x | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
|
|
Delaware
|
33-0711569
|
(State of Incorporation)
|
(I.R.S. Employer Identification No.)
|
|
|
Title of each class
|
Name of each exchange on which registered
|
Common Stock, par value $0.001 per share
|
The Nasdaq Capital Market
|
|
|
|
|
|
Page
Number |
Part I
|
||
|
|
|
Item 1
|
1
|
|
Item 1A
|
9
|
|
Item 1B
|
18
|
|
Item 2
|
18
|
|
Item 3
|
18
|
|
Item 4
|
18
|
|
|
||
Part II
|
||
|
|
|
Item 5
|
19
|
|
Item 6
|
20
|
|
Item 7
|
20
|
|
Item 7A
|
28
|
|
Item 8
|
28
|
|
Item 9
|
29
|
|
I
tem 9A
|
29
|
|
Item 9B
|
29
|
|
|
||
Part III
|
||
|
|
|
Item 10
|
30
|
|
Item 11
|
30
|
|
Item 12
|
30
|
|
Item 13
|
30
|
|
Item 14
|
30
|
|
|
||
Part IV
|
||
|
|
|
Item 15
|
31
|
|
|
32
|
·
|
Further increasing the quality of our Leads
.
High quality Leads are those Leads that result in high transaction (i.e., purchase) closing rates for our Dealer customers. Internally-Generated Leads are generally higher quality than Non-Internally-Generated Leads and increase the overall quality of our Lead portfolio. Non-Internally-Generated Leads are of varying quality. Therefore, we plan to continue to develop and maintain strong relationships only with suppliers of Non-Internally-Generated Leads that consistently provide high quality Leads. We sell Internally-Generated Leads and Non-Internally-Generated Leads directly to Dealers and indirectly to Dealers through a wholesale market consisting of Manufacturers and other third parties in the automotive Lead distribution industry. In conjunction with our Lead programs, we also offer Dealers and Manufacturers other products and services, including our iControl by Autobytel
®
, WebLeads+, Email Marketing Manager, and Lead Call products and services, to assist them in capturing online, in-market customers and selling more vehicles by improving conversion of Leads to sale transactions.
|
·
|
Further increasing traffic acquisition activities
.
We plan to increase the traffic to our Company Websites through enhancements to our Company Websites and effective SEO and SEM traffic acquisition activities. Our goal is that over time, paid traffic such as SEM will be balanced by greater visitation from direct navigation and SEO, which we expect to result in increased gross profit margins.
|
·
|
Continuing to enhance the quality and user experience of our Company Websites
.
We continuously make enhancements to our Company Websites, including enhancements of the design and functionality of our Company Websites. These enhancements are intended to position our Company Websites as comprehensive best in class destinations for automotive purchase research by consumers. For 2012, our most significant website enhancement involved the launch of the mobile version of Autobytel.com as discussed above under the section of this Item 1 entitled "
Significant Business Developments
—
Website Enhancements.
"
|
·
|
Further increasing the conversion rate of visitors to Leads on our Company Websites
. Through increased SEO and SEM activities and significant content, tools, and user interface enhancements to our websites, we believe we will be able to increase the number of website visits and improve website "engagement," and thereby increase the conversion of page views into Leads. We believe that an increased conversion rate of page views into Leads could result in higher revenue per visitor.
|
·
|
increasing the quality of the Vehicle Leads sold to our Dealers,
|
·
|
increasing the number of Vehicle Leads sold to each of our Dealers,
|
·
|
increasing the number of Dealers in our Dealer network,
|
·
|
providing customizable Lead programs to meet our Dealers' unique marketing requirements,
|
·
|
providing additional value added marketing services that help Dealers more effectively utilize the internet to market and sell new and used vehicles, and
|
·
|
increasing overall Dealer satisfaction by improving all aspects of our services.
|
·
|
Lead Web Source –
segments Lead sources into five categories ('research,' 'quote,' 'buying,' 'enthusiast,' and 'portal') based on the type of automotive publisher from where the Lead is coming from. This enables Dealers to configure their mix according to their dealership resources and goals – along with the actual performance of a particular source.
|
·
|
Territory –
enables Dealers to apply different territories/zip codes to each of their models and Lead sources. Dealers can make territory decisions to protect their local market and expand their marketing reach by increasing their territory range. For example, a dealership may choose to increase the territory range for vehicles with higher closing ratios and are a greater distance from the dealership.
|
·
|
Make/Model –
helps Dealers spend their budget more effectively by allowing them to increase the number of Vehicle Leads for hard to move models or, conversely, block or restrict Leads by model for those with limited availability.
|
·
|
Increase revenues derived from our Leads and advertising services; and
|
·
|
Continue to manage our expenses in a disciplined manner.
|
·
|
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 automobiles;
|
·
|
The expectation that consumers will be purchasing fewer vehicles overall during their lifetime as a result of better quality vehicles and longer warranties;
|
·
|
The impact of gasoline prices on demand for vehicles;
|
·
|
Increases or decreases in the number of retail Dealers or in the number of Manufacturers and other wholesale customers in our customer base;
|
·
|
Volatility in spending by Manufacturers and others in their marketing budgets and allocations; and
|
·
|
The effect of changes in search engine algorithms and methodologies on our Lead generation and website advertising activities and margins.
|
·
|
political, social and economic instability;
|
·
|
exposure to different business practices and legal standards, particularly with respect to intellectual property;
|
·
|
continuation of overseas conflicts and the risk of terrorist attacks and resulting heightened security;
|
·
|
the imposition of governmental controls and restrictions and unexpected changes in regulatory requirements;
|
·
|
nationalization of business and blocking of cash flows;
|
·
|
changes in taxation and tariffs; and
|
·
|
difficulties in staffing and managing international operations.
|
·
|
Actual or anticipated variations in our quarterly operating results;
|
·
|
Historical and anticipated operating metrics such as the number of participating Dealers, volume of Lead deliveries to Dealers, the number of visitors to Company Websites and the frequency with which they interact with Company Websites;
|
·
|
Announcements of new product or service offerings;
|
·
|
Technological innovations;
|
·
|
Low trading volumes;
|
·
|
Concentration of holdings in our common stock resulting in low public float for our shares;
|
·
|
Decisions by holders of large blocks of our stock to sell their holdings on accelerated time schedules, including by reason of their decision to liquidate investment funds that hold our stock;
|
·
|
Limited analyst coverage of the Company;
|
·
|
Competitive developments, including actions by Manufacturers;
|
·
|
Changes in financial estimates by securities analysts or our failure to meet such estimates;
|
·
|
Conditions and trends in the internet, electronic commerce and automotive industries;
|
·
|
Adoption of new accounting standards affecting the technology or automotive industry;
|
·
|
The impact of open market repurchases of our common stock; and
|
·
|
General market or economic conditions and other factors.
