File No. 000-22239).

 

(4) Incorporated by reference to Exhibit 3.3 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2001, filed with the Securities and Exchange Commission on March 22, 2002 (SEC File No. (000-22239).

 

(5) Incorporated by reference to Exhibit 3.2 of the Registrant’s Registration Statement on Form S-1 filed with the Securities and Exchange Commission on March 5, 1999 (SEC File No. 333-70621).

 

(6) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2001, filed with the Securities and Exchange Commission on November 14, 2001 (SEC File No. 000-22239).

 

(7) Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2002, filed with the Securities and Exchange Commission on May 14, 2002 (SEC File No. 000-22239).

 

(8) Incorporated by reference to Exhibit 3.7 of the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2005, filed with the Securities and Exchange Commission on March 16, 2006 (SEC File No. 000-22239).

Exhibit 4.9

AUTOBYTEL INC.

2006 INDUCEMENT 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:

“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, and shall include any Special Committee that the Board or the Committee may appoint (provided that the Special Committee may only exercise discretion with respect to Participants to whom the Special Committee is authorized to make Options).

“Affiliate” means any entity, including any Parent Corporation or Subsidiary Corporation within the meaning of Section 424 of the Code, which together with the Company is under common control within the meaning of Section 414 of the Code.

“Board” means the Board of Directors of the Company.

“Code” means the Internal Revenue Code of 1986, as amended.

“Committee” means the Compensation Committee appointed by the Board in accordance with Section 3 of this Plan, or any successor committee thereto.

“Common Stock” means the common stock, par value $.001 per share, of the Company.

“Company” means Autobytel Inc., a Delaware corporation.

“Director” means a member of the Board of Directors of the Company, and any director or directors of an Employer Company whom the Board designates as being eligible for Options.

“Employee” means an individual who is employed (within the meaning of Section 3401 of the Code and the Treasury Regulations thereunder) by the Company or any present or future Employer Company.

“Employer Company” means a company, whether (i) the Company or a Parent Corporation or Subsidiary Corporation of the Company, which employs the Employee; or


(ii) a 50% or more affiliate of the Company or a Parent Corporation or Subsidiary Corporation of the Company, which employs the Employee.

“Fair Market Value of Shares” shall mean (i) if the Shares are not publicly traded on the day in question, the closing price of the Shares on the prior trading day or the next trading day (whichever is closest in time to the day in question), provided that such date is no more than five (5) days from the date the Option is granted, (ii) if the Shares are not publicly traded on the day in question and clause (i) above does not apply, 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 Treasury Regulations thereunder), or (iii) 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 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 or if the Shares are not listed or admitted to trading on any national securities exchange, 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.

“NASD Marketplace Rules” means the Marketplace Rules adopted by the Board of Governors of the NASD pursuant to the by-laws of the NASD, as amended or supplemented from time to time.

“Option” means an option to purchase a Share pursuant to the provisions of this Plan.

“Option Agreement” means any written document setting forth the terms and conditions of an Option, as prescribed by the Committee.

“Option Price” means the price per share of the Shares subject to each Option as provided in Section 6.3 below.

“Option Term” means the maximum period of time during which an Option may be earned, exercised or purchased as set forth in Section 6.7 below.

“Parent Corporation” shall have the meaning assigned to that term under Section 424 of the Code.

“Participant” shall have the meaning assigned to that term in Section 4.1 below.

“Plan” means the Autobytel Inc. 2006 Inducement Stock Option Plan, the terms of which are set forth herein.

 

-2-


“Share” or “Shares” means Common Stock, 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.

“Special Committee” means any committee to which the Board or Committee may delegate the authority to grant Options to eligible persons not described in Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

“Subsidiary Corporation” shall have the meaning assigned to that term under Section 424 of the Code.

“Total and Permanent Disability,” unless otherwise specified in the applicable Option Agreement, means the inability of an Employee 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.

SECTION 2

THE PLAN

2.1 Name . This Plan shall be known as “Autobytel Inc. 2006 Inducement Stock Option Plan.”

2.2 Purpose . The sole purpose of this Plan is to advance the interests of the Company and its stockholders by inducing individuals to join the an Employer Company as Employees or Directors by affording such individuals an opportunity to acquire a proprietary interest in the Company by the grant to such individuals of Options under the terms set forth herein.

2.3 Intention; Options . It is intended that Options under this Plan will not qualify as incentive stock options within the meaning of Section 422 of the Code and the terms of this Plan shall be interpreted in accordance with such intention. It is further intended that the Options under this Plan will not require shareholder approval pursuant to Rule 4350(i)(1)(A)(iv) of the NASD Marketplace Rules.

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

 

-3-


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 Exchange Act, 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 Special Committee the authority to grant Options and to specify the terms and conditions thereof to certain eligible persons who are not subject to the requirements of Section 16 of the Exchange Act, in accordance with guidelines approved by the Board or Committee.

3.2 Duties . The Administrator shall from time to time at its discretion determine the individuals who are to be granted Options, the terms of any Options, and the number of Shares to be subject to Options to be granted to each Participant. The interpretation and construction by the Administrator of any provisions of this Plan or of any Option granted thereunder shall be final. Moreover, the Administrator shall at any time be entitled to modify the vesting terms for Options, the timing rules for exercise of Options, and any other provisions relating to the Options (to the extent the modification would be allowable under this Plan for a new Option), provided that the Participant shall so consent to any modification adverse to the Participant’s interests. 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 Administrator may from time to time grant Options to such persons (collectively, “Participants”; individually a “Participant”), solely in connection with the hiring as an Employee or appointment as a Director, as the Administrator may select from among the following classes of persons:

 

  (a) Newly hired Employees of the Company;

 

  (b) Newly hired Employees of any other Employer Company; and

 

  (c) Any newly appointed Directors.

 

-4-


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 pursuant to all Options, shall not exceed 2,000,000 Shares. Such Shares may be either authorized and unissued Shares or issued Shares which have been reacquired by the Company. 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 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 for Options if the Company pays a special or extraordinary dividend.

