Exhibit 10.1
SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT
This SECOND AMENDMENT TO EMPLOYMENT
AGREEMENT (this “Amendment”) is made and entered into
as of the 16th day of March, 2007, by and between Autobytel Inc., a
Delaware corporation (the “Company”), and Michael
Schmidt (the “Executive”).
RECITALS
WHEREAS, the Company and the
Executive entered into an Employment Agreement, dated as of
May 30, 2005, whereby the Executive was engaged as the
Company’s Executive Vice President and Chief Financial
Officer (the “Original Employment
Agreement”).
WHEREAS, pursuant to the terms of
the Original Employment Agreement, the Term of the
Executive’s employment renewed through May 30,
2007.
WHEREAS, the Company and Executive
entered into an Amendment to the Original Employment Agreement,
dated as of April 26, 2006 (the “First Amendment”;
the Original Employment Agreement and the First Amendment being
collectively referred to as the “Employment
Agreement”), to, among other things, allow the Executive and
the Company more flexibility in transitioning the Executive’s
employment responsibilities within the Company.
WHEREAS, the Company and Executive
desire to further amend the Employment Agreement to, among other
things, alter the scope of the Executive’s employment with
the Company and provide for the Executive’s departure from
the Company.
AGREEMENT
NOW, THEREFORE, in consideration of
the mutual agreements contained herein, and with reference to the
above recitals, the parties hereby agree as follows:
|
1.
|
Deemed
Termination .
Notwithstanding anything to the contrary in Section 6.2 of the
Employment Agreement, for the purposes of the Executive’s
entitlement to severance, this amendment will be and hereby is
deemed a termination without cause under Section 6.2 of the
Employment Agreement by the Company upon thirty (30) days
notice with the last such date of employment being the expiration
of the Term (as defined below). The parties confirm and acknowledge
that as a result of such termination, the Executive shall, subject
to the separate receipt of a signed release for each payment due
under clauses (a) and (b) below by the Executive in the
form set forth in Exhibit A and non-revocation of each such release
as provided therein, be entitled on the expiration of the
revocation period relating to the appropriate release to the
following and only to the following:
|
|
|
(a)
|
A severance
payment of Three Hundred and Seventy-Five Thousand Dollars
($375,000.00) relating to the first release; and
|
|
|
(b)
|
A pro-rated
bonus with respect to the year 2007 in the amount of Thirty-Six
Thousand Four Hundred and Fifty-Eight Dollars ($36,458.00) relating
to the second release.
|
The release in respect of clause
(a) will be provided on the date hereof and the release in
respect of clause (b) will be provided on May 31,
2007.
|
2.
|
Amendment to
Article 1, Section 1.2 of the Employment Agreement
. Article 1, Section 1.2 of the
Employment Agreement is hereby amended by deleting the text of
Section 1.2 in its entirety and inserting in lieu thereof the
following:
|
1.2 TERM OF EMPLOYMENT. The Company
hereby employs the Executive from March 16, 2007 to the
earlier of (A) the date the Executive determines to sever his
employment relationship with the Company or (B) May 31,
2007 (the “Term”), whereupon the Term will expire
without further action by either party.
|
3.
|
Amendment to
Article 2, Section 2.1 of the Employment Agreement
. Article 2, Section 2.1 of the
Employment Agreement is hereby further amended by deleting the text
of Section 2.1 in its entirety and inserting in lieu thereof
the following:
|
|
|
(a)
|
From the date
hereof until April 13, 2007, the Executive will no longer be
an officer of the Company (and hereby resigns from the position of
Executive Vice President and Chief Financial Officer of the
Company) and will instead be considered a non-officer, full-time
employee within the financial group of the Company.
|
|
|
(b)
|
From
April 14, 2007 until May 31, 2007, the Executive will
become a part-time employee of the Company with the obligation to
work Tuesdays, Wednesdays and Thursdays only. The Executive’s
duties from March 16, 2007 through May 31, 2007 will be
directed by the Chief Executive Officer or Chief Financial
Officer.
|
|
4.
|
Amendment to
Article 3, Sections 3.1 and 3.2 of the Employment
Agreement . Article 3 of
the Employment Agreement is hereby amended by deleting the text of
Sections 3.1 and 3.2 in their entirety and inserting in lieu
thereof the following:
|
|
|
(a)
|
From
March 16, 2007 until April 13, 2007, the Executive will
be paid a salary but no bonus, on a pro-rated basis, based on an
annual compensation rate of Two Hundred and Fifty Thousand Dollars
($250,000.00), to be paid in substantially equal bimonthly
installments in accordance with the normal payroll practices of the
Company. For the avoidance of doubt, the Executive’s benefits
under Section 4 of the Employment Agreement will remain in
effect and unchanged throughout this period. In addition, the
Executive’s commuting costs will be paid for by the Company
during this period consistent with past practices, including
appropriate gross up for any income or employment taxes levied
thereon.
|
|
|
(b)
|
From
April 14, 2007 until May 31, 2007, the Executive will no
longer be entitled to a salary or bonus but instead will be paid
One Thousand Four Hundred and Seventy Dollars ($1,470.00) per day
for each full day worked during this period. From April 14,
2007 and up to and until one year following the date the
Executive’s employment by the Company actually terminates,
and notwithstanding anything else to the contrary in the Employment
Agreement, the Executive will continue to receive all benefits
provided for under Section 4.1 of the Employment Agreement,
except to the extent that during such period the Executive receives
substantially similar (or better, from the Executive’s
perspective) benefits from a new employer.
|
|
|
3.2
|
Intentionally
Omitted.
|
|
5.
|
Amendment to
Article 5, Section 5.2 of the Employment Agreement
. Article 5, Section 5.2 of the
Employment Agreement is hereby amended by substituting the date of
May 31, 2007 for the date of June 30, 2006 in the first
paragraph of said Section.
|
|
6.
|
Options . The parties confirm and acknowledge that all
unvested options held by the Executive, other than those granted
under Section 3.7 of the Employment Agreement, shall continue
to vest in accordance with their terms and the stock option plans
they were granted under until the Executive’s employment by
the Company is terminated and thereafter, to the extent vested,
shall be exercisable until 90 days or three months following such
termination date, as set forth in the applicable option agreement.
The parties confirm and acknowledge that the options granted under
Section 3.7 of the Employment Agreement will become fully
vested on the last day of the Term and will be exercisable for two
years following such date.
|
|
7.
|
Full Force
and Effect . Except as
amended or otherwise modified by Sections 1, 2, and 3 hereof, the
Employment Agreement remains in full force and effect.
|
|
8.
|
Governing
Law . This Amendment
shall be construed, interpreted and governed by the laws of the
State of California, without giving effect to the principles of
conflict of laws thereof.
|
|
9.
|
Notices . Any notice given in connection with this
Amendment shall be made in writing and shall be considered effected
if delivered in accordance with the provisions of Section 9.4
of the Employment Agreement, a
|
|
