Attached files
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Exhibit 10.47
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Glenn
E. Fuller
Executive Vice President, Chief Legal and Administrative
Officer and Secretary
Direct Line: 949.862.1392
Facsimile: 949.797.0484
glennf@autobytel.com
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Effective
as of September 17, 2010
Ralph
Smith
[Personal
Residence Address Redacted]
Re: Offer of Employment
Dear
Ralph:
This
letter confirms the terms and conditions upon which Autobytel Inc.,
a Delaware corporation (“Company”) is offering employment
to you. Note that this offer of employment and your employment by
the Company is contingent upon various conditions and requirements
that must be completed prior to commencement of employment, which
conditions and requirements are set forth below.
1. Employment.
(a)
Effective as of the date you commence employment with the Company
(“Commencement
Date”), which date is anticipated to be September 17,
2010, the Company will employ you as Manager, Search Engine
Marketing. In such capacity, you will report to such person as may
be designated by the Company from time to time.
(b)
Your employment is at will and not for a specified term and may be
terminated by the Company or you at any time, with or without cause
or good reason and with or without prior, advance notice. This
“at-will” employment status will remain in effect
throughout the term of your employment by the Company and cannot be
modified except by a written amendment to this offer letter that is
executed by both parties (which in the case of the Company, must be
executed by the Company’s Chief Legal Officer) and that
expressly negates the “at-will” employment
status.
(c) You
will be governed by all Company policies and procedures, as such
policies and procedures may exist from time to time, generally
applicable to all Company employees.
(d)
Upon termination of your employment by either party, whether with
or without cause or good reason, you will be entitled to receive
only that portion of your compensation, benefits, reimbursable
expenses and other payments and benefits required by applicable law
or by the Company’s compensation or benefit plans, policies
or agreements in which you participate and pursuant to which you
are entitled to receive the compensation or benefits thereunder
under the circumstances of and at the time of such termination
(subject to and payable in accordance with the terms and conditions
of such plans, policies or agreements). You agree to assist and
cooperate (including, but not limited to, providing information to
the Company and/or testifying in a proceeding) in the investigation
and handling of any internal investigation, legislative matter, or
actual or threatened court action, arbitration, administrative
proceeding, or other claim involving any matter that arose during
the period of your employment. You shall be reimbursed for
reasonable expenses actually incurred in the course of rendering
such assistance and cooperation. Your agreement to assist and
cooperate shall not affect in any way the content of information or
testimony provided by you.
2. Compensation,
Benefits and Expenses.
(a) As
compensation for the services to be rendered by you pursuant to
this agreement, the Company hereby agrees to pay you at a
Semi-Monthly Rate equal to Two Thousand Seven Hundred Eight Dollars
and Thirty-Four Cents ($2,708.34). The Semi-Monthly Rate shall be
paid in accordance with the normal payroll practices of the
Company.
(b) You
may participate in commission plans that may be adopted by the
Company for you from time to time. Should such a commission plan be
adopted for any period, your target commission opportunity,
specific objectives and commission plan details will be set forth
in a written commission plan and furnished to you. If your
participation in any commission plan is less than a full Plan Term,
your award for that Plan Term may be prorated for the period of
time you were employed during the applicable Plan Term in the
discretion of the Company. You understand that commission plans,
their structure and components, specific target commission
opportunities and objectives, and the achievement of objectives and
payouts, if any, thereunder are subject to the Company’s sole
discretion. You understand that commission plans may be modified,
amended or terminated at any time by the Company.
(c)
Subject to approval by the Company’s Board of Directors or a
committee thereof, it is anticipated that upon commencement of
employment you may be granted options to acquire shares of the
Company’s common stock. The number of shares, exercise price,
vesting, exercise, termination and other terms and conditions of
these options shall be governed by and subject to the terms and
conditions of the applicable stock option plan and stock option
award agreement. The granting and exercise of such options are also
subject to compliance with applicable federal and state securities
laws.
(d) You shall
be entitled to participate in such ordinary and customary benefits
plans afforded generally to persons employed by the Company at your
level (subject to the terms and conditions of such benefit plans,
your making of any required employee contributions required for
your participation in such benefits, your ability to qualify for
and satisfy the requirements of such benefits plans).
