|
|
Delaware
|
33-0711569
|
(State or other jurisdiction of incorporation or organization)
|
(I.R.S. Employer identification number)
|
|
|
18872 MacArthur Boulevard, Suite 200, Irvine, California
|
92612
|
(Address of principal executive offices)
|
(Zip Code)
|
Large accelerated filer
¨
|
Accelerated filer
¨
|
Non-accelerated filer
¨
|
Smaller reporting company
x
|
|
|
(Do not check if a smaller reporting company)
|
|
|
|
|
|
INDEX
|
|
|
|
Page
|
|
PART I. FINANCIAL INFORMATION
|
|
|
|
|
ITEM 1.
|
Financial Statements
|
|
|
|
|
|
3
|
|
|
|
|
|
4
|
|
|
|
|
|
5
|
|
|
|
|
|
6
|
|
|
|
|
ITEM 2.
|
14
|
|
|
|
|
ITEM 3.
|
||
|
|
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ITEM 4.
|
20
|
|
|
|
|
|
PART II. OTHER INFORMATION
|
|
|
|
|
ITEM 1A.
|
20
|
|
|
|
|
ITEM 6.
|
22
|
|
|
|
|
|
23
|
|
September 30,
|
December 31,
|
||||||
|
2012
|
2011
|
*
|
|||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$
|
13,706
|
$
|
11,209
|
||||
Restricted cash
|
—
|
400
|
||||||
Accounts receivable, net of allowances for bad debts and customer credits of $411 and $540 at September 30, 2012 and December 31, 2011, respectively
|
11,056
|
10,144
|
||||||
Prepaid expenses and other current assets
|
596
|
571
|
||||||
Total current assets
|
25,358
|
22,324
|
||||||
Property and equipment, net
|
1,646
|
1,629
|
||||||
Long-term strategic investment
|
194
|
194
|
||||||
Intangible assets, net
|
1,874
|
2,893
|
||||||
Goodwill
|
11,677
|
11,677
|
||||||
Other assets
|
77
|
77
|
||||||
Total assets
|
$
|
40,826
|
$
|
38,794
|
||||
Liabilities and Stockholders' Equity
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$
|
5,294
|
$
|
3,081
|
||||
Accrued expenses and other current liabilities
|
4,684
|
4,994
|
||||||
Deferred revenues
|
86
|
216
|
||||||
Total current liabilities
|
10,064
|
8,291
|
||||||
Convertible note payable
|
5,000
|
5,000
|
||||||
Other non-current liabilities
|
554
|
607
|
||||||
Total liabilities
|
15,618
|
13,898
|
||||||
Commitments and contingencies
|
||||||||
Stockholders' equity:
|
||||||||
Preferred stock, $0.001 par value; 11,445,187 shares authorized; none outstanding
|
—
|
—
|
||||||
Common stock, $0.001 par value; 200,000,000 shares authorized and 8,853,900 and 9,224,345 shares issued and outstanding at September 30, 2012 and December 31, 2011, respectively
|
9
|
46
|
||||||
Additional paid-in capital
|
306,047
|
306,733
|
||||||
Accumulated deficit
|
(280,848
|
)
|
(281,883
|
)
|
||||
Total stockholders' equity
|
25,208
|
24,896
|
||||||
Total liabilities and stockholders' equity
|
$
|
40,826
|
$
|
38,794
|
||||
* Amounts were derived from audited financial statements
|
|
Three Months Ended September 30,
|
Nine Months Ended September 30,
|
||||||||||||||
|
2012
|
2011
|
2012
|
2011
|
||||||||||||
Revenues:
|
|
|
|
|
||||||||||||
Purchase requests
|
$
|
16,523
|
$
|
15,482
|
$
|
47,077
|
$
|
44,635
|
||||||||
Advertising
|
884
|
784
|
2,670
|
2,772
|
||||||||||||
Other revenues
|
47
|
44
|
144
|
182
|
||||||||||||
Total revenues
|
17,454
|
16,310
|
49,891
|
47,589
|
||||||||||||
Cost of revenues (excludes depreciation of $25 and $70 for the three months ended September 30, 2012 and 2011, respectively, and $90 and $211 for the nine months ended September 30, 2012 and 2011, respectively)
|
10,739
|
9,738
|
30,004
|
28,496
|
||||||||||||
Gross profit
|
6,715
|
6,572
|
19,887
|
19,093