|
Item 1B. | Unresolved Staff Comments |
Item 2. | Properties |
Item 3. | Legal Proceedings |
Item 4. | Mine Safety Disclosures |
Item 5. |
Market for Registrant's Common Equity, Related Stockholder Matters and Issuer Purchases
of Equity Securities |
|
|
|
||||||
Year
|
High
|
Low
|
||||||
2011
|
|
|
||||||
First Quarter
|
$
|
7.35
|
$
|
4.30
|
||||
Second Quarter
|
$
|
7.30
|
$
|
4.90
|
||||
Third Quarter
|
$
|
5.90
|
$
|
4.10
|
||||
Fourth Quarter
|
$
|
4.60
|
$
|
3.50
|
||||
2012
|
||||||||
First Quarter
|
$
|
5.25
|
$
|
3.70
|
||||
Second Quarter
|
$
|
4.85
|
$
|
3.55
|
||||
Third Quarter
|
$
|
4.00
|
$
|
3.43
|
||||
Fourth Quarter
|
$
|
4.29
|
$
|
3.73
|
Item 7. | Management's Discussion and Analysis of Financial Condition and Results of Operations |
·
|
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 automobiles;
|
·
|
The expectation that consumers will be purchasing fewer vehicles overall during their lifetime as a result of better quality vehicles and longer warranties;
|
·
|
The impact of gasoline prices on demand for vehicles;
|
·
|
Increases or decreases in the number of retail Dealers or in the number of Manufacturers and other wholesale customers in our customer base;
|
·
|
Volatility in spending by Manufacturers and others in their marketing budgets and allocations; and
|
·
|
The effect of changes in search engine algorithms and methodologies on our Lead generation and website advertising activities and margins.
|
|
|
|
||||||
Years Ended December 31,
|
||||||||
|
2012
|
2011
|
||||||
Revenues:
|
|
|
||||||
Lead fees
|
94.5
|
%
|
93.6
|
%
|
||||
Advertising
|
5.3
|
6.0
|
||||||
Other
|
0.2
|
0.4
|
||||||
|
||||||||
Total revenues:
|
100.0
|
100.0
|
||||||
|
||||||||
Cost of revenues
|
60.7
|
59.3
|
||||||
|
||||||||
Gross margin
|
39.3
|
40.7
|
||||||
|
||||||||
Operating expenses:
|
||||||||
Sales and marketing
|
12.8
|
14.0
|
||||||
Technology support
|
10.2
|
11.0
|
||||||
General and administrative
|
11.7
|
12.5
|
||||||
Depreciation and amortization
|
2.6
|
2.8
|
||||||
Litigation settlements
|
(0.4
|
)
|
(0.7
|
)
|
||||
|
||||||||
Total operating expenses
|
36.9
|
39.6
|
||||||
|
||||||||
Operating income
|
2.4
|
1.1
|
||||||
Interest and other income
|
0.2
|
0.1
|
||||||
Income tax provision
|
0.5
|
0.5
|
||||||
|
||||||||
Net income
|
2.1
|
%
|
0.7
|
%
|
|
|
|
|
|
||||||||||||
Years Ended December 31,
|
2012 vs. 2011 Change
|
|||||||||||||||
|
2012
|
2011
|
$
|
|
%
|
|||||||||||
|
(dollar amounts in thousands)
|
|||||||||||||||
Revenues:
|
|
|
|
|||||||||||||
Lead fees
|
$
|
63,109
|
$
|
59,735
|
$
|
3,374
|
6
|
%
|
||||||||
Advertising
|
3,524
|
3,850
|
(326
|
)
|
(8
|
)
|
||||||||||
Other revenues
|
169
|
227
|
(58
|
)
|
(26
|
)
|
||||||||||
|
||||||||||||||||
Total revenues
|
66,802
|
63,812
|
2,990
|
5
|
||||||||||||
Cost of revenues (excludes depreciation of $118 in 2012 and $221 in 2011)
|
40,530
|
37,829
|
2,701
|
7
|
||||||||||||
|
||||||||||||||||
Gross profit
|
$
|
26,272
|
$
|
25,983
|
$
|
289
|
1
|
%
|
|
|
|
|
|
||||||||||||
|
Years Ended December 31,
|
2012 vs. 2011 Change
|
||||||||||||||
|
2012
|
2011
|
$
|
|
%
|
|||||||||||
|
(dollar amounts in thousands)
|
|||||||||||||||
Operating expenses:
|
|
|
|
|||||||||||||
Sales and marketing
|
$
|
8,536
|
$
|
8,906
|
$
|
(370
|
)
|
(4
|
%)
|
|||||||
Technology support
|
6,848
|
7,045
|
(197
|
)
|
(3
|
)
|
||||||||||
General and administrative
|
7,852
|
7,987
|
(135
|
)
|
(2
|
)
|
||||||||||
Depreciation and amortization
|
||||||||||||||||
Depreciation and amortization
|
644
|
698
|
(54
|
)
|
(8
|
)
|
||||||||||
Amortization related to acquired intangible assets
|
1,073
|
1,073
|
—
|
—
|
||||||||||||
Total depreciation and amortization
|
1,717
|
1,771
|
(54
|
)
|
(3
|
)
|
||||||||||
|
||||||||||||||||
Litigation settlements
|
(273
|
)
|
(451
|
)
|
178
|
(39
|
)
|
|||||||||
Total operating expenses
|
$
|
24,680
|
$
|
25,258
|
$
|
(578
|
)
|
(2
|
%)
|
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Net cash provided by operating activities
|
$
|
5,806
|
$
|
2,204
|
||||
Net cash (used in) provided by investing activities
|
(46
|
)
|
164
|
|||||
Net cash (used in) provided by financing activities
|
(1,673
|
)
|
22
|
|
Years Ending December 31,
|
|||||||||||||||||||||||
|
(in thousands)
|
|||||||||||||||||||||||
|
2013
|
2014
|
2015
|
2016
|
2017 and
thereafter |
Total
|
||||||||||||||||||
Operating leases (a)
|
$
|
656
|
$
|
404
|
$
|
21
|
$
|
—
|
$
|
—
|
$
|
1,081
|
||||||||||||
Long-term debt obligations (b)
|
—
|
—
|
5,000
|
—
|
—
|
5,000
|
||||||||||||||||||
|
||||||||||||||||||||||||
Total
|
$
|
656
|
$
|
404
|
$
|
5,021
|
$
|
—
|
—
|
$
|
6,081
|
(a) | Operating lease obligations as defined by FASB Topic, "Accounting for Leases," and disclosed in Note 4 of the consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K. |
(b) | Long-term debt obligations as defined by FASB Topic, "Debt," and disclosed in Note 3 of the consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K. |
Item 8. | Financial Statements and Supplementary Data |
Item 9A. | Controls and Procedures |
Item 9B. | Other Information |
Item 10 | Directors, Executive Officers and Corporate Governance |
Item 11 | Executive Compensation |
Item 12 | Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters |
Item 13 | Certain Relationships and Related Transactions, and Director Independence |
Item 14 | Principal Accountant Fees and Services |
Item 15. | Exhibits and Financial Statement Schedules |
(1) | Financial Statements: |
|
|
|
|
|
Page
|
|
|
Index
|
F-1
|
|
|
Reports of Independent Registered Public Accounting Firm
|
F-2
|
|
|
|
Consolidated Balance Sheets
|
F-4
|
|
|
Consolidated Statements of Income and Comprehensive Income
|
F-5
|
|
|
Consolidated Statements of Stockholders' Equity
|
F-6
|
|
|
Consolidated Statements of Cash Flows
|
F-7
|
|
|
Notes to Consolidated Financial Statements
|
F-8
|
|
(2) | Financial Statement Schedules: |
|
|
|
|
|
Schedule II—Valuation and Qualifying Accounts
|
F-23
|
|
(3) | Exhibits: |
|
|
|
|
|
A
UTOBYTEL
I
NC
.