 

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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; provided, however, that the Special Committee may from time to time grant Options to eligible persons not described in Section 16 of the Exchange Act or serving on the Special Committee. Each Option grant shall be evidenced by a written Option Agreement, dated as of the date of grant and executed by the Company and the Participant, which Option Agreement shall set forth the number of Options granted, the Option Price, the Option Term and such other terms and conditions as may be determined appropriate by the Administrator (or the Special Committee), including any performance criteria, provided that such terms and conditions are not inconsistent with this Plan. The 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) Options shall be granted by the Administrator 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 terms for any purchase, the exercisability and vesting schedule of such grants) need not be uniform, whether or not the Participants are similarly situated.

6.2 Conditions With Respect to Options . Each Option shall be subject to the following conditions:

(a) At the time of grant, the Administrator may, in its discretion, place additional restrictions on Options requiring that the Option will vest only if and when, or on an accelerated basis if and when, the Common Stock price exceeds a specific amount.

(b) At the time of grant, the Administrator may, in its discretion, require that on the exercise of such a grant an Employee will purchase Shares that will be forfeited if the Participant terminates employment within a certain number of years. Additional transferability restrictions may be imposed in connection with Options.

(c) In no event may any Option become exercisable later than the date preceding the tenth anniversary date of the grant thereof.

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

 

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event, shall not be less than one hundred percent (100%) of the Fair Market Value of Shares on the date of the grant determined in compliance with Section 405A of the Code and the regulations thereunder.

6.4 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 installments as the Administrator shall determine; provided that if a Participant does not purchase all of the Shares which the Participant is entitled to purchase on a certain date or within an established installment period, the Participant’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 this Plan); provided, further that a Participant 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.

6.5 Method of Exercising Options .

(a) Options shall be exercised by a written notice, delivered to the Company at its principal office located at 18872 MacArthur Blvd., 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) that the Participant has owned for at least six months, or some combination of the foregoing or such other form of consideration which has been approved by the Administrator, including any cashless exercise mechanism approved by the Administrator. 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 Administrator shall determine in its sole 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 Participant 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 a Participant pays all or part of the Option Price in Shares, the Administrator shall be entitled as it deems appropriate but solely in its discretion, to award to the Participant additional Options equal to the number of Shares tendered to exercise, provided such Option has an Option Price equal to Fair Market Value.

 

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6.6 Buyout Provisions . Subject to stockholder approval for a broad-based offer and to any other approval requirements that may apply (in either case, as determined by the Administrator in its sole discretion), the Administrator may at any time offer to buy out an Option, in exchange for a payment in cash or Shares, based on such terms and conditions as the Administrator shall establish and communicate to the Participant at the time that such offer is made. In addition, subject to stockholder approval for a broad-based offer and to any other approval requirements that may apply (in either case, as determined by the Administrator in its sole discretion) if the Fair Market Value for Shares subject to an Option is more than 50% below their Option Price for more than 30 consecutive business days, the Administrator may unilaterally terminate and cancel the Option either (i) by paying the Participant, in cash or Shares, an amount not less than the Black-Scholes value of the vested portion of the Option, or (ii) by irrevocably committing to grant a new Option, on a designated date more than six months after such termination and cancellation of such Option (but only if the Participant’s service as an Employee has not terminated prior to such designated date), on substantially the same terms as the cancelled Option, provided that the per Share Option Price for the new Option shall equal the per Share Fair Market Value of a Share on the date the new grant occurs.

6.7 Option Term . The Option Term shall be determined by the Administrator 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. Options may be subject to earlier termination as provided in this Plan.

6.8 Non-Transferability .

(a) General . Except as set forth in Section 6.8(c) below, Options may not be sold, pledged, assigned, hypothecated, transferred, or otherwise encumbered or disposed of other than by will or by the laws of descent or distribution, and except as specifically provided in this Plan or the applicable Option Agreement. During a Participant’s lifetime, an Option shall only be exercisable by the Participant. Furthermore, unless the Option Agreement provides otherwise, additional Shares or other property distributed to the Participant in respect of Shares, as dividends or otherwise, shall be subject to the same restrictions applicable to such Option grant.

(b) Special Rule for Beneficiaries . The designation of a beneficiary by a Participant will not constitute a transfer. In the absence of a validly designated beneficiary, a Participant’s beneficiary shall be his or her estate.

(c) Limited Transferability Rights . To the extent specifically authorized by the Administrator in an Option Agreement or amendment thereto, any Participant may transfer Options either by gift to immediate family, or by instrument to an inter vivos or testamentary trust in which the Options are to be passed, upon the death of the grantor, to beneficiaries who are immediate family

 

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(or otherwise approved by the Administrator). A permitted transfer of an Option (including but not limited to a transfer 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 such evidence (e.g., an executed will or trust) 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 Option grant.

6.9 Withholding Tax .

(a) In the event the Company determines that it is required to withhold employment or income tax in connection with an Option (for instance, as a result of the exercise of an Option as a condition for the exercise thereof), the Participant 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 Participant having a Fair Market Value at the time the Participant becomes subject to income tax equal to the amount to be withheld and that have been held by the Participant for more than six months, (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 the Participant becomes subject to income tax equal to the amount to be withheld or (iv) any combination of (i), (ii) and (iii) above.

(b) The Administrator shall be entitled as it deems appropriate to make available for issuance under this Plan Shares tendered by a Participant as payment of the price for any Shares used to satisfy the Company’s withholding requirements.

6.10 Rights in the Event of Sale, Merger or Other Reorganization . Except as expressly provided in Section 5.2 and this Section, the Participant 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 price (if applicable) 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:

(a) Unless otherwise provided in the Option Agreement for any given Option, notwithstanding anything in the Plan to the contrary, upon any such

 

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merger (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), consolidation, or sale or transfer of assets, all rights of the Participant 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 of the obligations of the Company with respect to this Plan and the rights of Participants with respect to Options granted hereunder.

(b) Unless otherwise provided in the Option Agreement for any given Option, upon any such liquidation or dissolution, all rights of the Participant with respect to the unvested 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 Participants with respect to Options granted hereunder.

(c) If provided for in the Option Agreement, any employment agreement or other arrangement between the Participant and the Company that specifically covers any Option granted hereunder, upon a change in control, (i) all rights of the Participant with respect to the unexercised portion of any Option shall fully vest and become exercisable as provided in such Option Agreement, employment agreement or other arrangement upon the effective date of any such change in control, (ii) the Company will honor any special distribution election that the Participant makes more than 90 days before the change in control, provided the distribution form is complete within five years thereafter, and (iii) the Company shall pay the Participant an amount reasonably expected to hold the Participant harmless from any excise taxes imposed on the Participant under Section 4999 of the Code, applicable regulations, or any successor thereto.