|
||||||||||||
Operating expenses:
|
||||||||||||||||
Sales and marketing
|
2,035
|
2,153
|
6,648
|
6,782
|
||||||||||||
Technology support
|
1,651
|
1,855
|
5,098
|
5,241
|
||||||||||||
General and administrative
|
1,983
|
1,781
|
5,772
|
5,809
|
||||||||||||
Depreciation and amortization
|
492
|
419
|
1,295
|
1,369
|
||||||||||||
Litigation settlements
|
(68
|
)
|
(65
|
)
|
(205
|
)
|
(393
|
)
|
||||||||
Total operating expenses
|
6,093
|
6,143
|
18,608
|
18,808
|
||||||||||||
|
||||||||||||||||
Operating income
|
622
|
429
|
1,279
|
285
|
||||||||||||
Interest and other income, net
|
16
|
8
|
12
|
31
|
||||||||||||
Income before income tax provision (benefit)
|
638
|
437
|
1,291
|
316
|
||||||||||||
Income tax provision (benefit)
|
87
|
(9
|
)
|
256
|
241
|
|||||||||||
Net income and comprehensive income
|
$
|
551
|
$
|
446
|
$
|
1,035
|
$
|
75
|
||||||||
Basic income per common share
|
$
|
0.06
|
$
|
0.05
|
$
|
0.11
|
$
|
0.01
|
||||||||
|
||||||||||||||||
Diluted income per common share
|
$
|
0.05
|
$
|
0.05
|
$
|
0.11
|
$
|
0.01
|
||||||||
|
|
|
|
||||||
|
Nine Months Ended September 30,
|
|||||||
|
2012
|
2011
|
||||||
Cash flows from operating activities:
|
|
|
||||||
Net income
|
$
|
1,035
|
$
|
75
|
||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||
Depreciation and amortization
|
1,626
|
1,598
|
||||||
Provision for bad debts
|
119
|
78
|
||||||
Provision for customer credits
|
233
|
633
|
||||||
Write-down of property and equipment
|
—
|
5
|
||||||
Share-based compensation
|
708
|
768
|
||||||
Changes in assets and liabilities:
|
||||||||
Accounts receivable
|
(1,264
|
)
|
(2,125
|
)
|
||||
Prepaid expenses and other current assets
|
(25
|
)
|
71
|
|||||
Other non-current assets
|
—
|
4
|
||||||
Accounts payable
|
2,213
|
(13
|
)
|
|||||
Accrued expenses and other current liabilities
|
(93
|
)
|
(994
|
)
|
||||
Deferred revenues
|
(130
|
)
|
(116
|
)
|
||||
Non-current liabilities
|
(53
|
)
|
136
|
|||||
Net cash provided by operating activities
|
4,369
|
120
|
||||||
Cash flows from investing activities:
|
||||||||
Purchases of property and equipment
|
(624
|
)
|
(603
|
)
|
||||
Change in long-term strategic investment
|
—
|
806
|
||||||
Change in short-term investment
|
400
|
—
|
||||||
Net cash (used in) provided by investing activities
|
(224
|
)
|
203
|
|||||
Cash flows from financing activities:
|
||||||||
Proceeds from exercise of stock options
|
22
|
351
|
||||||
Payment of contingent fee arrangement
|
(217
|
)
|
(250
|
)
|
||||
Repurchase of common stock
|
(1,453
|
)
|
—
|
|||||
Net cash (used in) provided by financing activities
|
(1,648
|
)
|
101
|
|||||
Net increase in cash and cash equivalents
|
2,497
|
424
|
||||||
Cash and cash equivalents, beginning of period
|
11,209
|
8,819
|
||||||
Cash and cash equivalents, end of period
|
$
|
13,706
|
$
|
9,243
|
|
|
|
|
|
||||||||||||
|
Three Months Ended September 30,
|
Nine Months Ended September 30,
|
||||||||||||||
|
2012
|
2011
|
2012
|
2011
|
||||||||||||
Basic shares:
|
|
|
|
|
||||||||||||
Weighted average common shares outstanding
|
9,232,603
|
9,220,666
|
9,228,355
|
9,196,790
|
||||||||||||
Weighted average common shares repurchased
|
(379,809
|
)
|
—
|
(185,039
|
)
|
—
|
||||||||||
Weighted average unvested restricted stock
|
—
|
(5,266
|
)
|
—
|
(13,533
|
)
|
||||||||||
Basic shares
|
8,852,794
|
9,215,400
|