|
|
|
|
|
|
|
By:
|
/s/ J
EFFREY
H. C
OATS
|
|
|
|
|
Jeffrey H. Coats
|
|
|
|
President, Chief Executive Officer and Director
|
|
|
|
|
|
|
|
Signature
|
Title
|
Date
|
|
|
|
|
|
|
/s/ M
ICHAEL
J. F
UCHS
Michael J. Fuchs
|
Chairman of the Board and Director
|
February 28, 2013
|
|
|
|
|
|
|
|
/s/ J
EFFREY
H. C
OATS
Jeffrey H. Coats
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
February 28, 2013
|
|
|
|
|
|
|
|
|
/s/ C
URTIS
E. D
EWALT
Curtis E. DeWalt
|
Senior Vice President and Chief Financial Officer (Principal Financial Officer)
|
February 28, 2013
|
|
|
|
|
|
|
|
/s/ W
ESLEY
O
ZIMA
Wesley Ozima
|
Vice President and Controller (Principal
Accounting Officer) |
February 28, 2013
|
|
|
|
|
|
|
|
/s/ M
ICHAEL
A. C
ARPENTER
Michael A. Carpenter
|
Director
|
February 28, 2013
|
|
|
|
|
|
|
|
/s/ M
ARK
N. K
APLAN
Mark N. Kaplan
|
Director
|
February 28, 2013
|
|
|
|
|
|
|
|
/s/ J
EFFREY
M. S
TIBEL
Jeffrey M. Stibel
|
Director
|
February 28, 2013
|
|
|
|
|
|
|
|
/s/ J
ANET
M. T
HOMPSON
Janet M. Thompson
|
Director
|
February 28, 2013
|
|
|
|
|
|
|
Page
|
|
|
Reports of Independent Registered Public Accounting Firm
|
F-2
|
|
|
Consolidated Balance Sheets
|
F-4
|
|
|
|
Consolidated Statements of Income and Comprehensive Income
|
F-5
|
|
|
Consolidated Statements of Stockholders' Equity
|
F-6
|
|
|
Consolidated Statements of Cash Flows
|
F-7
|
|
|
Notes to Consolidated Financial Statements
|
F-8
|
|
|
|
|
||||||
|
December 31,
2012 |
December 31,
2011 |
||||||
Assets
|
|
|
||||||
Current assets:
|
|
|
||||||
Cash and cash equivalents
|
$
|
15,296
|
$
|
11,209
|
||||
Restricted cash
|
—
|
400
|
||||||
Accounts receivable, net of allowances for bad debts and customer credits of $426 and $540 at December 31, 2012 and 2011, respectively
|
10,081
|
10,144
|
||||||
Prepaid expenses and other current assets
|
504
|
571
|
||||||
|
||||||||
Total current assets
|
25,881
|
22,324
|
||||||
Property and equipment, net
|
1,593
|
1,629
|
||||||
Long-term strategic investment
|
—
|
194
|
||||||
Intangible assets, net
|
1,539
|
2,893
|
||||||
Goodwill
|
11,677
|
11,677
|
||||||
Other assets
|
77
|
77
|
||||||
|
||||||||
Total assets
|
$
|
40,767
|
$
|
38,794
|
||||
|
||||||||
Liabilities and Stockholders' Equity
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$
|
3,837
|
$
|
3,081
|
||||
Accrued expenses and other current liabilities
|
5,377
|
4,994
|
||||||
Deferred revenues
|
168
|
216
|
||||||
|
||||||||
Total current liabilities
|
9,382
|
8,291
|
||||||
Convertible note payable
|
5,000
|
5,000
|
||||||
Other non-current liabilities
|
620
|
607
|
||||||
|
||||||||
Total liabilities
|
15,002
|
13,898
|
||||||
Commitments and contingencies (Note 4)
|
—
|
—
|
||||||
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; 8,855,400 and 9,224,345 shares issued and outstanding at December 31, 2012 and 2011, respectively
|
9
|
46
|
||||||
Additional paid-in capital
|
306,252
|
306,733
|
||||||
Accumulated deficit
|
(280,496
|
)
|
(281,883
|
)
|
||||
|
||||||||
Total stockholders' equity
|
25,765
|
24,896
|
||||||
|
||||||||
Total liabilities and stockholders' equity
|
$
|
40,767
|
$
|
38,794
|
||||
|
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
Revenues:
|
|
|
||||||
Lead fees
|
$
|
63,109
|
$
|
59,735
|
||||
Advertising
|
3,524
|
3,850
|
||||||
Other revenues
|
169
|
227
|
||||||
|
||||||||
Total revenues
|
66,802
|
63,812
|
||||||
Cost of revenues (excludes depreciation of $118 in 2012 and $221 in 2011)
|
40,530
|
37,829
|
||||||
|
||||||||
Gross profit
|
26,272
|
25,983
|
||||||
Operating expenses:
|
||||||||
Sales and marketing
|
8,536
|
8,906
|
||||||
Technology support
|
6,848
|
7,045
|
||||||
General and administrative
|
7,852
|
7,987
|
||||||
Depreciation and amortization
|
1,717
|
1,771
|
||||||
Litigation settlements
|
(273
|
)
|
(451
|
)
|
||||
|
||||||||
Total operating expenses
|
24,680
|
25,258
|
||||||
|
||||||||
Operating income
|
1,592
|
725
|
||||||
|
||||||||
Interest and other income, net
|
139
|
40
|
||||||
Income tax provision
|
344
|
349
|
||||||
|
||||||||
Net income and comprehensive income
|
$
|
1,387
|
$
|
416
|
||||
|
||||||||
Basic earnings per common share
|
$
|
0.15
|
$
|
0.05
|
||||
|
||||||||
Diluted earnings per common share
|
$
|
0.15
|
$
|
0.04
|
||||
|
|
|
|
|
|
|||||||||||||||
|
Common Stock
|
Additional
Paid-In Capital |
Accumulated
Deficit |
Total
|
||||||||||||||||
|
Number of
Shares |
Amount
|
||||||||||||||||||
Balance, December 31, 2010
|
9,137,812
|
$46
|
$305,356
|
$(282,299
|
)
|
$23,103
|
||||||||||||||
Shares forfeited pursuant to stock awards
|
(111
|
)
|
—
|
—
|
—
|
—
|
||||||||||||||
Share-based compensation
|
—
|
—
|
1,032
|
—
|
1,032
|
|||||||||||||||
Issuance of common stock upon exercise of stock options
|
86,644
|
—
|
345
|
—
|
345
|
|||||||||||||||
Net income
|
—
|
—
|
—
|
416
|
416
|
|||||||||||||||
|
||||||||||||||||||||
Balance, December 31, 2011
|
9,224,345
|
46
|
306,733
|
(281,883
|
)
|
24,896
|
||||||||||||||
Repurchase of common stock
|
(379,811
|
)
|
(2
|
)
|
(1,453
|
)
|
—
|
(1,455
|
)
|
|||||||||||
Share-based compensation
|
—
|
—
|
915
|
—
|
915
|
|||||||||||||||
Reduction in par due to reverse stock split
|
—
|
(35
|
)
|
35
|
—
|
—
|
||||||||||||||
Issuance of common stock upon exercise of stock options
|
10,866
|
—
|
22
|
—
|
22
|
|||||||||||||||
Net income
|
—
|
—
|
—
|
1,387
|
1,387
|
|||||||||||||||
|
||||||||||||||||||||
Balance, December 31, 2012
|
8,855,400
|
$9
|
$306,252
|
$(280,496
|
)
|
$25,765
|
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
Cash flows from operating activities:
|
|
|
||||||
Net income
|
$
|
1,387
|
$
|
416
|
||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||
Depreciation and amortization
|
2,162
|
2,106
|
||||||
Provision for bad debt
|
164
|
131
|
||||||
Provision for customer credits
|
391
|
833
|
||||||
Write-down of property and equipment
|
—
|
5
|
||||||
Share-based compensation
|
910
|
1,022
|
||||||
Gain on long-term strategic investment
|
(132
|
)
|
—
|
|||||
Changes in assets and liabilities:
|
||||||||
Accounts receivable
|
(492
|
)
|
(2,041
|
)
|
||||
Prepaid expenses and other current assets
|
67
|
226
|
||||||
Other non-current assets
|
—
|
4
|
||||||
Accounts payable
|
756
|
(632
|
)
|
|||||
Accrued expenses and other current liabilities
|
628
|
332
|
||||||
Deferred revenues
|
(48
|
)
|
(348
|
)
|
||||
Non-current liabilities