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 merger, consolidation, sale or transfer of assets, liquidation or dissolution to pay the purchase or exercise price, if any, for 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 purchase set forth in the Option Agreement have occurred or been waived. In no event, however, may any Option that becomes exercisable pursuant to this Section 6.10 be exercised, in whole or in part, later than the date preceding the tenth anniversary date of the grant thereof.

 

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6.11 Option Rights in the Event of Death, Total and Permanent Disability, or Termination .

(a) Rights in the Event of Death . Unless otherwise provided in the Option Agreement for any given Option, if a Participant’s employment or business relationship with or service to the Employer Company or service as a member of the Board is 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 Participant’s Options shall continue to have (subject to Sections 6.2 and 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 Option Agreement, to exercise any Options which such Participant would have been entitled to exercise on the Participant’s death. At the expiration of such period any such Options which remain unexercised shall expire. Unless the Administrator provides otherwise in the Option Agreement, any Options that could not have been exercised by a Participant as of the Participant’s death may not be exercised.

(b) Rights in the Event of Total and Permanent Disability . Unless otherwise provided in the Option Agreement for any given Option, if a Participant’s employment or business relationship with or service to the Employer Company or service as a member of the Board is terminated on account of Total and Permanent Disability, the Participant shall have (subject to Sections 6.2 and 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 Option Agreement, to exercise any Options which such Participant would have been entitled to exercise on the date of such Participant’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 Option Agreement, any Options that could not have been exercised by a Participant on the date of such Participant’s Total and Permanent Disability may not be exercised.

(c) Rights in the Event of Termination of Employment or Service . Unless otherwise provided in the Option Agreement for any given Option, in the event that a Participant’s employment or business relationship with or service to the Employer Company or service as a member of the Board terminates, other than by reason of death or Total and Permanent Disability and other than due to termination for “Cause,” the Participant shall have (subject to Sections 6.2 and 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 Option Agreement, to exercise any Options which such Participant would have been entitled to exercise on the date of such Participant’s termination. At the expiration of such period any such Options which remain unexercised shall

 

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expire. Unless the Administrator provides otherwise in the Option Agreement any Options that could not have been exercised by a Participant on the date of such Participant’s termination of employment or service as a member of the Board or business relationship may not be exercised. Notwithstanding the foregoing, if the employment or service of or business relationship with a Participant is terminated for “Cause” by the Employer Company, the Company may notify the Participant that any Options not exercised prior to the termination are cancelled. For purposes hereof and unless the Administrator provides otherwise in the Option Agreement, a termination of service or business relationship for “Cause” shall include dismissal as a result of (1) Participant’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) Participant’s gross negligence, gross incompetence or willful gross misconduct in the performance of his or her duties; or (3) Participant’s willful and material 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 fulfillment 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.

 

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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 Participant or the Company of any provision of any law or regulation of any governmental authority or any securities exchange or market. 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 Participant as the Company may deem necessary or advisable to assure compliance with any such law or regulation, including if the Company or its counsel deems it appropriate, representations from the Participant that the Participant is acquiring the Shares solely for investment and not with a view to distribution and that no distribution of the Shares acquired by the Participant 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.

SECTION 8

TERMINATION, AMENDMENT AND MODIFICATION OF PLAN

8.1 Board Termination, Amendment and Modification of Plan . The Board may at any time amend or modify this Plan; provided, however, that no such action of the Board shall take effect without approval of the stockholders of the Company to the extent such approval is required by applicable law or determined by the Board to be necessary or desirable for any reason (including but not limited to the satisfaction of listing requirements on a stock exchange). Notwithstanding anything to the contrary, the Board shall be entitled to adjust the Option Price with respect to any outstanding Option at any time provided that the Participant shall so consent.

8.2 Plan Termination . Unless terminated earlier as provided in Section 8.2, this Plan shall terminate ten (10) years from the date this Plan 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 Participant 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 Participant or a person who shall have acquired the right to 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 Participant, except pursuant to Section 6.8.

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 a Participant.

9.3 No Rights to Employment or Provide Service . Nothing in this Plan or in any Option granted hereunder or in any Option Agreement relating thereto shall confer upon any individual the right to continue employment with or to provide service to the Employer Company or service as a member of the Board.

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 Participant at the time the offer is extended to the Participant.

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 . The terms of this Plan shall become effective on the date this Plan is adopted and approved by the Board.

9.9 Rights as Stockholder . Any Participant 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 Delaware, without giving effect to the principles of conflict of laws thereof.

9.11 Reports . The Company will comply with all applicable reporting and tax requirements applicable to Options under the Code.

 

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Exhibit 4.10

FORM OF

INDUCEMENT STOCK OPTION AGREEMENT

THIS AGREEMENT is made as of the      day of                      , 200      (the “Grant Date”), by and between Autobytel Inc. (“Autobytel” or the “Company”) and [Name of employee] (“Optionee”).

RECITALS

WHEREAS , the Company has adopted the 2006 Inducement Stock Option Plan (the “Plan”).

WHEREAS , the Company desires to offer employment to Optionee.

WHEREAS , as an inducement to accept such employment offer, the Company desires to offer Optionee an option (the “Option”) to purchase                      shares of Common Stock (the shares subject to this award being referred to below as the “Shares”) under the terms and conditions set forth herein.

WHEREAS , the exercise price for the Shares subject to this Option shall be equal to the Fair Market Value of Shares on the Grant Date.

NOW THEREFORE , it is hereby agreed as follows:

1. Grant of Option . Autobytel hereby grants to Optionee, as of the Grant Date, an Option to purchase up to                      Shares at the Exercise Price per Share. The Shares shall be purchasable from time to time in accordance with the Vesting Schedule in Paragraph 3(b).

2. Option Term . The Option shall have a maximum term of ten (10) years measured from the Grant Date and shall accordingly expire at the close of business on the tenth anniversary of the Grant Date, unless sooner terminated in accordance with Paragraph 6, 7 or 8.

3. Exercisability/Vesting .

(a) Right to Exercise . This Option shall be exercisable during its term in accordance with the Vesting Schedule and with the applicable provisions of the Plan and this Agreement. In the event of Optionee’s death, disability or other termination of Service, this Option shall be exercisable in accordance with the applicable provisions of the Plan and this Agreement.