9,043,316
|
9,183,257
|
||||||||||||
|
||||||||||||||||
Diluted Shares:
|
||||||||||||||||
Basic Shares
|
8,852,794
|
9,215,400
|
9,043,316
|
9,183,257
|
||||||||||||
Weighted average dilutive securities
|
1,245,146
|
262,705
|
215,149
|
411,490
|
||||||||||||
Dilutive Shares
|
10,097,940
|
9,478,105
|
9,258,465
|
9,594,747
|
|
|
|
|
|
||||||||||||
Three Months Ended September 30,
|
Nine Months Ended September 30,
|
|||||||||||||||
2012
|
2011
|
2012
|
2011
|
|||||||||||||
|
|
|
|
|||||||||||||
(in thousands)
|
(in thousands)
|
|||||||||||||||
Share-based compensation expense:
|
|
|
|
|
||||||||||||
Cost of revenues
|
$
|
12
|
$
|
11
|
$
|
35
|
$
|
23
|
||||||||
Sales and marketing
|
25
|
94
|
188
|
275
|
||||||||||||
Technology support
|
56
|
89
|
225
|
250
|
||||||||||||
General and administrative
|
117
|
74
|
264
|
229
|
||||||||||||
Share-based compensation costs
|
210
|
268
|
712
|
777
|
||||||||||||
|
||||||||||||||||
Amount capitalized to internal use software
|
1
|
—
|
4
|
9
|
||||||||||||
Total share-based compensation costs
|
$
|
209
|
$
|
268
|
$
|
708
|
$
|
768
|
|
Three Months Ended September 30,
|
Nine Months Ended September 30,
|
||||||||||||||
|
2012
|
2011
|
2012
|
2011
|
||||||||||||
Dividend yield
|
—
|
—
|
—
|
—
|
||||||||||||
Volatility
|
81
|
%
|
85
|
%
|
84
|
%
|
84
|
%
|
||||||||
Risk-free interest rate
|
0.5
|
%
|
1.1
|
%
|
0.6
|
%
|
1.5
|
%
|
||||||||
Expected life (years)
|
4.2
|
4.1
|
4.2
|
4.1
|
|
|
|
||||||
|
September 30,
|
December 31,
|
||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Computer software and hardware and capitalized internal use software
|
$
|
12,640
|
$
|
12,035
|
||||
Furniture and equipment
|
1,274
|
1,272
|
||||||
Leasehold improvements
|
942
|
942
|
||||||
|
14,856
|
14,249
|
||||||
Less – Accumulated depreciation and amortization
|
(13,210
|
)
|
(12,620
|
)
|
||||
Property and equipment, net
|
$
|
1,646
|
$
|
1,629
|
Intangible Asset
|
|
Estimated Useful Life
|
||
Trademarks/trade names
|
|
5 years
|
||
Software and publications
|
|
3 years
|
||
Customer relationships
|
|
3 years
|
||
Employment/non-compete agreements
|
|
5 years
|
Year
|
|
Amortization Expense
|
||
|
|
(in thousands)
|
||
|
|
|
||
2012
|
|
$ 335
|
||
2013
|
|
1,036
|
||
2014
|
|
284
|
||
2015
|
|
208
|
||
2016
|
|
3
|
||
|
|
$ 1,866
|
|
September 30,
|
December 31,
|
||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Compensation and related costs
|
$
|
1,624
|
$
|
2,084
|
||||
Professional fees and other accrued expenses
|
2,411
|
2,221
|
||||||
Amounts due to customers
|
143
|
180
|
||||||
Other current liabilities
|
506
|
509
|
||||||
Total accrued expenses and other current liabilities
|
$
|
4,684
|
$
|
4,994
|
·
|
The adverse effect of high unemployment on the number of vehicle purchasers,
|
·
|
Availability of, and interest rates for, financing for vehicle purchases,
|
·
|
Pricing and purchase incentives for vehicles,
|
·
|
Disruption in the available inventory of vehicles,
|
·
|
The expectation that consumers will be purchasing fewer vehicles overall during their lifetime,
|
·
|
The impact of gasoline prices on demand for vehicles,
|
·
|
Volatility in spending by Manufacturers and others in their marketing budgets and allocations, and
|
·
|
The effect of changes in search engine algorithms on our Purchase Request generation and website advertising activities.
