Exhibit 10.2
EXECUTION VERSION
AMENDMENT NO. 1 TO EMPLOYMENT
AGREEMENT
This Amendment No. 1 to
Employment Agreement (this “ Amendment No. 1
”) is made and entered into as of December 10, 2008, by
and between AUTOBYTEL INC., a Delaware corporation (the “
Company ”), and James E. Riesenbach (the “
Executive ”).
Recitals
WHEREAS, the Company and the
Executive entered into that certain Employment Agreement, dated as
of March 1, 2006 (the “ Employment Agreement
”); and
WHEREAS, the Company and the
Executive desire to amend the Employment Agreement as set forth in
this Amendment No. 1.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, and with
reference to the above recitals, the parties hereby agree as
follows:
ARTICLE 1
AMENDMENTS
1.1 AMENDMENT TO SECTION 4.1. The
last sentence of Section 4.1 of the Employment
Agreement is deleted and replaced with the following:
“In addition, the Executive
shall be reimbursed for up to $8,500 per year during the Term for
tax and estate planning services upon submission of appropriate
documentation to enable the Company to deduct such expenses (if
otherwise deductible) subject to the Executive’s
understanding that any reimbursements for expenses Executive incurs
in a calendar year must be submitted for reimbursement by the
Executive within thirty (30) days, and shall be reimbursed
promptly, but no later than ninety (90) days after the Company
receives such reimbursement request.”
1.2 AMENDMENT TO ARTICLE 5.
Article 5 of the Employment Agreement shall be amended by
adding a new Section 5.6 , to read as
follows:
“5.6 PAYMENT. Notwithstanding
anything in this Agreement to the contrary, any reimbursements or
other payments made under this Article 5 must be submitted
for reimbursement by the Executive within thirty (30) days,
and shall be reimbursed promptly, but no later than ninety
(90) days after the Company receives such reimbursement
request.”
1.3 AMENDMENT TO SECTION 6.2.
Section 6.2 of the Employment Agreement shall be
amended and restated in its entirety to read as follows:
“6.2 TERMINATION WITHOUT CAUSE
OR GOOD REASON. Subject to Section 6.4 , the Board
acting for the Company shall have the right, at any time in its
sole discretion, to terminate the Executive’s employment
under this Agreement without Cause upon not less than
thirty (30) days prior written notice to the Executive. The
term “ termination without Cause ” shall mean
the termination by the Company of the Executive’s employment
for any reason other than those expressly set forth in
Section 6.1 , or no reason at all, and shall
also
mean the Executive’s decision
to terminate his employment under this Agreement (and he hereby has
such right) by reason of any act, decision or omission by the
Company or the Board that: (A) materially and adversely
modifies, reduces, changes, or restricts the Executive’s
salary, bonus opportunities, options or other compensation benefits
or perquisites, or the Executive’s authority, functions,
services, duties, rights, and privileges as, or commensurate with
the Executive’s position as the President and Chief Executive
Officer of the Company as described in Section 2.1 ;
(B) relocates the Executive without his consent from the
Company’s offices located at 18872 MacArthur Boulevard,
Irvine, California, 92612-1400 to any other location in excess of
fifty (50) miles beyond the geographic limits of Irvine,
California; (C) deprives the Executive of his titles and
positions of President and Chief Executive Officer; (D) if
prior to the expiration of the Term results in the Company
proffering a new employment agreement to the Executive in order to
extend the Term and the terms and conditions of such agreement
(i) as they relate to the Executive’s salary, bonus
opportunity and benefits (assuming the Executive qualifies for such
benefits) are not at least as favorable in all material respects to
the Executive as the most favorable salary, bonus opportunity and
benefits payable to the Executive in any year during the Term or
(ii) materially and adversely change the Executive’s
authority, functions, services, duties, rights and privileges as,
or commensurate with the Executive’s position as the
President and Chief Executive Officer as set forth in this
Agreement; (E) results in the Executive not being elected to
the Board as a Class II Director upon the Commencement Date and/or
not being nominated by the Board to stand for election as a Class
II Director at the 2006 annual meeting of the Company;
(F) r