(b) Vesting Schedule . Subject to Paragraphs 5, 6, 7 and 8, thirty-three and one-third percent (33 1/3%) of the Option shall vest and become exercisable on the first anniversary after the Grant Date, and one thirty-sixth (1/36) of the Option shall vest and become exercisable on each successive monthly anniversary thereafter for the following twenty-four (24) months ending on the third anniversary of such Grant Date. The Option shall remain exercisable to the extent vested until the Expiration Date or the sooner termination of the Option term under Paragraphs 6, 7 and 8.


(c) Method of Exercise . This Option shall be exercisable by written notice (in the form attached as Exhibit I) which shall state the election to exercise the Option, the number of Shares in respect of which the Option is being exercised, and such other representations and agreements as may be required by the Company pursuant to the provisions of the Plan. Such written notice shall be signed by the Optionee and shall be delivered in person or by certified mail to the Secretary of the Company. The written notice shall be accompanied by payment of the Exercise Price. This Option shall be deemed to be exercised upon receipt by the Company of such written notice accompanied by the Exercise Price.

No Shares will be issued pursuant to the exercise of an Option unless such issuance and such exercise shall comply with all relevant provisions of law and the requirements of any stock exchange or automated inter-dealer quotation system upon which the Shares may then be listed. Assuming such compliance, for income tax purposes the Shares shall be considered transferred to the Optionee on the date on which the Option is exercised with respect to such Shares.

(d) Method of Payment . Payment of the Exercise Price shall be by any of the following, or a combination thereof, at the election of the Optionee:

(i) cash;

(ii) certified, bank cashier’s, or teller’s check;

(iii) surrender of other shares of Common Stock which (A) in the case of Shares acquired pursuant to the exercise of a Company option, have been owned by the Optionee for more than six (6) months on the date of surrender, and (B) have a Fair Market Value on the date of surrender equal to the Exercise Price of the Shares as to which the Option is being exercised; or

(iv) if established by Autobytel and permitted under applicable law (including the financial accounting rules associated with avoiding additional financial expense through the method of exercise), through a “same day sale” commitment from Optionee and a broker-dealer approved by Autobytel whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price for the Shares being exercised and whereby the broker-dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price for the Shares being exercised directly to Autobytel plus the applicable Federal, state and local income taxes required to be withheld by Autobytel by reason of such exercise.

4. Withholding Tax . In the event the Company determines that it is required to withhold employment or income tax in connection with an Option (for instance, as a result of the exercise of an Option as a condition for 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 of Common Stock registered in the name of the Optionee having a Fair Market Value at the time the Optionee becomes subject to income tax equal to the amount to be withheld and that have been held by the Optionee for more than six months, (iii) by the Company retaining or not issuing such number of Shares subject to the

 

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Option as have a Fair Market Value at the time the Optionee becomes subject to income tax equal to the amount to be withheld or (iv) any combination of (i), (ii) and (iii) above.

5. Restrictions on Exercise . This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of consideration for such Shares would constitute a violation of any applicable federal or state securities or other law or regulation, including any rule under Part 207 of Title 12 of the Code of Federal Regulations (“Regulation G”) as promulgated by the Federal Reserve Board.

6. Termination of Relationship . As of the date of the Optionee’s termination of Service, Optionee may, to the extent otherwise so entitled at the date of such termination, exercise this Option for a period of ninety (90) days following the date of termination (and in no event later than the Expiration Date of the term of such Option). To the extent that Optionee was not entitled to exercise this Option at the date of such termination, or if Optionee does not exercise this Option within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

7. Disability of Optionee . Notwithstanding the provisions of Paragraph 6 above, in the event of termination of an Optionee’s Service as a result of his or her Total and Permanent Disability, Optionee may, but only within six (6) months from the date of such termination (and in no event later than the Expiration Date), exercise the Option to the extent otherwise entitled to exercise it at the date of such termination. To the extent that Optionee was not entitled to exercise the Option at the Expiration Date, or if Optionee does not exercise such Option to the extent so entitled within the time specified herein, the Option shall terminate, and the Shares covered by such Option shall revert to the Plan.

8. Death of Optionee . In the event of termination of Optionee’s Service as a result of the death of Optionee, the Option may be exercised at any time within twelve (12) months following the date of death (but in no event later than the Expiration Date), by Optionee’s estate or by a person who acquired the right to exercise the Option by bequest or inheritance, but only to the extent the Optionee could exercise the Option at the date of death.

9. Stockholder Rights . Until the stock certificate evidencing such Shares is issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Shares, notwithstanding the exercise of the Option. The Company shall issue (or cause to be issued) such stock certificate promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided in the Plan.

10. Non-Transferability of Option . This Option may not be transferred in any manner otherwise than by will, the laws of descent or as otherwise contemplated by and in accordance with the Plan. The terms of this Option shall be binding upon the executors, administrators, heirs, successors and assigns of the Optionee.

11. No Impairment of Rights . This Agreement shall not in any way affect the right of Autobytel to adjust, reclassify, reorganize or otherwise make changes in its capital or business

 

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structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.

12. Compliance with Laws and Regulations .

(a) The exercise of the Option and the issuance of the Shares upon such exercise shall be subject to compliance by Autobytel and Optionee with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange or automated inter-dealer quotation system on which the Common Stock may be listed for trading at the time of such exercise and issuance.

(b) The inability of Autobytel to obtain approval from any regulatory body having authority deemed by Autobytel to be necessary to the lawful issuance and sale of any Common Stock pursuant to the Option shall relieve Autobytel of any liability with respect to the non-issuance or sale of the Common Stock as to which such approval shall not have been obtained. However, Autobytel shall use its best efforts to obtain all such applicable approvals.

13. Successors and Assigns . Except to the extent otherwise provided in Paragraphs 8 and 10, the provisions of this Agreement shall inure to the benefit of, and be binding upon, Autobytel and its successors and assigns and Optionee, Optionee’s assigns and the legal representatives, heirs and legatees of Optionee’s estate.

14. Governing Law . The interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of Delaware without resort to its conflict-of-laws rules.

15. Non-Statutory Stock Options . The Option granted hereunder is not intended to be an incentive stock option within the meaning of Section 422 of the Code.