|
|
|
|
|
|
|
|||||||||||||||||||
|
2012
|
% of total revenues
|
2011
|
% of total revenues
|
$ Change
|
% Change
|
||||||||||||||||||
|
(Dollar amounts in thousands)
|
|
||||||||||||||||||||||
Revenues:
|
|
|
|
|
|
|
||||||||||||||||||
Purchase requests
|
$
|
16,523
|
95
|
%
|
$
|
15,482
|
95
|
%
|
$
|
1,041
|
7
|
%
|
||||||||||||
Advertising
|
884
|
5
|
784
|
5
|
100
|
13
|
||||||||||||||||||
Other revenues
|
47
|
—
|
44
|
—
|
3
|
7
|
||||||||||||||||||
Total revenues
|
17,454
|
100
|
16,310
|
100
|
1,144
|
7
|
||||||||||||||||||
Cost of revenues (excludes depreciation of $25 and $70 for the three months ended September 30, 2012 and 2011, respectively)
|
10,739
|
62
|
9,738
|
60
|
1,001
|
10
|
||||||||||||||||||
Gross profit
|
6,715
|
38
|
6,572
|
40
|
143
|
2
|
||||||||||||||||||
Operating expenses:
|
||||||||||||||||||||||||
Sales and marketing
|
2,035
|
12
|
2,153
|
13
|
(118
|
)
|
(5
|
)
|
||||||||||||||||
Technology support
|
1,651
|
9
|
1,855
|
11
|
(204
|
)
|
(11
|
)
|
||||||||||||||||
General and administrative
|
1,983
|
11
|
1,781
|
11
|
202
|
11
|
||||||||||||||||||
Depreciation and amortization
|
492
|
3
|
419
|
2
|
73
|
17
|
||||||||||||||||||
Litigation settlements
|
(68
|
)
|
—
|
(65
|
)
|
—
|
(3
|
)
|
5
|
|||||||||||||||
Total operating expenses
|
6,093
|
35
|
6,143
|
37
|
(50
|
)
|
(1
|
)
|
||||||||||||||||
Operating income
|
622
|
3
|
429
|
3
|
193
|
45
|
||||||||||||||||||
Interest and other income, net
|
16
|
—
|
8
|
—
|
8
|
100
|
||||||||||||||||||
Income before income tax provision (benefit)
|
638
|
3
|
437
|
3
|
201
|
46
|
||||||||||||||||||
Income tax provision (benefit)
|
87
|
—
|
(9
|
)
|
—
|
96
|
(1,067
|
)
|
||||||||||||||||
Net income
|
$
|
551
|
3
|
%
|
$
|
446
|
3
|
%
|
$
|
105
|
24
|
%
|
|
|
|
|
|
|
|||||||||||||||||||
|
2012
|
% of total revenues
|
2011
|
% of total revenues
|
$ Change
|
% Change
|
||||||||||||||||||
|
(Dollar amounts in thousands)
|
|
||||||||||||||||||||||
Revenues:
|
|
|
|
|
|
|
||||||||||||||||||
Purchase requests
|
$
|
47,077
|
94
|
%
|
$
|
44,635
|
94
|
%
|
$
|
2,442
|
5
|
%
|
||||||||||||
Advertising
|
2,670
|
6
|
2,772
|
6
|
(102
|
)
|
(4
|
)
|
||||||||||||||||
Other revenues
|
144
|
—
|
182
|
—
|
(38
|
)
|
(21
|
)
|
||||||||||||||||
Total revenues
|
49,891
|