(e) You
are solely responsible for the payment of any tax liability that
may result from any compensation, payments or benefits that you
receive from the Company. The Company shall have the right to
deduct or withhold from the compensation due to you hereunder any
and all sums required by applicable federal, state, local or other
laws, rules or regulations, including, without limitation federal
and state income taxes, social security or FICA taxes, and state
unemployment taxes, now applicable or that may be enacted and
become applicable during your employment by the
Company.
3. Pre-Hire Conditions
and Requirements. You have previously submitted an
Application for Employment and a Consent to Conduct a Background
Check. This offer of employment and your employment by the Company
is contingent upon various conditions and requirements for new
hires that must be completed prior to commencement of employment.
These conditions and requirements include, among other things, the
following:
(i)
Successful completion of the Company’s background
check.
(ii)
Your execution and delivery of this offer letter together with the
Company’s Employee Confidentiality and Non-Compete Agreement
and Mutual Agreement to Arbitrate, the forms of which accompany
this offer letter and which are hereby incorporated herein by
reference. Please sign this offer letter and these other documents
and return the signed original documents to me.
(iii)
Your execution and delivery of your acknowledgment and agreement to
the Company’s Employee Handbook, Securities Trading Policy,
Code of Conduct and Ethics for Employees, Officer and Directors,
and Sexual Harassment Policy. Upon your acceptance of this offer
letter, you will be provided instructions how to access online,
sign and return these documents.
(iv)
Your compliance with all applicable federal and state laws, rules,
regulation and orders, including (1) your execution and delivery of
an I-9 Employment Eligibility Verification together with complying
verification documents; and (2) your execution and delivery of a
W-4 Employee’s Withholding Allowance Certificate. Upon your
acceptance of this offer letter, you will be provided instructions
how to access online, sign and return these documents.
The
documents referenced in Sections 3(ii), (iii) and (iv) above are
referred to herein as the “Standard Employee
Documents.”
4. Prior Employment
Requirements or Obligations. The Company requires that you
comply with all terms and conditions of any employment or other
agreements or legal obligations or requirements you may have with
or owe to your current or former employers. In particular, the
Company requires that you comply with the terms and conditions of
any confidentiality or non-disclosure agreements, policies or other
obligations You may owe your former employers, and Employee shall
not disclose to the Company or provide the Company with copies of
any confidential or proprietary information or trade secrets of any
former employer. The Company expects that you will comply with any
notification requirements relating to the termination of your
employment with your current employer and will adjust the
anticipated Commencement Date accordingly to accommodate any
required notice period. By execution below, you represent and
warrant to Company that your employment with the Company will not
violate the terms and conditions of any agreement entered into by
you prior to your employment with Company.
5. Amendments and
Waivers. This agreement may be amended, modified,
superseded, or cancelled, and the terms and conditions hereof may
be waived, only by a written instrument signed by the parties
hereto or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any
right, power, or privilege hereunder will operate as a waiver
thereof, nor will any waiver on the part of any party of any right
hereunder, nor any single or partial exercise of any rights
hereunder, preclude any other or further exercise thereof or the
exercise of any other right hereunder.
6. Notices. Any
notice required or permitted under this agreement will be
considered to be effective in the case of (i) certified mail, when
sent postage prepaid and addressed to the party for whom it is
intended at its address of record, three (3) days after deposit in
the mail; (ii) by courier or messenger service, upon receipt by
recipient as indicated on the courier's receipt; or (iii) upon
receipt of an Electronic Transmission by the party that is the
intended recipient of the Electronic Transmission. The record
addresses, facsimile numbers of record, and electronic mail
addresses of record for you are set forth on the signature page to
this agreement and for the Company as set forth in the letterhead
above and may be changed from time to time by notice from the
changing party to the other party pursuant to the provisions of
this Section 6. For purposes of this Section 6, "Electronic Transmission” means a
communication (i) delivered by facsimile, telecommunication or
electronic mail when directed to the facsimile number of record or
electronic mail address of record, respectively, which the intended
recipient has provided to the other party for sending notices
pursuant to this Agreement and (ii) that creates a record of
delivery and receipt that is capable of retention, retrieval, and
review, and that may thereafter be rendered into clearly legible
tangible form.