16. No Right to Continued Service . Nothing in this Agreement shall confer upon Optionee any right to continue in the Service of Autobytel or shall interfere with or restrict in any way the rights of Autobytel which are hereby expressly reserved, to discharge Optionee at any time for any reason whatsoever, with or without Cause.

17. Notices . Any notice required to be given or delivered to Autobytel under the terms of this Agreement shall be in writing and addressed to Autobytel at its principal corporate offices. Any notice required to be given or delivered to Optionee shall be in writing and addressed to Optionee at the most recent address reflected in Autobytel’s employment records. All notices shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, postage prepaid and properly addressed to the party to be notified.

18. Administration of Option . The Board or the Compensation Committee of the Board (individually or collectively referred to as the “Administrator” in this Agreement and the Plan) shall have full discretion to interpret all provisions of this Option, and all decisions of the Board regarding the Option shall be binding on all parties.

19. Capitalized Terms . Capitalized terms in this Agreement not otherwise defined herein or in the Plan shall have the meaning assigned to them in the Appendix attached hereto.

 

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20. Entire Agreement; Agreement Controlling . The Plan is incorporated herein by reference. The Plan and this Agreement, including the Appendix, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by the Company and Optionee. In the event of any inconsistency between this Agreement and the Plan, this Agreement shall prevail.

 

5


IN WITNESS WHEREOF , the parties have executed this Agreement as of the day and year first above written.

 

AUTOBYTEL INC.
By:     
  Name:
  Title:
OPTIONEE
    
  [Name]
  Optionee

 

6


EXHIBIT I

NOTICE OF EXERCISE

I hereby notify Autobytel Inc. (“Autobytel”) that I elect to purchase              shares of Autobytel’s Common Stock (the “Purchased Shares”) at the Option exercise price of $              per share (the “Exercise Price”) pursuant to that certain Option (the “Option”) granted to me pursuant to Autobytel’s inducement Option grant.

Concurrently with the delivery of this Exercise Notice to the Secretary of Autobytel, I shall hereby pay to Autobytel the Exercise Price for the Purchased Shares in accordance with the provisions of my agreement with Autobytel evidencing the Option and shall deliver whatever additional documents may be required by such agreement as a condition for exercise. Alternatively, I may utilize the special broker/dealer sale and remittance procedure specified in my agreement, to the extent established by Autobytel and permitted by the terms of the Option grant agreement and applicable law (including the financial accounting rules associated with avoiding additional financial expense through the method of exercise), to effect payment of the Exercise Price and any tax withholding for any Purchased Shares in which I am vested at the time of exercise.

                     , 200     

Date

 

    
  Optionee
  Address:
                  ____________________________________
Print name in exact manner
it is to appear on the
stock certificate:
    
    
Address to which certificate
is to be sent, if different
from address above:
    
    
Social Security Number:     

 

7


APPENDIX

The following definitions shall be in effect under the Agreement:

A. Agreement shall mean this Inducement Stock Option Agreement.

B. Board shall mean Autobytel’s Board of Directors.

C. Code shall mean the Internal Revenue Code of 1986, as amended.

D. Common Stock shall mean Autobytel’s common stock, par value $0.001 per share.

E. Exercise Date shall mean the date on which the Option shall have been exercised in accordance with Paragraph 3(b) of the Agreement.

F. Exercise Price shall mean $              per Share.

G. Expiration Date shall mean the date on which the Option term expires as specified in Paragraph 2.

H. Fair Market Value shall have the meaning ascribed to such term in the Plan.

I. Grant Date shall mean the date designated in the preamble to the Agreement granting the Option.

J. Optionee shall mean the person to whom the Option is granted as specified in the Agreement.

K. Service shall mean Optionee’s service with Autobytel, whether as an employee, director or consultant, which has not been interrupted or terminated. Optionee’s Service shall not be deemed to have terminated merely because of a change in the capacity in which Optionee renders service to Autobytel.

L. Shares shall mean the number of shares of Common Stock subject to the Option.

M. Total and Permanent Disability shall mean the inability of the Employee 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.

N. Vesting Schedule shall mean the vesting schedule specified in Paragraph 3(b) of the Agreement, pursuant to which Optionee will vest in the Shares in one or more installments over his or her period of Service, subject to acceleration in accordance with the provisions of the Agreement.

 

8

Exhibit 4.11

INDUCEMENT STOCK OPTION AGREEMENT

THIS AGREEMENT, made as of the 20th day of March, 2006 (the “Grant Date”), by and between Autobytel Inc. (“Autobytel” or the “Company”) and James E. Riesenbach (“Optionee”).

RECITALS

WHEREAS , the Board has determined to offer employment to Optionee pursuant to an employment agreement between the Company and the Optionee, dated as of March 1, 2006 (the “Employment Agreement”).

WHEREAS , as an inducement to accept such employment offer, the Board has determined to offer Optionee an option (the “Option”) to purchase 1,000,000 shares of Common Stock (the shares subject to this award being referred to below as the “Shares”) under the terms and conditions set forth herein.

WHEREAS , the exercise price for the Shares subject to this Option shall be equal to the Fair Market Value (as defined in the Appendix hereto) of the underlying Shares on the Grant Date.

WHEREAS , all capitalized terms in this Agreement, to the extent not otherwise defined herein, shall have the meaning assigned to them in the attached Appendix.

NOW THEREFORE , it is hereby agreed as follows:

1. Grant of Option . Autobytel hereby grants to Optionee, as of the Grant Date, an Option to purchase up to 1,000,000 Shares at the Exercise Price per Share. The Shares shall be purchasable from time to time in accordance with the Vesting Schedule in Paragraph 3.

2. Option Term . The Option shall have a maximum term of ten (10) years measured from the Grant Date and shall accordingly expire at the close of business on the tenth anniversary of the Grant Date, unless sooner terminated in accordance with Paragraph 4 or 5.