100
|
47,589
|
100
|
2,302
|
5
|
||||||||||||||||||
Cost of revenues (excludes depreciation of $90 and $211 for the nine months ended September 30, 2012 and 2011, respectively)
|
30,004
|
60
|
28,496
|
60
|
1,508
|
5
|
||||||||||||||||||
Gross profit
|
19,887
|
40
|
19,093
|
40
|
794
|
4
|
||||||||||||||||||
Operating expenses:
|
||||||||||||||||||||||||
Sales and marketing
|
6,648
|
13
|
6,782
|
14
|
(134
|
)
|
(2
|
)
|
||||||||||||||||
Technology support
|
5,098
|
10
|
5,241
|
11
|
(143
|
)
|
(3
|
)
|
||||||||||||||||
General and administrative
|
5,772
|
11
|
5,809
|
12
|
(37
|
)
|
(1
|
)
|
||||||||||||||||
Depreciation and amortization
|
1,295
|
3
|
1,369
|
3
|
(74
|
)
|
(5
|
)
|
||||||||||||||||
Litigation settlements
|
(205
|
)
|
—
|
(393
|
)
|
(1
|
)
|
188
|
(48
|
)
|
||||||||||||||
Total operating expenses
|
18,608
|
37
|
18,808
|
39
|
(200
|
)
|
(1
|
)
|
||||||||||||||||
Operating income
|
1,279
|
3
|
285
|
1
|
994
|
349
|
||||||||||||||||||
Interest and other income, net
|
12
|
—
|
31
|
—
|
(19
|
)
|
(61
|
)
|
||||||||||||||||
Income before income tax provision
|
1,291
|
3
|
316
|
1
|
975
|
309
|
||||||||||||||||||
Income tax provision
|
256
|
1
|
241
|
1
|
15
|
6
|
||||||||||||||||||
Net income
|
$
|
1,035
|
2
|
%
|
$
|
75
|
0
|
%
|
$
|
960
|
1,280
|
%
|
|
Nine Months Ended September 30,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Net cash provided by operating activities
|
$
|
4,369
|
$
|
120
|
||||
Net cash (used in) provided by investing activities
|
(224
|
)
|
203
|
|||||
Net cash (used in) provided by financing activities
|
(1,648
|
)
|
101
|
·
|
The adverse effect of high unemployment on the number of vehicle purchasers,
|
·
|
Availability of, and interest rates for, financing for vehicle purchases,
|
·
|
Pricing and purchase incentives for vehicles,
|
·
|
Disruption in the available inventory of vehicles,
|
·
|
The expectation that consumers will be purchasing fewer vehicles overall during their lifetime,
|
·
|
The impact of gasoline prices on demand for vehicles,
|
·
|
Volatility in spending by Manufacturers and others in their marketing budgets and allocations, and
|
·
|
The effect of changes in search engine algorithms on our Purchase Request generation and website advertising activities.