|
13
|
150
|
||||||
|
||||||||
Net cash provided by operating activities
|
5,806
|
2,204
|
||||||
|
||||||||
Cash flows from investing activities:
|
||||||||
Change in short-term investment
|
400
|
—
|
||||||
Change in long-term strategic investment
|
326
|
806
|
||||||
Purchases of property and equipment
|
(772
|
)
|
(642
|
)
|
||||
|
||||||||
Net cash (used in) provided by investing activities
|
(46
|
)
|
164
|
|||||
|
||||||||
Cash flows from financing activities:
|
||||||||
Repurchase of common stock
|
(1,455
|
)
|
—
|
|||||
Net proceeds from stock option exercises
|
27
|
355
|
||||||
Payment of contingent fee arrangement
|
(245
|
)
|
(333
|
)
|
||||
|
||||||||
Net cash (used in) provided by financing activities
|
(1,673
|
)
|
22
|
|||||
|
||||||||
Net increase in cash and cash equivalents
|
4,087
|
2,390
|
||||||
Cash and cash equivalents, beginning of period
|
11,209
|
8,819
|
||||||
|
||||||||
Cash and cash equivalents, end of period
|
$
|
15,296
|
$
|
11,209
|
||||
|
||||||||
Supplemental disclosure of cash flow information:
|
||||||||
Cash paid for income taxes
|
$
|
24
|
$
|
84
|
||||
Cash paid for interest
|
$
|
300
|
$
|
312
|
||||
|
1. | Organization and Operations of Autobytel |
2. | Summary of Significant Accounting Policies |
|
|
|
||||||
|
2012
|
2011
|
||||||
Basic Shares:
|
|
|
||||||
Weighted average common shares outstanding
|
9,229,817
|
9,203,649
|
||||||
Weighted average common shares repurchased
|
(233,998
|
)
|
—
|
|||||
Weighted average unvested restricted stock
|
—
|
(10,102
|
)
|
|||||
Basic Shares
|
8,995,819
|
9,193,547
|
||||||
|
||||||||
Diluted Shares:
|
||||||||
Basic Shares
|
8,995,819
|
9,193,547
|
||||||
Weighted average dilutive securities
|
207,709
|
342,680
|
||||||
Dilutive Shares
|
9,203,528
|
9,536,227
|
|
|
|
||||||
|
As of December 31,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Computer software and hardware and capitalized internal use software
|
$
|
11,729
|
$
|
12,035
|
||||
Furniture and equipment
|
1,252
|
1,272
|
||||||
Leasehold improvements
|
892
|
942
|
||||||
|
||||||||
|
13,873
|
14,249
|
||||||
Less—Accumulated depreciation and amortization
|
(12,280
|
)
|
(12,620
|
)
|
||||
|
||||||||
Property and Equipment, net
|
$
|
1,593
|
$
|
1,629
|
|
|
|
|
December 31, 2012
|
||
Intangible Asset
|
|
Estimated Useful Life
|
|
Gross
|
Accumulated Amortization
|
Net
|
Trademarks/trade names
|
|
5 years
|
|
$5,540
|
($5,023)
|
$517
|
Software and publications
|
|
3 years
|
|
1,300
|
(992)
|
308
|
Customer relationships
|
|
3 years
|
|
1,870
|
(1,427)
|
443
|
Employment/non-compete agreements
|
|
5 years
|
|
500
|
(229)
|
271
|
|
|
|
|
$9,210
|
($7,671)
|
$1,539
|
Year
|
Amortization Expense
|
||||
|
(in thousands)
|
||||
|
|
||||
2013
|
$
|
1,036
|
|||
2014
|
284
|
||||
2015
|
208
|
||||
2016
|
3
|
||||
2017
|
—
|
||||
|
$
|
1,531
|
|
As of December 31,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Compensation and related costs and professional fees
|
$
|
2,006
|
$
|
2,084
|
||||
Other accrued expenses
|
2,847
|
2,221
|
||||||
Amounts due to customers
|
149
|
180
|
||||||
Other current liabilities
|
375
|
509
|
||||||
Total accrued expenses and other current liabilities
|
$
|
5,377
|
$
|
4,994
|
4. | Commitments and Contingencies |
|
|
||||
Years Ending December 31,
|
|
||||
2013
|
$
|
656
|
|||
2014
|
404
|
||||
Thereafter
|
21
|
||||
|
|||||
|
$
|
1,081
|
|||
|
6. | Stockholders' Equity |
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Share-based compensation expense:
|
|
|
||||||
Cost of revenues
|
$
|
46
|
$
|
34
|
||||
Sales and marketing
|
225
|
358
|
||||||
Technology support
|
288
|
332
|
||||||
General and administrative
|
356
|
308
|
||||||
|
||||||||
Share-based compensation expense
|
915
|
1,032
|
||||||
|
||||||||
Amount capitalized to internal use software
|
5
|
10
|
||||||
|
||||||||
Total share-based compensation expense
|
$
|
910
|
$
|
1,022
|
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
Expected volatility
|
84
|
%
|
84
|
%
|
||||
Expected risk-free interest rate
|
0.6
|
%
|
1.4
|
%
|
||||
Expected life (years)
|
4.2
|
4.1
|
|
|
|
|
|
||||||||||||
|
Number of
Options |
Weighted Average
Exercise Price per Share |
Weighted
Average Remaining Contractual Term |
Aggregate
Intrinsic Value |
||||||||||||
|
|
|
(years)
|
(thousands)
|
||||||||||||
Outstanding at December 31, 2011
|
1,547,544
|
$
|
6.46
|
6.3
|
|
|||||||||||
Granted
|
330,099
|
3.88
|
|
|||||||||||||
Exercised
|
(10,982
|
)
|
1.97
|
|
||||||||||||
Forfeited or expired
|
(307,322
|
)
|
5.59
|
|
||||||||||||
|
|
|||||||||||||||
Outstanding at December 31, 2012
|
1,559,339
|
$
|
6.12
|
5.6
|
$
|
766
|
||||||||||
|
||||||||||||||||
Vested and expected to vest at December 31, 2012
|
1,529,929
|
$
|
6.15
|
5.6
|
$
|
764
|
||||||||||
|
||||||||||||||||
Exercisable at December 31, 2012
|
1,130,140
|
$
|
6.83
|
5.5
|
$
|
732
|
Number of Shares
|
||||
Stock options outstanding
|
1,559,339
|
|||
Authorized for future grants under stock-based incentive plans
|
527,582
|
|||
Reserved for exercise of Warrant
|
400,000
|
|||
Reserved for conversion of promissory note
|
1,075,268
|
|||
Total
|
3,562,189
|
|
|
|
||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Current:
|
|
|
||||||
Federal
|
$
|
12
|
$
|
—
|
||||
State
|
66
|
91
|
||||||
|
||||||||
|
78
|
91
|
||||||
Deferred:
|
||||||||
Federal
|
225
|
218
|
||||||
State
|
41
|
40
|
||||||
|
||||||||
|
266
|
258
|
||||||
|
||||||||
Total income tax expense
|
$
|
344
|
$
|
349
|
||||
|
|
|
|
||||||
|
2012
|
2011
|
||||||
Tax provision at U.S. federal statutory rates
|
35.0
|
%
|
35.0
|
%
|
||||
State taxes
|
5.9
|
11.9
|
||||||
State rate adjustment
|
8.8
|
—
|
||||||
Non-deductible permanent items
|
0.7
|
2.0
|
||||||
Stock options
|
3.4
|
0.4
|
||||||
Other
|
(0.7
|
)
|
9.2
|
|||||
Change in federal valuation allowance
|
(33.2
|
)
|
(12.9
|
)
|
||||
|
||||||||
Effective income tax rate
|
19.9
|
%
|
45.6
|
%
|
||||
|
|
|
|
||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Deferred tax assets:
|
|
|
||||||
Allowance for doubtful accounts
|
$
|
160
|
$
|
211
|
||||
Accrued liabilities
|
248
|
269
|
||||||
Net operating loss carry-forwards
|
40,350
|
40,845
|
||||||
Fixed assets
|
144
|
134
|
||||||
Intangible assets
|
1,991
|
2,229
|
||||||
Share-based compensation expense
|
944
|
696
|
||||||
Deferred revenue
|
2
|
4
|
||||||
Other
|
44
|
69
|