3. Exercisability/Vesting . The right to exercise the Option shall vest in the Optionee, and the Option shall become exercisable in accordance with the Vesting Schedule set forth herein. The Option shall remain exercisable to the extent vested until the Expiration Date or the sooner termination of the Option term under Paragraph 4 or 5. The right to exercise the Option shall vest in the Optionee as follows:

(i) 333,333 of the Options shall vest on the first anniversary of the Commencement Date (as defined in the Employment Agreement) provided the Optionee is actively employed by the Company on such anniversary date;

 

1


(ii) 11,111 of the Options shall vest on each monthly anniversary of the Commencement Date over the period beginning on the thirteenth (13th) monthly anniversary of the Commencement Date and ending on the thirty-fifth (35th) monthly anniversary of the Commencement Date and 11,114 Options shall vest on the day immediately preceding the thirty-sixth (36th) monthly anniversary of the Commencement Date; provided the Optionee is actively employed by the Company on the respective vesting dates; and

(iii) on the date the Company files with the Securities and Exchange Commission under the Securities and Exchange Act of 1934, as amended, its Annual Report on Form 10-K (each a “Form 10-K”) for each of the fiscal years ending on December 31, 2007 and December 31, 2008, 200,000 of the Options shall vest, but only if (I) the Optionee is actively employed by the Company on the respective vesting dates, and (II) the Company and the Optionee have satisfied reasonable performance criteria established as described below in this clause (iii). Notwithstanding the foregoing, if any such filing of a Form 10-K by the Company is delayed beyond the expiration of the Term (as defined in the Employment Agreement), the Options shall be subject to vesting (whether or not the Executive is still employed by the Company) if and when such Form 10-K is filed provided that the performance criteria established by the Board or such committee in respect of such respective fiscal year are met. The performance criteria shall include, among other factors, revenue and EBITDA targets for the Company and shall be set by the Board or a committee thereof in its sole discretion within 90 days of the Board adopting the operating plan of the Company for such respective year, subject to consulting with the Executive on the criteria.

Vesting in the Shares may be accelerated pursuant to the provisions of Paragraph 4 or 5 below. Unless otherwise specifically provided herein, no Shares shall vest following the Optionee’s cessation of Service.

4. Cessation of Service .

(a) Termination due to Death or Disability . As of the date of the Optionee’s termination due to death or Disability (as defined below), any unexercised portion of any Option shall be exercisable (to the extent previously vested) from the date of such termination of the Optionee’s Service until two (2) years following such termination date, but in no event later than ten (10) years following the Grant Date. As to unvested Options at the date of the Optionee’s termination due to death or Disability, all unvested performance-based Options shall terminate and all time-based Options that have not yet vested shall vest and shall be exercisable from the date of such termination of the Optionee’s Service until ninety (90) days following such termination date, but in no event later than ten (10) years following the Grant Date. For purposes hereof, “Disability” shall have the same meaning and be determined in the same manner as set forth in the Employment Agreement.

(b) Termination for Cause. As of the date of the Optionee’s termination of Service for Cause (as defined below), any unvested or unexercised portion of any Option shall terminate immediately and shall be of no further force or effect. For purposes hereof, “Cause” shall have the same meaning and be determined in the same manner as set forth in the Employment Agreement.

 

2


(c) Termination Without Cause or for Good Reason . As of the date of the Optionee’s termination of Service by Autobytel without Cause or by the Optionee for Good Reason (as defined below), any unexercised portion of any Option shall (to the extent previously vested) be exercisable from such termination of the Optionee’s Service until the date that is two (2) years following the termination date, but in no event later than ten (10) years following the Grant Date. As to unvested Options at the date of the Optionee’s termination of Service by Autobytel without Cause or by Optionee for Good Reason, all unvested performance-based Options shall terminate and all time-based Options that have not yet vested shall vest and shall be exercisable from the date of such termination of the Optionee’s Service until ninety (90) days following such termination date, but in no such event later than ten (10) years following the Grant Date. The term “without Cause” shall mean the termination of the Optionee’s Service for any reason other than those expressly set forth in the definition “for Cause” above, or no reason at all, or for Good Reason. For purposes hereof, “Good Reason” shall have the same meaning and be determined in the same manner as set forth in the Employment Agreement.

(d)  Termination Without Good Reason . As of the date of any voluntary termination of Service with the Company by the Optionee other than due to death or Disability, and other than for Good Reason, any unvested portion of any Option shall terminate immediately and shall be of no further force or effect. Any previously vested but unexercised portion of any Option shall remain exercisable from the date of such termination of employment until the second anniversary of the termination date, but in no event later than ten (10) years following the Grant Date.

(e) Termination upon Expiration of Employment Agreement . As of the date of any termination of Optionee’s Service with the Company at the time of, or subsequent to, the expiration of the Employment Agreement by lapse of time and for no other reason, then any previously vested but unexercised portion of any Option shall remain exercisable from the date of such termination of employment until the second anniversary of such termination date, but in no event later than ten (10) years following the Grant Date.

5. Change in Control .

In the event of a Change of Control (as defined below) while the Optionee is employed by the Company, any unvested installment of any Option shall immediately vest and become exercisable from the date of such Change of Control until the second anniversary of the Change of Control, but in no event later than ten (10) years following the Grant Date provided , however, that notwithstanding the foregoing, any such stock options shall remain exercisable beyond such dates so long as Executive is an employee of the Company or any successor thereto or affiliate thereof, but in no event later than ten (10) years following the Grant Date. For purposes hereof, “Change of Control” shall have the same meaning and be determined in the same manner as set forth in the Optionee’s employment agreement with the Company.

6. Adjustment in Shares . Should any change be made to the Common Stock by reason of any stock split, stock dividend, recapitalization, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without Autobytel’s receipt of

 

3


consideration, the Company shall make appropriate equitable adjustments to (i) the number and/or class of securities subject to the Option and (ii) the Exercise Price in order to reflect such change and thereby preclude a dilution or enlargement of benefits hereunder; provided , however , that the aggregate Exercise Price shall remain the same.

7. Stockholder Rights . The holder of the Option shall not have any stockholder rights with respect to the Shares until such person shall have exercised the Option, paid the Exercise Price and become a holder of record of the purchased Shares.

8. Manner of Exercising Option .

(a) In order to exercise the Option for all or any part of the Shares for which the Option is at the time exercisable, Optionee or, in the case of exercise after Optionee’s death, Optionee’s executor, administrator, heir or legatee, as the case may be, must take the following actions:

(i) The Secretary of Autobytel shall be provided with written notice of the Option exercise (the “Exercise Notice”) in substantially the form of Exhibit I attached hereto, in which there is specified the number of Shares to be purchased under the exercised Option.