|
2.1‡
|
Asset Purchase Agreement dated as of September 16, 2010, by and among Autotropolis, Inc., a Florida corporation, Cyber Ventures, Inc., a Florida corporation, William Ferriolo, Ian Bentley and the Ian Bentley Revocable Trust created U/A/D 3/1/2005, Autobytel Inc., a Delaware corporation, and Autobytel Acquisition Subsidiary, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 2.1 of the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2010 filed with the SEC on November 12, 2010 (SEC File No. 1-34761)
|
|
|
3.1
|
Fifth Amended and Restated Certificate of Incorporation of Autobytel Inc. (formerly Autobytel.com Inc. ("
Autobytel
" or the "
Company
")) certified by the Secretary of State of Delaware (filed December 14, 1998),
as amended by
Certificate of Amendment dated March 1, 1999, Second Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel dated July 22, 1999, Third Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel dated August 14, 2001, Certificate of Designation of Series A Junior Participating Preferred Stock dated July 30, 2004, and Amended Certificate of Designation of Series A Junior Participating Preferred Stock dated April 24, 2009, which is incorporated herein by reference to Exhibit 3.1 of the Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009 filed with the SEC on April 24, 2009 (SEC File No. 000-22239)
and as amended by
the Fourth Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel effective as of July 11, 2012, which is incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K files with the SEC on July 12, 2012 (SEC File No. 1-34761)
|
|
|
3.2
|
Third Amended and Restated Bylaws of Autobytel dated April 27, 2011, which is incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the SEC on April 29, 2011 (SEC File No. 1-34761),
as amended by
Amendment to Third Amended and Restated Bylaws of Autobytel dated September 13, 2012, which is incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the SEC on September 14, 2012 (SEC File No. 1-34761)
|
|
|
4.1
|
Form of Common Stock Certificate of Autobytel is incorporated herein by reference to Exhibit 4.1 of the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2001 filed with the SEC on November 14, 2001 (SEC File No. 000-22239)
|
|
|
4.2
|
Tax Benefit Preservation Plan, dated as of May 26, 2010, between Autobytel Inc. and Computershare Trust Company, N.A., as rights agent, together with the following exhibits thereto: Exhibit A – Form of Right Certificate; Exhibit B – Summary of Rights to Purchase Shares of Preferred Stock of Autobytel Inc. is incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on June 2, 2010 (SEC File No. 000-22239)
|
|
|
4.3*
|
Certificate of Adjustment Under Section 11(m) of the Tax Benefit Preservation Plan
|
|
|
31.1*
|
Rule 13a-14(a)/15d-14(a) Certification by Principal Executive Officer
|
|
|
31.2*
|
Rule 13a-14(a)/15d-14(a) Certification by Principal Financial Officer
|
|
|
32.1*
|
Section 1350 Certification by Principal Executive Officer and Principal Financial Officer
|
|
|
101.INS**
|
XBRL Instance Document
|
|
|
101.SCH**
|
XBRL Taxonomy Extension Schema Document
|
|
|
101.CAL**
|
XBRL Taxonomy Calculation Linkbase Document
|
|
|
101.DEF**
|
XBRL Taxonomy Extension Definition Document
|
|
|
101.LAB**
|
XBRL Taxonomy Label Linkbase Document
|
|
|
101.PRE**
|
XBRL Taxonomy Presentation Linkbase Document
|
|
|
* | Filed herewith |
‡ | Certain schedules in this Exhibit have been omitted in accordance with Item 601(b)(2) of Regulation S-K. Autobytel will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request; provided, however, that Autobytel may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or exhibit so furnished. |
** | Furnished with this report. In accordance with Rule 406T of Regulation S-T, the information in these exhibits shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to liability under that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such filing. |
|
|
|
|
|
|
|
|
A
UTOBYTEL
I
NC
.
|
|
||
|
|
|
|
|
|
|
Date: November 8, 2012
|
|
By:
|
/s/ Curtis E. DeWalt
|
|
|
|
|
|
Curtis E. DeWalt
|
|
|
|
|
|
Senior Vice President and Chief Financial Officer
|
|
|
|
|
|
(Duly Authorized Officer and Principal Financial Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date: November 8, 2012
|
|
By:
|
/s/ Wesley Ozima
|
|
|
|
|
|
Wesley Ozima
|
|
|
|
|
|
Vice President and Controller
|
|
|
|
|
|
(Principal Accounting Officer)
|
|
2.1‡
|
Asset Purchase Agreement dated as of September 16, 2010, by and among Autotropolis, Inc., a Florida corporation, Cyber Ventures, Inc., a Florida corporation, William Ferriolo, Ian Bentley and the Ian Bentley Revocable Trust created U/A/D 3/1/2005, Autobytel Inc., a Delaware corporation, and Autobytel Acquisition Subsidiary, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 2.1 of the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2010 filed with the SEC on November 12, 2010 (SEC File No. 1-34761)