||||||
|
||||||||
Total gross deferred tax assets
|
43,883
|
44,457
|
||||||
Valuation allowance
|
(43,883
|
)
|
(44,457
|
)
|
||||
Deferred tax liabilities:
|
||||||||
Tax deductible goodwill
|
(620
|
)
|
(354
|
)
|
||||
|
||||||||
Total gross deferred tax liabilities
|
(620
|
)
|
(354
|
)
|
||||
|
||||||||
Net deferred income taxes
|
$
|
(620
|
)
|
$
|
(354
|
)
|
||
|
|
|
||||
2021
|
$
|
24.4
|
|||
2022
|
1.7
|
||||
2023
|
—
|
||||
2024
|
4.1
|
||||
2025
|
7.7
|
||||
2026
|
26.4
|
||||
2027
|
15.5
|
||||
2028
|
5.1
|
||||
2029
|
8.6
|
||||
2030
|
11.6
|
||||
2031
|
1.3
|
||||
|
|||||
|
$
|
106.4
|
|||
|
|
|
||||
2013
|
$
|
3.1
|
|||
2014
|
4.6
|
||||
2015
|
6.6
|
||||
2016
|
21.3
|
||||
2017
|
3.2
|
||||
2028
|
2.7
|
||||
2029
|
5.8
|
||||
2030
|
11.0
|
||||
2031
|
1.4
|
||||
California NOLs
|
59.7
|
||||
Other State NOLs
|
6.2
|
||||
Total State NOLs
|
$
|
65.9
|
|
|
|
||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Balance at January 1,
|
$
|
500
|
$
|
500
|
||||
Additions based on tax positions related to the current year
|
—
|
—
|
||||||
Additions based on tax positions related to prior years
|
136
|
|||||||
Reductions based on tax positions related to prior years and settlements
|
—
|
—
|
||||||
Reductions based on the lapse of the statutes of limitations
|
—
|
—
|
||||||
|
||||||||
Balance at December 31,
|
$
|
636
|
$
|
500
|
||||
|
8. | Quarterly Financial Data (Unaudited) |
|
|
|
|
|
|
|
|
|
||||||||||||||||||||||||
|
Quarter Ended
|
|||||||||||||||||||||||||||||||
|
Dec 31,
2012 |
Sep 30,
2012 |
Jun 30,
2012 |
Mar 31,
2012 |
Dec 31,
2011 |
Sep 30,
2011 |
Jun 30,
2011 |
Mar 31,
2011 |
||||||||||||||||||||||||
|
(in thousands, except per-share amounts)
|
|||||||||||||||||||||||||||||||
Total net revenues
|
$
|
16,911
|
$
|
17,454
|
$
|
15,731
|
$
|
16,705
|
$
|
16,223
|
$
|
16,310
|
$
|
15,247
|
$
|
16,032
|
||||||||||||||||
Gross profit
|
6,385
|
6,715
|
6,335
|
6,836
|
6,889
|
6,572
|
6,362
|
6,160
|
||||||||||||||||||||||||
Net income (loss)
|
$
|
351
|
$
|
551
|
$
|
231
|
$
|
253
|
$
|
341
|
$
|
446
|
$
|
199
|
$
|
(571
|
)
|
|||||||||||||||
Basic earnings (loss) per share
|
$
|
0.04
|
$
|
0.06
|
$
|
0.03
|
$
|
0.01
|
$
|
0.01
|
$
|
0.01
|
$
|
0.00
|
$
|
(0.01
|
)
|
|||||||||||||||
Diluted earnings (loss) per share
|
$
|
0.04
|
$
|
0.06
|
$
|
0.02
|
$
|
0.01
|
$
|
0.01
|
$
|
0.01
|
$
|
0.00
|
$
|
(0.01
|
)
|
|
|
|
||||||
|
Years Ended December 31,
|
|||||||
|
2012
|
2011
|
||||||
|
(in thousands)
|
|||||||
Allowance for bad debts:
|
|
|
||||||
Beginning balance
|
$
|
219
|
$
|
355
|
||||
Additions
|
163
|
130
|
||||||
Write-offs
|
(114
|
)
|
(266
|
)
|
||||
|
||||||||
Ending balance
|
$
|
268
|
$
|
219
|
||||
|
||||||||
Allowance for customer credits:
|
||||||||
Beginning balance
|
$
|
321
|
$
|
266
|
||||
Additions
|
391
|
833
|
||||||
Write-offs
|
(554
|
)
|
(778
|
)
|
||||
|
||||||||
Ending balance
|
$
|
158
|
$
|
321
|
||||
|
||||||||
Tax valuation allowance:
|
||||||||
Beginning balance
|
$
|
44,457
|
$
|
44,766
|
||||
Charged (credited) to tax expense
|
(574
|
)
|
(309
|
)
|
||||
|
||||||||
Ending balance
|
$
|
43,883
|
$
|
44,457
|
Number
|
Description
|
|
|
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 Securities and Exchange Commission ("
SEC
") on November 12, 2010 (SEC File No. 001-34761) ("
3
rd
Quarter 2010 Form 10-Q
")
|
|
|
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 are 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
Fourth Certificate of Amendment to Fifth Amended and Restated Certificate of Incorporation of Autobytel dated July 10, 2012, which is incorporated herein by reference to Exhibit 3.1 of the Current Report on Form 8-K filed with the SEC on July 12, 2012
(SEC File No. 001-34761);
|
|
|
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. 000-22239); and Amendment to Third Amended and Restated Bylaws of Autobytel adopted on 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. 001-34761)
|
|
|
4.1
|
Form of Common Stock Certificate of Autobytel, which 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 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., which is incorporated herein 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, which is incorporated herein by reference to Exhibit 4.3 to the Quarterly Report on Form 10-Q filed with the SEC on November 8, 2012 (SEC File No. 001-34761)
|
|
|
10.1**
|
Form of Amended and Restated Indemnification Agreement between Autobytel and its directors and officers, which is incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed with the SEC on July 22, 2010 (SEC File No. 001-34761)
|
|
|
10.2**
|
Form of Outside Director Stock Option Agreement pursuant to the 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on September 14, 2005 (SEC File No. 000-22239) ("
September 2005 Form 8-K
")
|
|
|
10.3**
|
Form of Letter Agreement (amending certain stock option agreements with Outside Directors), which is incorporated herein by reference to Exhibit 10.2 of the September 2005 Form 8-K
|
|
|
10.4**
|
Autobytel.com inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.8 of Amendment No. 1 to the S-1 Registration Statement filed with the SEC on February 9, 1999 (SEC File No. 333-70621) ("
Amendment No. 1 to S-1 Registration Statement
")
|
|
|
10.5**
|
Autobytel.com inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.30 of Amendment No.1 to S-1 Registration Statement
|
|
|
10.6**
|
Autobytel.com inc. 1999 Employee and Acquisition Related Stock Option Plan, which is incorporated herein by reference to Exhibit 10.1 of the Registration Statement on Form S-8 filed with the SEC on November 1, 1999 (SEC File No. 333-90045)
|
|
|
10.7**
|
Amendment No. 1 to the Autobytel.com Inc. 1998 Stock Option Plan dated September 22, 1999, which is incorporated herein by reference to Exhibit 10.2 of Form 10-Q for the quarterly period ended September 30, 1999 filed with the SEC on November 12, 1999 (SEC File No. 000-22239)
|
|
|
10.8**
|
Amendment No. 1 to the Autobytel.com Inc. 1999 Stock Option Plan dated September 22, 1999, which is incorporated herein by reference to Exhibit 10.1 of Form 10-Q for the quarterly period ended September 30, 1999 filed with the SEC on November 12, 1999 (SEC File No. 000-22239)
|
|
|
10.9**
|
Auto-By-Tel Corporation 1996 Stock Incentive Plan and related agreements, which are incorporated herein by reference to Exhibit 10.6 of Amendment No. 1 to S-1 Registration Statement