7. Choice of
Law. This agreement, its construction and the determination
of any rights, duties or remedies of the parties arising out of or
relating to this agreement will be governed by, enforced under and
construed in accordance with the laws of the State of Florida,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws of such state.
8. Severability.
Each term, covenant, condition, or provision of this agreement will
be viewed as separate and distinct, and in the event that any such
term, covenant, condition or provision will be deemed to be invalid
or unenforceable, the arbitrator or court finding such invalidity
or unenforceability will modify or reform this agreement to give as
much effect as possible to the terms and provisions of this
agreement. Any term or provision which cannot be so modified or
reformed will be deleted and the remaining terms and provisions
will continue in full force and effect.
9. Interpretation.
Every provision of this agreement is the result of full
negotiations between the parties, both of whom have either been
represented by counsel throughout or otherwise been given an
opportunity to seek the aid of counsel. No provision of this
agreement shall be construed in favor of or against any of the
parties hereto by reason of the extent to which any such party or
its counsel participated in the drafting thereof. Captions and
headings of sections contained in this agreement are for
convenience only and shall not control the meaning, effect, or
construction of this agreement. Time periods used in this Agreement
shall mean calendar periods unless otherwise expressly
indicated.
10. Entire
Agreement. This Agreement, together with the Standard
Employee Documents, is intended to be the final, complete and
exclusive agreement between the parties relating to the employment
of you by the Company and all prior or contemporaneous
understandings, representations and statements, oral or written,
are merged herein. No modification, waiver, amendment, discharge or
change of this agreement shall be valid unless the same is in
writing and signed by the party against which the enforcement
thereof is or may be sought.
11. Counterparts;
Facsimile or PDF Signature. This agreement may be executed
in counterparts, each of which will be deemed an original hereof
and all of which together will constitute one and the same
instrument. This agreement maybe executed by facsimile or PDF
signature by either party and such signature shall be deemed
binding for all purposes hereof, without delivery of an original
signature being thereafter required.
This
offer shall expire seven (7) calendar days from the date of this
offer letter. Should you wish to accept this offer and its terms
and conditions, please confirm your understanding of, agreement to,
and acceptance of the foregoing by signing and returning to the
undersigned the duplicate copy of this offer letter enclosed
herewith.
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Autobytel Inc., a
Delaware corporation
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By:
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/s/ Glenn E.
Fuller
Glenn E.
FullerEVP, Chief Legal
and Administrative
Officer and
Secretary
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Accepted
and Agreed
as of
the date
first
written above:
/s/ Ralph Smith
Ralph
Smith
[Personal
Residence Address Redacted]
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Autobytel
Inc.
Human
Resources Department
18872
MacArthur Boulevard, Suite 200
Irvine,
CA 92612-1400
Voice: (949)
225-4572
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DATE:
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Effective
as of January 1, 2013
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TO:
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Ralph
Smith
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FROM:
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Glenn
Fuller – EVP, Chief Legal and Administrative Officer and
Secretary
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CC:
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William
Ferriolo – SVP, Consumer Acquisition
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RE:
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Promotion
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It is a
pleasure to inform you of your promotion to Sr. Director, Search
Engine Marketing at Autobytel Inc. In this position you will
continue to report to William Ferriolo, Senior Vice President,
Consumer Acquisition. Following is a summary of your
promotion.
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New
Position:
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Sr. Director,
Search Engine Marketing
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Semi-monthly
Rate:
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$5,000 ($120,000
Approximate Annually)
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Effective
Date:
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January 1,
2013
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Annual
Incentive
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Opportunity:
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You shall be
entitled to participate in annual incentive compensation plans, if
any, that may be adopted by the Company from time to time and that
are afforded generally to persons employed by the Company at your
position level (subject to the terms and conditions of any such
annual incentive compensation plans). Should such an annual
incentive compensation plan be adopted for any annual period, your
target annual incentive compensation opportunity will be as
established by the Company for each annual period, which may be up
to 20% of your annualized rate (i.e., 24 X Semi-monthly Rate) based
on achievement of objectives specified by the Company each annual
incentive compensation period (which may include Company-wide
performance objectives, divisional or department performance
objectives and/or individual performance objectives, allocated
between and among such performance objectives as the Company may
determine). Specific annual incentive compensation plan details,
target incentive compensation opportunity and objectives for each
annual compensation plan period will be established each year.
