Exhibit 10.79
E
MPLOYMENT
A
GREEMENT
This Employment Agreement (the
“Agreement”) is made and entered into, at Irvine,
California, as of February 8, 2002, by and between
Autobytel Inc. , a corporation duly organized under the laws
of the State of Delaware, with its principal offices at 18872
MacArthur Blvd., Second Floor, Irvine, California, 92612-1400, a
Delaware corporation, (hereinafter, collectively referred to as the
“Company”), and Mark Garms, domiciled at 1002 Glen Way,
Atlanta GA 30319.
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WHEREAS:
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Company desires
to employ Mark Garms (hereinafter, sometimes referred to herein as
“Employee”), as Director, Customer Experience for the
Company.
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WHEREAS:
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Employee
desires to be so employed by the Company, subject to the following
terms and conditions.
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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. TERM OF
EMPLOYMENT
Section 1.1
The Company hereby employs Mark
Garms as Director, Customer Experience, of the Company, on an
“at-will” basis and Employee hereby accepts such
employment by the Company, on such basis, commencing on
March 4, 2002.
ARTICLE 2. DUTIES AND OBLIGATIONS
OF EMPLOYEE
Section 2.1
Employee shall be employed as a full
time employee of the Company. In such capacity, Employee shall do
and perform all services, acts, or things necessary or advisable as
Director, Customer Experience of the Company, subject at all times
to all present and future policies and requirements of the Company
in connection with Company’s business. Employee shall perform
all services required hereunder to the best of his/her
ability.
ARTICLE 3. OBLIGATIONS OF THE
COMPANY
Section 3.1
The Company shall provide Employee
with the compensation, incentives, benefits, and business expense
reimbursement specified elsewhere in this Agreement. Employee and
the Company acknowledge that such compensation, incentives,
benefits, and business expense reimbursement are commensurate with
the duties and obligations required of Employee
hereunder.
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Autobytel
Inc.
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ARTICLE 4. COMPENSATION OF
EMPLOYEE
Section 4.1
As compensation for services to be
rendered by Employee pursuant to this Agreement, the Company hereby
agrees to pay Employee a semi-monthly (twenty-four (24) pay
periods per year) salary of $5,208.33 ($125,000.00 annually)
payable at such times or on such dates that employees of the
Company are regularly and customarily paid during a subsequent 12
month period.
Section 4.2
Additionally, Employee will be
granted stock options under one of the Company’s Stock Option
Plans to purchase 1,500 shares of the Company common stock at an
exercise price equal to the closing price on the first trading day
of the month following the date of hire or approval date, as
determined by the Company. So long as you are employed by the
Company or any subsidiary thereof, thirty-three and one third
percent (33 1/3%) shall vest and become exercisable twelve
(12) calendar months after the applicable vesting commencement
date, and one thirty-sixth (1/36) shall vest and become
exercisable at the end of each successive calendar month thereafter
for the following twenty-four (24) months.
Section 4.3
The Company shall have the right to
deduct or withhold from the compensation due to Employee hereunder
any and all sums required for federal income and social security
taxes and all state or local taxes now applicable or that may be
enacted and become applicable during the term of your
employment.
ARTICLE 5. EMPLOYEE
BENEFITS
Section 5.1
The Company agrees
that Employee shall be eligible to participate in the
company’s group benefits package. The Company will pay for
all or part of the premium costs based upon plan selection and
dependents’ covered. Medical, dental and life insurance
benefits are effective on the 1 st
of the
month following 30 days of employment.
Section 5.2
Employee shall be
eligible to participate in the Company’s 401(k) retirement
savings plan on the first enrollment period following 90 days of
employment. Enrollment in the Plan takes place on
January 1 st
, April 1
st
, July 1
st
and
October 1 st
of each
year.
Section 5.3
Paid vacation is provided to all
regular full-time Company personnel. Vacation is accrued monthly at
a rate equal to two (2) weeks (80 hours) per year during the
first five years of employment. After completing five
(5) years of employment, employees will begin to accrue at a
rate equal to three (3) weeks (120 hours) per year. Employees
begin accruing vacation in the first month in which they have
completed 120 hours of service. However, paid vacation may not be
taken until an employee has completed six (6) months of
service. Vacation taken prior to six (6) months will
be
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unpaid, and may only be taken with
supervisor approval. Only accrued, but unused vacation will be paid
out to employees in the event of termination.
Section 5.4
Regular full-time
employees are eligible for up to six (6) days of paid sick
time off per year. Employees who have been employed since
January 1 st
will be
eligible for the full six (6) days of paid sick time off.
Employees hired after the first of the year will receive a
pro-rated amount of time based upon their date of hire. Because
sick time does not accrue, balances are not paid out to an employee
in the event of termination.
ARTICLE 6. BUSINESS
EXPENSES
Section 6.1
The Company shall pay or reimburse
Employee for all reasonable and authorized business expenses
incurred by Employee during the term of employment; such payment or
reimbursement shall not be unreasonably withheld so long as said
business expenses have been incurred for and promote the business
of the Company and are normally and customarily incurred by
employees in comparable positions at other comparable businesses in
the same or similar market. Notwithstanding the above, the Company
shall not pay or reimburse Employee for the costs of any membership
fees or dues for private clubs, civic organizations, and similar
organizations or entities, unless and until such organizations and
the fees and costs associated therewith have been approved in
writing by the Board of Directors of the Company.
Section 6.2
The Company shall reimburse Employee
for business-related mileage at the reimbursement rate approved by
the United States Internal Revenue Service, as such rate may change
from time to time. Notwithstanding the foregoing, the Company shall
not reimburse Employee for mileage traveled to the Company’s
office from Employee’s residence, or from the Company’s
office to Employee’s residence. Nothing contained in this
Section 6.2 shall be construed as requiring the Company to
reimburse Employee for the cost of gasoline for his/her motor
vehicle.
Section 6.3
As a condition to reimbursement,
Employee shall furnish to the Company adequate records and other
documentary evidence required by federal and state statutes and
regulations for the substantiation of each expenditure as an income
tax deduction. Employee acknowledges and agrees that failure to
furnish the required documentation may result in the Company
denying all or part of the expense for which reimbursement is
sought.
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ARTICLE 7. TERMINATION OF
EMPLOYMENT
The Company is an
“At-Will” employer. You are free to terminate your
employment with the Company at any time, with or without reason,
and the Company has the right to terminate your employment at any
time with or without reason. Although the Company may choose to
terminate employment for cause, cause is not required. The
“at-will” nature of employment cannot be changed except
by a written agreement signed by the President and CEO of the
Company and Employee.
ARTICLE 8. RESTRICTIVE
COVENANTS
Section 8.1
Employee shall devote all or
substantially all of his/her entire productive time, ability and
attention to the business of the Company during the term of
employment. Employee