|
|
|
10.10**
|
Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit 99.1 of the Registration Statement on Form S-8 filed with the SEC on June 15, 2000 (SEC File No. 333-39396)
|
|
|
10.11**
|
Autobytel.com Inc. 2001 Restricted Stock Plan, which is incorporated herein by reference to Annex D to the Registration Statement on Form S-4 originally filed with the SEC on May 11, 2001 (SEC File No. 333-60798) and amended on July 17, 2001
|
|
|
10.12**
|
Amendment No. 1 to the Auto-by-Tel Corporation 1996 Stock Incentive Plan, which is incorporated herein by reference to Exhibit (d)(2) of Schedule TO filed with the SEC on December 14, 2001 (SEC File No. 005-58067) ("
Schedule TO
")
|
|
|
10.13**
|
Amendment No. 2 to the Autobytel.com Inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(5) of the Schedule TO
|
|
|
10.14**
|
Amendment No. 2 to the Autobytel.com Inc. 1999 Stock Option Plan is incorporated herein by reference to Exhibit (d)(8) of the Schedule TO
|
|
|
10.15**
|
Amendment No. 1 to the Autobytel.com Inc. 1999 Employee and Acquisition Related Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(10) of the Schedule TO
|
|
|
10.16**
|
Amendment No. 1 to the Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(12) of the Schedule TO
|
|
|
10.17**
|
Amendment No. 2 to the Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.46 of the Annual Report on Form 10-K for the Year Ended December 31, 2001 filed with the SEC on March 22, 2002 (SEC File No. 000-22239)
|
|
|
10.18**
|
Form of Stock Option Agreement pursuant to Auto-by-Tel Corporation 1996 Stock Incentive Plan, which is incorporated herein by reference to Exhibit (d)(13) of the Schedule TO
|
|
|
10.19**
|
Form of Stock Option Agreement pursuant to Autobytel.com Inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(14) of the Schedule TO
|
|
|
10.20**
|
Form of Stock Option Agreement pursuant to Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(15) of the Schedule TO
|
|
|
10.21**
|
Form of Stock Option Agreement pursuant to Autobytel.com Inc. 1999 Employee and Acquisition Related Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(16) of the Schedule TO
|
|
|
10.22**
|
Form of Stock Option Agreement pursuant to Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(17) of the Schedule TO
|
|
|
10.23**
|
Form of Performance Stock Option Agreement pursuant to Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(18) of the Schedule TO
|
|
|
10.24**
|
Form of Non-employee Director Stock Option Agreement pursuant to Auto-by-Tel Corporation 1996 Stock Incentive Plan, which is incorporated herein by reference to Exhibit (d)(19) of the Schedule TO
|
|
|
10.25**
|
Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 4.7 of Post-Effective Amendment to Registration Statement on Form S-8 filed with the SEC on July 31, 2003 (SEC File No. 333-67692)
|
|
|
10.26**
|
Form of Outside Director Stock Option Agreement pursuant to the Autobytel 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on November 3, 2004 (SEC File No. 000-22239) ("
November 3, 2004 Form 8-K
")
|
|
|
10.27**
|
Form of Outside Director Stock Option Agreement pursuant to the Autobytel 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 10.2 of the November 3, 2004 Form 8-K
|
|
|
10.28**
|
Autobytel Inc. 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 4.8 of the Registration Statement on Form S-8 filed with the SEC on June 28, 2004 (SEC File No. 333-116930) ("
2004 Form S-8
")
|
|
|
10.29**
|
Form of Employee Stock Option Agreement pursuant to the Autobytel 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 4.9 of the 2004 Form S-8
|
|
|
10.30**
|
Form of Stock Option Agreement pursuant to the Autobytel 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 10.65 of the Annual Report on Form 10-K for the Year Ended December 31, 2004 filed with the SEC on May 31, 2005 (SEC File No. 000-22239)
|
|
|
10.31**
|
2006 Inducement Stock Option Plan, which is incorporated herein by reference to Exhibit 4.9 of the Registration Statement on Form S-8 filed with the SEC on June 16, 2006 (SEC File No. 333-135076) ("
2006 Form S-8
")
|
|
|
10.32**
|
Form of Employee Inducement Stock Option Agreement, which is incorporated herein by reference to Exhibit 4.10 of the 2006 Form S-8
|
|
|
10.33**
|
Letter Agreement dated October 30, 2007 between the Company and Curtis DeWalt, which is incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the SEC on November 15, 2007 (SEC File No. 000-22239)
|
|
|
10.34**
|
Letter Agreement dated October 10, 2006 between the Company and Glenn E. Fuller, as amended by Memorandum dated April 18, 2008, Memorandum dated as of December 8, 2008, and Memorandum dated as of March 1, 2009, which are incorporated herein by reference to Exhibit 10.77 of the 2008 Form 10-K
|
|
|
10.35**
|
Amended and Restated Severance Agreement dated as of September 29, 2008 between the Company and Glenn E. Fuller, which is incorporated herein by reference to Exhibit 10.4 of the Current Report on Form 8-K filed with the SEC on October 3, 2008 (SEC File No. 000-22239)
|
|
|
10.36**
|
Letter Agreement dated October 4, 2007 between the Company and Curtis E. DeWalt, as amended by Memorandum dated as of December 8, 2008 and Memorandum dated March 1, 2009, which are incorporated herein by reference to Exhibit 10.79 of the 2008 Form 10-K
|
|
|
10.37**
|
Amended and Restated Severance Agreement dated as of September 29, 2008 between the Company and Curtis E. DeWalt, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on March 9, 2009 (SEC File No. 000-22239)
|
|
|
10.38**
|
Letter Agreement dated August 6, 2004 between the Company and Wesley Ozima, as amended by Memorandum dated March 1, 2009, which are incorporated herein by reference to Exhibit 10.81 of the 2008 Form 10-K
|
|
|
10.39**
|
Amended and Restated Severance Agreement dated as of November 15, 2008 between the Company and Wesley Ozima, which is incorporated herein by reference to Exhibit 10.82 of the 2008 Form 10-K
|
|
|
10.40**
|
Form of Employee Stock Option Agreement pursuant to the 1998 Stock Option Plan, the 1999 Employee and Acquisition Related Stock Option Plan and the 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the SEC on October 3, 2008 (SEC File No. 000-22239) ("
October 2008 Form 8-K
")
|
|
|