|
|
|
3.1
|
Fifth Amended and Restated Certificate of Incorporation of Autobytel Inc. (formerly Autobytel.com Inc. ("
Autobytel
" or the "
Company
")) certified by the Secretary of State of Delaware (filed December 14, 1998),
as amended by
Certificate of Amendment dated March 1, 1999, Second Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel dated July 22, 1999, Third Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel dated August 14, 2001, Certificate of Designation of Series A Junior Participating Preferred Stock dated July 30, 2004, and Amended Certificate of Designation of Series A Junior Participating Preferred Stock dated April 24, 2009, which is incorporated herein by reference to Exhibit 3.1 of the Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2009 filed with the SEC on April 24, 2009 (SEC File No. 000-22239)
and as amended by
the Fourth Certificate of Amendment of the Fifth Amended and Restated Certificate of Incorporation of Autobytel effective as of July 11, 2012, which is incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K files with the SEC on July 12, 2012 (SEC File No. 1-34761)
|
|
|
3.2
|
Third Amended and Restated Bylaws of Autobytel dated April 27, 2011, which is incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the SEC on April 29, 2011 (SEC File No. 1-34761),
as amended by
Amendment to Third Amended and Restated Bylaws of Autobytel dated September 13, 2012, which is incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the SEC on September 14, 2012 (SEC File No. 1-34761)
|
|
|
4.1
|
Form of Common Stock Certificate of Autobytel is incorporated herein by reference to Exhibit 4.1 of the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2001 filed with the SEC on November 14, 2001 (SEC File No. 000-22239)
|
|
|
4.2
|
Tax Benefit Preservation Plan, dated as of May 26, 2010, between Autobytel Inc. and Computershare Trust Company, N.A., as rights agent, together with the following exhibits thereto: Exhibit A – Form of Right Certificate; Exhibit B – Summary of Rights to Purchase Shares of Preferred Stock of Autobytel Inc. is incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on June 2, 2010 (SEC File No. 000-22239)
|
|
|
4.3*
|
Certificate of Adjustment Under Section 11(m) of the Tax Benefit Preservation Plan
|
|
|
31.1*
|
Rule 13a-14(a)/15d-14(a) Certification by Principal Executive Officer
|
|
|
31.2*
|
Rule 13a-14(a)/15d-14(a) Certification by Principal Financial Officer
|
|
|
32.1*
|
Section 1350 Certification by Principal Executive Officer and Principal Financial Officer
|
|
|
101.INS**
|
XBRL Instance Document
|
|
|
101.SCH**
|
XBRL Taxonomy Extension Schema Document
|
|
|
101.CAL**
|
XBRL Taxonomy Calculation Linkbase Document
|
|
|
101.DEF**
|
XBRL Taxonomy Extension Definition Document
|
|
|
101.LAB**
|
XBRL Taxonomy Label Linkbase Document
|
|
|
101.PRE**
|
XBRL Taxonomy Presentation Linkbase Document
|
* | Filed herewith |
‡ | Certain schedules in this Exhibit have been omitted in accordance with Item 601(b)(2) of Regulation S-K. Autobytel will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request; provided, however, that Autobytel may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedule or exhibit so furnished. |
1. | I have reviewed this quarterly report on Form 10-Q of Autobytel Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
31
|
|
|
|
|
|
|
/s/ Jeffrey H. Coats
|
|
|
Jeffrey H. Coats
|
|
|
President and Chief Executive Officer
|
|
1. | I have reviewed this quarterly report on Form 10-Q of Autobytel Inc.; |
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
4. | The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and we have: |
a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
b) | Designed such internal control over financial reporting or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
c) | Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
d) | Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and |
5. | The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions): |
a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and |
b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting. |
|
|
|
|
|
|
|
/s/ Curtis E. DeWalt
|
|
|
Curtis E. DeWalt,
|
|
|
Senior Vice President and
Chief Financial Officer |
|
1. |
The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and |
2. | The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. |
|
|
|
|
|
|
|
/s/ Jeffrey H. Coats
|
|
|
Jeffrey H. Coats
|
|
|
President and Chief Executive Officer
|
|
|
November 8, 2012
|
|
|
|
|
|
|
|
|
/s/ Curtis E. DeWalt
|
|
|
Curtis E. DeWalt
|
|
|
Senior Vice President and
|
|
|
Chief Financial Officer
|
|
|
November 8, 2012
|
|