(ii) The Exercise Price for the purchased Shares shall be paid in one or more of the following alternative forms:

 

    cash or check made payable to Autobytel’s order; or

 

    Shares of Common Stock held by Optionee (or any other person or persons exercising the Option) for the requisite period necessary to avoid a charge to Autobytel’s earnings for financial reporting purposes and valued at Fair Market Value on the Exercise Date; or

 

    if established by Autobytel and permitted under applicable law (including the financial accounting rules associated with avoiding additional financial expense through the method of exercise), through a “same day sale” commitment from Optionee and a broker-dealer selected by Autobytel whereby the Optionee irrevocably elects to exercise the Option and to sell a portion of the Shares so purchased sufficient to pay for the total Exercise Price for the Shares being exercised and whereby the broker-dealer irrevocably commits upon receipt of such Shares to forward the total Exercise Price for the Shares being exercised directly to Autobytel plus the applicable Federal, state and local income taxes required to be withheld by Autobytel by reason of such exercise.

(iii) Appropriate documentation evidencing the right to exercise the Option shall be furnished to Autobytel if the person or persons exercising the Option is other than Optionee.

(iv) Appropriate arrangement must be made with Autobytel for the satisfaction of all Federal, state and local income tax withholding requirements applicable to the Option exercise.

 

4


(b) Except to the extent the sale and remittance procedure specified above is utilized in connection with the exercise of the Option, payment of the Exercise Price for the purchased Shares must accompany the Exercise Notice delivered to Autobytel in connection with the Option exercise.

(c) As soon as practicable after the Exercise Date, Autobytel shall issue to or on behalf of Optionee (or any other permitted person or persons exercising the Option) a certificate or certificates representing the purchased Shares. The right to receive Shares under this Agreement may not be assigned, transferred, pledged or otherwise disposed of in any way by the Optionee (other than by will or the laws of descent and distribution).

(d) In no event may the Option be exercised for fractional Shares.

9. No Impairment of Rights . This Agreement shall not in any way affect the right of Autobytel to adjust, reclassify, reorganize or otherwise make changes in its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets.

10. Compliance with Laws and Regulations .

(a) The exercise of the Option and the issuance of the Shares upon such exercise shall be subject to compliance by Autobytel and Optionee with all applicable requirements of law relating thereto and with all applicable regulations of any stock exchange (or the Nasdaq National Market, if applicable) on which the Common Stock may be listed for trading at the time of such exercise and issuance.

(b) The inability of Autobytel to obtain approval from any regulatory body having authority deemed by Autobytel to be necessary to the lawful issuance and sale of any Common Stock pursuant to the Option shall relieve Autobytel of any liability with respect to the non-issuance or sale of the Common Stock as to which such approval shall not have been obtained. However, Autobytel shall use its best efforts to obtain all such applicable approvals.

11. Successors and Assigns . Except to the extent otherwise provided in Paragraph 4(a) or 5, the provisions of this Agreement shall inure to the benefit of, and be binding upon, Autobytel and its successors and assigns and Optionee, Optionee’s assigns and the legal representatives, heirs and legatees of Optionee’s estate.

12. Governing Law . The interpretation, performance, and enforcement of this Agreement shall be governed by the laws of the State of California without resort to its conflict-of-laws rules.

13. Non-Statutory Stock Options . The Option granted hereunder is not intended to be an incentive stock option within the meaning of Section 422 of the Code.

 

5


14. No Right to Continued Service . Nothing in this Agreement shall confer upon Optionee any right to continue in the Service of Autobytel or shall interfere with or restrict in any way the rights of Autobytel which are hereby expressly reserved, to discharge Optionee at any time for any reason whatsoever, with or without Cause.

15. Notices . Any notice required to be given or delivered to Autobytel under the terms of this Agreement shall be in writing and addressed to Autobytel at its principal corporate offices. Any notice required to be given or delivered to Optionee shall be in writing and addressed to Optionee at the most recent address reflected in Autobytel’s employment records. All notices shall be deemed effective upon personal delivery or upon deposit in the U.S. mail, postage prepaid and properly addressed to the party to be notified.

 

6


16. Administration of Option . The Board shall have full discretion to interpret all provisions of this Option, and all decisions of the Board regarding the Option shall be binding on all parties.

IN WITNESS WHEREOF , the parties have executed this Agreement as of the day and year first above written.

 

AUTOBYTEL INC.
By:   /s/ Michael Fuchs
  Name:   Michael Fuchs
  Title:   Chairman
OPTIONEE
  /s/ James E. Riesenbach
  James E. Riesenbach
  Optionee

 

7


EXHIBIT I

NOTICE OF EXERCISE

I hereby notify Autobytel Inc. (“Autobytel”) that I elect to purchase               shares of Autobytel’s Common Stock (the “Purchased Shares”) at the Option exercise price of $              per share (the “Exercise Price”) pursuant to that certain Option (the “Option”) granted to me pursuant to Autobytel’s inducement Option grant.

Concurrently with the delivery of this Exercise Notice to the Secretary of Autobytel, I shall hereby pay to Autobytel the Exercise Price for the Purchased Shares in accordance with the provisions of my agreement with Autobytel evidencing the Option and shall deliver whatever additional documents may be required by such agreement as a condition for exercise. Alternatively, I may utilize the special broker/dealer sale and remittance procedure specified in my agreement to effect payment of the Exercise Price for any Purchased Shares in which I am vested at the time of exercise to the extent established by Autobytel and permitted by the terms of the Option grant agreement and applicable law (including the financial accounting rules associated with avoiding additional financial expense through the method of exercise).

                 , 200     

Date

 

       
  Optionee   
  Address:      

Print name in exact manner

it is to appear on the

stock certificate:

    
    

Address to which certificate

is to be sent, if different

from address above:

    
    

Social Security Number:

    

 

8


APPENDIX

The following definitions shall be in effect under the Agreement:

A. Agreement shall mean this Inducement Stock Option Agreement.

B. Board shall mean Autobytel’s Board of Directors.

C. Code shall mean the Internal Revenue Code of 1986, as amended.

D. Common Stock shall mean Autobytel’s common stock, par value $0.001 per share.

E. Exercise Date shall mean the date on which the Option shall have been exercised in accordance with Paragraph 8 of the Agreement.

F. Exercise Price shall mean $4.68 per Share.

G. Expiration Date shall mean the date on which the Option term expires as specified in Paragraph 2.

H. Fair Market Value per share of Common Stock on any relevant date shall be determined in accordance with the following provisions:

(i) If the Common Stock is at the time traded on the Nasdaq National Market, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question, as the price is reported by the National Association of Securities Dealers on the Nasdaq National Market or any successor system. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.

