Exhibit 10.3
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 20, 2008, by
and between AUTOBYTEL INC., a Delaware corporation (the “
Company ”), and Monty Houdeshell (the “
Executive ”).
Recitals
WHEREAS, the Company and the
Executive entered into that certain Employment Agreement, dated as
of January 30, 2007 (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 3.2.
Section 3.2 is amended and restated in its entirety to read as
follows:
“3.2 BONUS.
The Board may, in it sole discretion, provide the Executive with
the opportunity to earn an annual bonus (“ Bonus
”) for each fiscal year of the Company, occurring in whole or
in part during the Term of sixty percent (60%) (the “
Target ”) of the Executive’s Base Salary for
such fiscal year. The Bonus, if any, payable to the Executive shall
be based on such criteria as may be established by the Board, in
its sole discretion, from time to time. The Executive shall
participate in all other short term and long term bonus or
incentive plans or arrangements in which other senior executives of
the Company are eligible to participate from time to time. Any
bonus shall be paid as promptly as practicable following the end of
the fiscal year, but not later than two and a half (2
1
/
2 ) months immediately following
the end of such fiscal year. The provisions of this
Section 3.2 shall be subject to the provisions of
Sections 3.3 and 3.4 .”
1.2 AMENDMENT TO SECTION 3.5. The
first sentence of Section 3.5 of the Employment
Agreement is amended by inserting “that qualifies as a
“change in control event” under Treasury Regulation
Section 1.409A-3(i)(5)” immediately after “a
Change of Control (as defined in Section 3.6
)”.
1.3 AMENDMENT TO ARTICLE 5.
Article 5 of the Employment Agreement is amended by adding a
new Section 5 . 4 , to read as
follows:
“5.4 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 30 days, and shall be reimbursed promptly, but no later than
90 days after the Company receives such reimbursement
request.”
1.4 AMENDMENT TO SECTION 6.2.
Section 6.2 of the Employment Agreement is amended and
restated in its entirety to read as follows:
“6.2 TERMINATION WITHOUT CAUSE
OR FOR GOOD REASON. Subject to Section 6.4 , the
Company shall have the right, at any time in its sole and
subjective 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 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 Executive Vice President,
Finance or Executive Vice President and Chief Financial Officer of
the Company, as the case may be, as described in
Section 2.1 hereof; (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) requires the
Executive to report to someone other than the Chief Executive
Officer; or (D) involves or results in any failure by the
Company to comply with any provision of this Agreement (each a
“Good Reason” ). Notwithstanding anything
herein, to qualify as Good Reason, the Executive must give the
Company notice of the condition that gives rise to the Good Reason
within sixty (60) days of the occurrence of the condition, and
the Company must have at least thirty (30) days to remedy the
condition. In the event the Company or the Executive shall exercise
the termination right granted pursuant to this
Section 6.2 , then except as set forth in the proviso
below, neither party shall have any rights or obligations under
Article 2 , Sections 3.1 and 3.2 , or
Articles 4 and 5 ; provided, however, that, subject
to Section 3.5 , the Company shall pay to the Executive
(a) a lump sum payment equal to twelve (12) months of the
Executive’s Base Salary in effect at the time of termination
plus the Bonus (at the Target level) within ten days after
the