10.41**
|
Amendment No. 2 to the Autobytel.com Inc. 1999 Employee and Acquisition Related Stock Option Plan dated May 1, 2009, which is incorporated herein by reference to Exhibit 10.86 of the Quarterly Report on Form 10-Q for the Quarter Ended June 30, 2009 filed with the SEC on July 24, 2009 (SEC File No. 000-22239) ("
Second Quarter 2009 Form 10-Q
")
|
|
|
10.42**
|
Amendment No. 3 to the Autobytel.com Inc. 2000 Stock Option Plan dated May 1, 2009, which is incorporated herein by reference to Exhibit 10.87 of the Second Quarter 2009 Form 10-Q
|
|
|
10.43**
|
Amendment No. 1 to the Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan dated May 1, 2009, which is incorporated herein by reference to Exhibit 10.88 of the Second Quarter 2009 Form 10-Q
|
|
|
10.44**
|
Amendment No. 1 to the Autobytel Inc. 2004 Restricted Stock and Option Plan dated May 1, 2009, which is incorporated herein by reference to Exhibit 10.89 of the Second Quarter 2009 Form 10-Q
|
|
|
10.45**
|
Amendment No. 1 to the Autobytel Inc. 2006 Inducement Stock Option Plan dated May 1, 2009, which is incorporated herein by reference to Exhibit 10.90 of the Second Quarter 2009 Form 10-Q
|
|
|
10.46**
|
Autobytel Inc. Amended and Restated Employment Agreement dated effective as of April 3, 2009 between Autobytel and Jeffrey H. Coats, which is incorporated herein by reference to Exhibit 10.91 of the Second Quarter 2009 Form 10-Q
|
|
|
10.47**
|
Autobytel Inc. 2000 Stock Option Plan, Stock Option Award Agreement dated effective as of April 3, 2009 between Autobytel and Jeffrey H. Coats, which is incorporated herein by reference to Exhibit 10.92 of the Second Quarter 2009 Form 10-Q
|
|
|
10.48**
|
Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan, Stock Option Award Agreement dated effective as of April 3, 2009 between Autobytel and Jeffrey H. Coats, which is incorporated herein by reference to Exhibit 10.93 of the Second Quarter 2009 Form 10-Q
|
|
|
10.49**
|
Autobytel Inc. 2004 Restricted Stock and Option Plan, Stock Option Award Agreement dated effective as of April 3, 2009 between Autobytel and Jeffrey H. Coats, which is incorporated herein by reference to Exhibit 10.94 of the Second Quarter 2009 Form 10-Q
|
|
|
10.50**
|
Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.2 of the Current Report on Form 8-K filed with the SEC on June 25, 2010 (SEC File No. 001-34761) ("
June 2010 Form 8-K
")
|
|
|
10.51**
|
Form of Employee Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.58 of the Annual Report on Form 10-K for the Year Ended December 31, 2011 filed with the SEC on March 1, 2012 (SEC File No. 001-34761) ("
2011 Form 10-K
")
|
|
|
10.52**
|
Form of 2012 Performance-Based Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.59 of the 2011 Form 10-K
|
|
|
10.53**
|
Form of Non-Employee Director Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.60 of the 2011 Form 10-K
|
|
|
10.54**
|
Form of (Management) Employee Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.61 of the 2011 Form 10-K
|
|
|
10.55**
|
Form of Indemnification Agreement between Autobytel and its directors and officers, which is incorporated herein by reference to Exhibit 10.63 of the Annual Report on Form 10-K filed with the SEC on March 10, 2011 (SEC File No. 001-34761) (
"2010 Form 10-K
")
|
|
|
10.56**
|
Amendment No. 1 to Amended and Restated Employment Agreement between Autobytel and Jeffrey H. Coats effective as of December 17, 2010, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on December 23, 2010 (SEC File No. 001-34761)
|
|
|
10.57
|
Standstill Agreement between Autobytel, CCM Master Qualified Fund, Ltd., a Cayman Islands exempted company, Coghill Capital Management LLC and Clint Coghill dated January 13, 2009, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on January 15, 2009 (SEC File No. 000-22239)
|
|
|
10.58
|
Standstill and Voting Agreement dated effective as of November 30, 2010 by and between Autobytel and Artis Capital Management, Inc., Artis Capital Management, L.P., and certain of its affiliates and subsidiaries, which is incorporated herein by reference to Exhibit 10.1 of the Current Report on Form 8-K filed with the SEC on December 3, 2010 (SEC File No. 001-34761)
|
|
|
10.59
|
Convertible Subordinated Promissory Note dated September 16, 2010 (Principal Amount $5,000,000) issued by Autobytel to Autotropolis, Inc. and Cyber Ventures, Inc., which is incorporated herein by reference to Exhibit 4.5 of the 3
rd
Quarter 2010 Form 10-Q
|
|
|
10.60
|
Warrant to Purchase 2,000,000 Shares of Autobytel Common Stock dated September 16, 2010 issued by Autobytel to Autotropolis, Inc. and Cyber Ventures, Inc., which is incorporated herein by reference to Exhibit 4.6 of the 3
rd
Quarter 2010 Form 10-Q
|
|
|
10.61
|
Shareholders Agreement dated as of September 16, 2010 by and among Autobytel, 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, which is incorporated herein by reference to Exhibit 4.7 of the 3
rd
Quarter 2010 Form 10-Q
|
|
|
10.62**
|
Letter Agreement dated March 9, 2010 between Autobytel and Kimberly Boren, as amended by Memorandum dated December 21, 2010 and Memorandum dated as of December 1, 2011, which are incorporated herein by reference to Exhibit 10.73 of the 2011 Form 10-K
|
|
|
10.63**
|
Amended and Restated Severance Benefits Agreement dated as of February 25, 2011 between Autobytel and Kimberly Boren, which is incorporated herein by reference to Exhibit 10.74 of the 2011 Form 10-K
|
|
|
10.64**
|
Letter Agreement dated as of September 17, 2010 between Autobytel and William Ferriolo, as amended by Memorandum dated as of December 1, 2011, which is incorporated herein by reference to Exhibit 10.75 of the 2011 Form 10-K
|
|
|
10.65**
|
Severance Benefits Agreement dated as of September 17, 2010 between Autobytel and William Ferriolo, which is incorporated herein by reference to Exhibit 10.76 of the 2011 Form 10-K
|
|
|
10.66**
|
Letter Agreement dated May 21, 2007 between Autobytel and John Steerman, as amended by Memorandum dated March 20, 2009, Memorandum dated September 30, 2009 and Memorandum dated as of December 1, 2011, which are incorporated herein by reference to Exhibit 10.77 of the 2011 Form 10-K
|
|
|
10.67**
|
Severance Agreement dated as of October 1, 2009 between Autobytel and John Steerman, which is incorporated herein by reference to Exhibit 10.78 of the 2011 Form 10-K