Awards under annual incentive plans may be prorated for a variety
of factors, including time employed by the Company during the year,
adjustments in base compensation or target award percentage changes
during the year, and unpaid leaves. You understand that the
Company’s annual incentive compensation plans, their
structure and components, specific target incentive compensation
opportunities and objectives, the achievement of objectives and the
determination of actual awards and payouts, if any, thereunder are
subject to the sole discretion of the Company’s Board of
Directors, or a committee thereof.
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Your
promotion is conditioned upon your acceptance of the foregoing
modifications to the terms and conditions of your employment with
Autobytel Inc. If you accept these modifications to the terms of
your employment, please acknowledge your acceptance in the space
provided below.
As a
reminder, your employment is at will and not for a specified term
and may be terminated by the Company or you at any time, with or
without cause or good reason and with or without prior, advance
notice. This “at-will” employment status will remain in
effect throughout the term of your employment by the Company and
cannot be modified except by a written amendment to this promotion
letter that is executed by both parties (which in the case of the
Company, must be executed by the Company’s Chief Legal
Officer) and that expressly negates the “at-will”
employment status.
Please
feel free to call if you have any questions.
Autobytel Inc.
/s/ Glenn Fuller
Glenn
Fuller
EVP,
Chief Legal and Administrative Officer and Secretary
Accepted
and Agreed:
/s/ Ralph Smith
Ralph
Smith
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Autobytel
Inc.
Human Resources
Department
18872
MacArthur Boulevard, Suite 200
Irvine,
CA 92612-1400
Voice:
(949) 225-4572
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DATE:
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Effective
as of July 1, 2013
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TO:
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Ralph
Smith
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FROM:
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Glenn
Fuller – EVP, Chief Legal and Administrative Officer and
Secretary
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CC:
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William
Ferriolo – SVP, Consumer Acquisition
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RE:
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Promotion
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It is a
pleasure to inform you of your promotion to Vice President,
Consumer Acquisitions at Autobytel Inc. In this position you will
continue to report to William Ferriolo, Senior Vice President,
Consumer Acquisitions. Following is a summary of your
promotion.
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New
Position:
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Vice President,
Consumer Acquisitions
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Semi-monthly
Rate:
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$5,208.34 ($125,000
Approximate Annually)
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Effective
Date:
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July 1,
2013
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Annual
Incentive
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Opportunity:
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You shall be
entitled to participate in annual incentive compensation plans, if
any, that may be adopted by the Company from time to time and that
are afforded generally to persons employed by the Company at your
position level (subject to the terms and conditions of any such
annual incentive compensation plans). Should such an annual
incentive compensation plan be adopted for any annual period, your
target annual incentive compensation opportunity will be as
established by the Company for each annual period, which may be up
to 30% of your annualized rate (i.e., 24 X Semi-monthly Rate) based
on achievement of objectives specified by the Company each annual
incentive compensation period (which may include Company-wide
performance objectives, divisional or department performance
objectives and/or individual performance objectives, allocated
between and among such performance objectives as the Company may
determine). Specific annual incentive compensation plan details,
target incentive compensation opportunity and objectives for each
annual compensation plan period will be established each year.
Awards under annual incentive plans may be prorated for a variety
of factors, including time employed by the Company during the year,
adjustments in base compensation or target award percentage changes
during the year, and unpaid leaves. You understand that the
Company’s annual incentive compensation plans, their
structure and components, specific target incentive compensation
opportunities and objectives, the achievement of objectives and the
determination of actual awards and payouts, if any, thereunder are
subject to the sole discretion of the Company’s Board of
Directors, or a committee thereof.
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Your
promotion is conditioned upon your acceptance of the foregoing
modifications to the terms and conditions of your employment with
Autobytel Inc. If you accept these modifications to the terms of
your employment, please acknowledge your acceptance in the space
provided below.