(ii) If the Common Stock is at the time listed on any Stock Exchange, then the Fair Market Value shall be the closing selling price per share of Common Stock on the date in question on the Stock Exchange determined by the Board to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no closing selling price for the Common Stock on the date in question, then the Fair Market Value shall be the closing selling price on the last preceding date for which such quotation exists.

(iii) If the Common Stock is not at the time traded on any Stock Exchange and is not reported on the Nasdaq National Market or any successor system, then the Fair Market Value shall be the average between the highest bid and lowest asked prices for the Common Stock on the relevant date by an established quotation service for over-the-counter securities.

(iv) If the Common Stock is not at the time traded on any Stock Exchange, is not reported on the Nasdaq National Market or a successor system, and is not otherwise publicly traded,

 

9


then the Fair Market Value shall be established by the Board acting in good faith and taking into consideration all factors which it deems appropriate, including, without limitation, recent sale or offer prices for the Common Stock in private arms-length transactions.

I. Grant Date shall mean the date designated in the preamble to the Agreement granting the Option.

J. Optionee shall mean the person to whom the Option is granted as specified in the Agreement.

K. Service shall mean Optionee’s service with Autobytel, whether as an employee, director or consultant, which has not been interrupted or terminated. Optionee’s Service shall not be deemed to have terminated merely because of a change in the capacity in which Optionee renders service to Autobytel.

L. Shares shall mean the number of shares of Common Stock subject to the Option.

M. Stock Exchange shall mean the American Stock Exchange or the New York Stock Exchange.

N. Vesting Schedule shall mean the vesting schedule specified in Paragraph 3 of the Agreement, pursuant to which Optionee will vest in the Shares in one or more installments over his or her period of Service, subject to acceleration in accordance with the provisions of the Agreement.

 

10

Exhibit 5.1

 

June 15, 2006

   26600.00050

Autobytel Inc.

18872 MacArthur Boulevard

Irvine, California 92612-1400

 

  Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We are furnishing this opinion of counsel to Autobytel Inc., a Delaware corporation (the “ Company ”), for filing as Exhibit 5.1 to the Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed, on or about June 16, 2006, by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended, in connection with the registration of an aggregate of 3,000,000 shares (the “ Shares ”) of the Company’s Common Stock, par value $0.001 per share, 1,000,000 of which are issuable under the Company’s Inducement Stock Option Agreement with James E. Riesenbach (the “ Riesenbach Agreement ”) dated March 20, 2006, and 2,000,000 of which are issuable under the Company’s 2006 Inducement Stock Option Plan adopted by the directors of the Company on June 12, 2006 (the “ Plan ” and together with the Riesenbach Agreement, the “ Plans ”).

We have examined the Plans and exhibits thereto, as applicable, the Company’s certificate of incorporation and bylaws, each as amended to date, and the originals, or copies certified or otherwise identified, 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 such other instruments and documents as we deemed necessary, as a basis for the opinions hereinafter expressed. In addition, we have made such investigations of law as we have deemed necessary or appropriate as a basis for the opinion set forth herein.

In such examination, we have assumed: (i) the genuineness of all signatures on all documents submitted to us; (ii) the authenticity and completeness of all documents, corporate records, certificates and other instruments submitted to us; (iii) that photocopy, electronic, certified, conformed, facsimile and other copies submitted to us of original documents, corporate records, certificates and other instruments conform to the originals, and that all such originals were authentic and complete; (iv) the legal capacity of all individuals executing documents; (v) the due authorization, execution and delivery of all documents where due authorization, execution and delivery are a prerequisite to the effectiveness thereof; (vi) that the statements contained in the certificates and comparable documents of public officials, officers and representatives of the Company and other persons on which we have relied for the purposes of this opinion are true and correct; and


Autobytel Inc.

June 15, 2006

Page 2

(vii) that the officers and directors of the Company have properly exercised their fiduciary duties. As to all questions of fact material to this opinion and as to the materiality of any fact or other matter referred to herein, we have relied (without independent investigation) upon certificates or comparable documents of officers and representatives of the Company.

Our knowledge of the Company and its legal and other affairs is limited by the scope of our engagement, which scope includes the delivery of this letter. We do not represent the Company with respect to all legal matters or issues. The Company may employ other independent counsel and, to our knowledge, handles certain legal matters and issues without the assistance of independent counsel.

Based upon and in reliance on the foregoing, and subject to the limitations, qualifications and exceptions set forth herein, we are of the opinion that the Shares are duly authorized and, when purchased and paid for as required under the Plans and pursuant to the agreements which accompany a grant under the Plans, will be validly issued, fully paid and nonassessable.

Without limiting any of the other limitations, exceptions and qualifications stated elsewhere herein, we express no opinion with respect to the applicability or effect of the laws of any jurisdiction other than the Delaware General Corporation Law, the applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws, as in effect as of the date hereof.

This opinion letter deals only with the specified legal issues expressly addressed herein, and you should not infer any opinion that is not explicitly addressed herein from any matter stated in this letter.

This opinion letter is rendered solely to you in connection with the issuance of the Shares pursuant to the Plans. This opinion letter may not be relied upon by you for any other purpose or delivered to or relied upon by any other person without our prior written consent. This opinion letter speaks as of the date hereof and through the effectiveness of the Registrations Statement; however, we assume no obligation to advise you or any other person or entity hereafter with regard to any change in the circumstances or the law that


Autobytel Inc.

June 15, 2006

Page 3

may bear on the matters set forth herein after the effectiveness of the Registration Statement even though the change may affect the legal analysis, legal conclusion or other matters in this opinion letter.

We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to the Registration Statement.

Very truly yours,

/s/ PAUL, HASTINGS, JANOFSKY & WALKER LLP

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 16, 2006 relating to the consolidated financial statements, financial statement schedule, management’s assessment of the effectiveness of internal control over financial reporting and the effectiveness of internal control over financial reporting of Autobytel Inc., which appears in Autobytel Inc.’s Annual Report on Form 10-K for the year ended December 31, 2005.

/s/ PricewaterhouseCoopers LLP

PricewaterhouseCoopers LLP

Irvine, CA

June 16, 2006