As a
reminder, your employment is at will and not for a specified term
and may be terminated by the Company or you at any time, with or
without cause or good reason and with or without prior, advance
notice. This “at-will” employment status will remain in
effect throughout the term of your employment by the Company and
cannot be modified except by a written amendment to this promotion
letter that is executed by both parties (which in the case of the
Company, must be executed by the Company’s Chief Legal
Officer) and that expressly negates the “at-will”
employment status.
Please
feel free to call if you have any questions.
Autobytel Inc.
/s/Glenn Fuller
Glenn
Fuller
EVP,
Chief Legal and Administrative Officer and Secretary
Accepted
and Agreed:
/s/Ralph Smith
Ralph
Smith
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Autobytel
Inc.
Human
Resources Department
18872
MacArthur Boulevard, Suite 200
Irvine,
CA 92612-1400
Voice:
(949) 225-4572
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DATE:
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January
28, 2016
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TO:
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Ralph
Smith
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FROM:
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Glenn
Fuller – EVP, Chief Legal and Administrative Officer and
Secretary
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CC:
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William
Ferriolo - EVP, Chief Business Officer
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RE:
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Annual
Incentive Compensation Target
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It is a
pleasure to inform you of your annual incentive compensation
target. Following is a summary of your new employment
compensation.
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Position:
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VP, Consumer
Acquisition
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Semi-monthly
Rate:
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$7,708.34 ($185,000
Approximate Annually)
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Effective
Date:
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January 1,
2016
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Annual
Incentive
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Opportunity:
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You shall be
eligible to participate in annual incentive compensation plans, if
any, that may be adopted by the Company from time to time and that
are afforded generally to persons employed by the Company at your
employment level and position, geographic location and applicable
department or operations within the Company (subject to the terms
and conditions of any such annual incentive compensation plans).
Should such an annual incentive compensation plan be adopted for
any annual period, your target annual incentive compensation
opportunity will be as established by the Company in its sole
discretion for each annual period, which may be up to 35% your
annualized rate (i.e., X Semi-monthly Rate) based on achievement of
objectives specified by the Company each annual incentive
compensation period (which may include Company-wide performance
objectives; divisional, department or operations performance
objectives and/or individual performance objectives, allocated
between and among such performance objectives as the Company may
determine) and subject to adjustment by the Company based on the
Company’s evaluation and review of your overall individual
job performance in the sole discretion of the Company. Specific
annual incentive compensation plan details, target incentive
compensation opportunity and objectives for each annual
compensation plan period will be established each year. Awards
under annual incentive plans may be prorated by the Company in its
discretion for a variety of factors, including time employed by the
Company during the year, adjustments in base compensation or target
award percentage changes during the year, and unpaid time off. You
understand that the Company’s annual incentive compensation
plans, their structure and components, specific target incentive
compensation opportunities and objectives, the achievement of
objectives and the determination of actual awards and payouts, if
any, thereunder are subject to the sole discretion of the Company.
Awards, if any, under any annual incentive compensation plan shall
only be earned by you, an payable to you, if you remain actively
employed by the Company through the date on which award payouts are
made by the Company under the applicable annual incentive
compensation plan. You will not earn any such award if your
employment ends for any reason prior to that date.
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Your
annual incentive compensation change is conditioned upon your
acceptance of the foregoing modifications to the terms and
conditions of your employment with Autobytel Inc. If you accept
these modifications to the terms of your employment, please
acknowledge your acceptance in the space provided
below.
As a
reminder, your employment is at will and not for a specified term
and may be terminated by the Company or you at any time, with or
without cause or good reason and with or without prior, advance
notice. This “at-will” employment status will remain in
effect throughout the term of your employment by the Company and
cannot be modified except by a written amendment to this promotion
letter that is executed by both parties (which in the case of the
Company, must be executed by the Company’s Chief Legal
Officer) and that expressly negates the “at-will”
employment status.
Please
feel free to call if you have any questions.
Autobytel
Inc.
By:
/s/ Glenn
Fuller
Glenn
Fuller
EVP,
Chief Legal and Administrative Officer and Secretary
Accepted and
Agreed:
/s/ Ralph Smith
Ralph
Smith