|
|
|
10.68
|
Lease Agreement dated April 6, 1997 between The Provider Fund, The Colton Company and Autobytel ("
Irvine Lease
"), as amended by Amendment No. 12 to Lease dated February 6, 2009, Amendment No. 13 to Lease dated March 5, 2009, and Amendment No. 14 to Lease dated November 29, 2010 , which are incorporated herein by reference to Exhibit 10.79 to the 2011 Form 10-K
|
|
|
10.69*
|
Amendment No. 15 to Irvine Lease dated October 31, 2012
|
|
|
10.70* **
|
Amendment No. 1 to Amended and Restated Severance Benefits Agreement dated November 14, 2012 between Autobytel and Kimberly Boren
|
|
|
10.71* **
|
Amendment No. 2 to Amended and Restated Employment Agreement dated December 14, 2012 between Autobytel and Jeffrey H. Coats
|
|
|
10.72* **
|
Amendment No. 1 to Amended and Restated Severance Agreement dated October 19, 2012 between Autobytel and Curtis E. DeWalt
|
|
|
10.73* **
|
Amendment No. 1 to Amended and Restated Severance Agreement dated December 14, 2012 between Autobytel and Glenn E. Fuller
|
|
|
10.74* **
|
Amendment No. 1 to Amended and Restated Severance Agreement dated October 16, 2012 between Autobytel and Wesley Ozima
|
|
|
10.75* **
|
Amendment No. 1 to Severance Agreement dated September 19, 2012 between Autobytel and John D. Steerman
|
|
|
10.76* **
|
Amendment No. 2 to Severance Agreement dated November 7, 2012 between Autobytel and John D. Steerman
|
|
|
10.77* **
|
Amendment No. 1 to Severance Benefits Agreement dated November 30, 2012 between Autobytel and William Ferriolo
|
|
|
10.78
|
Standstill and Voting Agreement dated effective as of August 8, 2012 by and between Autobytel and Mercury Management, L.L.C., Mercury Ventures II, Ltd., Mercury Fund IX, Ltd. Mercury Fund X, Ltd. and Kevin Howe, which is incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on August 15, 2012 (SEC File No. 001-34761)
|
|
|
10.79* **
|
Form of 2013 Performance-Based Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan
|
|
|
10.80*
|
Loan Agreement between Autobytel and Union Bank, N.A. dated as of February 26, 2013, with Commercial Promissory Note and Security Agreement
|
|
|
10.81*
|
Assignment Agreement dated February 26, 2013 by and between Autobytel and Lead Relay, LLC
|
|
|
21.1*
|
Subsidiaries of Autobytel Inc.
|
|
|
23.1*
|
Consent of Independent Registered Public Accounting Firm, Moss Adams LLP
|
|
|
23.2*
|
Consent of Independent Registered Public Accounting Firm, Ernst & Young LLP
|
|
|
24.1*
|
Power of Attorney (included in the signature page hereto)
|
|
|
31.1*
|
Chief Executive Officer Section 302 Certification of Periodic Report dated February 28, 2013
|
|
|
31.2*
|
Chief Financial Officer Section 302 Certification of Periodic Report dated February 28, 2013
|
|
|
32.1*
|
Chief Executive Officer and Chief Financial Officer Section 906 Certification of Periodic Report dated February 28, 2013
|
* | Filed herewith. |
** | Management Contract or Compensatory Plan or Arrangement. |
‡ | Certain schedules in this Exhibit have been omitted in accordance with Item 601(b)(2) of Regulation S-K. Autobytel Inc. will furnish supplementally a copy of any omitted schedule or exhibit to the Securities and Exchange Commission upon request; provided, however, that Autobytel Inc. 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. |
A.
|
Tenant is a party to that certain Lease dated April 3, 1997, as amended in Amendment No. 1 to Lease dated July 9, 1998, Amendment No. 2 to Lease dated May 16, 2001, Amendment No. 3 to Lease dated May 16, 2001, Amendment No. 4 to Lease dated August 8, 2002, Amendment No. 5 to Lease dated September 12, 2003, Amendment No. 6 to Lease dated January 6, 2005, Amendment No. 7 to Lease dated March 14, 2005, Amendment No. 8 to Lease dated July 7, 2005, Amendment No. 9 to Lease dated July 26, 2005, Amendment No. 10 to Lease dated December 1, 2005, Notice of Lease Term Dates dated January 11, 2006, Amendment No. 11 to Lease dated January 19, 2006, Lease Surrender and Termination Agreement dated March 31, 2008, Amendment No. 12 to Lease dated February 6, 2009, Amendment No. 13 to Lease dated March 5, 2009, and Amendment No. 14 to Lease dated November 29, 2010 (collectively the "Lease") covering certain Premises located at the second (2
nd
) and third (3
rd
) floors at 18872 MacArthur Blvd., City of Irvine, County of Orange, State of California (collectively, the "Current Leased Premises") consisting of approximately 26,156 rentable square feet, all as more particularly set forth in the Lease.
|
B.
|
Landlord and Tenant mutually agree to further amend the Lease on the terms and conditions set forth here in this Amendment No. 15.
|
1.
|
Options to Renew
.
Provided Tenant is not in default or breach under any of the terms, covenants, or conditions of this Lease, Tenant shall have one (1) option (the "Option to Renew") to renew this Lease for a period of three (3) years (the "Renewal Term") upon written notice to Landlord not less than two hundred seventy (270) days prior to the expiration of the existing term, upon the same terms and conditions of this Lease existing at the expiration of the existing term. The Base Rent for year one (1) of the extension shall be $41,849.60 per month, the Base Rent for year two (2) of the extension shall be $43,157.40 per month, and Base Rent for year three (3) of the extension shall be $44,465.20 per month. The Tenant shall take the Premises "as-is" during the Renewal Term, subject to Landlord's continuing repair and maintenance obligations under the Lease. Landlord shall not be responsible for any Tenant broker representative commission if Tenant exercises the Option to Renew. All other terms and conditions of the Lease shall continue to apply. Should Tenant decide to exercise this Option to Renew, the Base Year shall be amended to 2014. This Option to Renew shall be personal to Tenant.
|
(a)
|
Tenant is not in default of the Lease and has no financial responsibility owed to Landlord;
|
(b)
|
This Right to Terminate is for the entire Leased Premises, not a portion thereof;
|
(c)
|
Tenant provides Landlord with prior written notice on or before January 31, 2015 to terminate the lease on July 31, 2015 and on or before January 31, 2016 to terminate the lease on July 31, 2016 of its intent to exercise this termination option ("Termination Notice Date");
|
(d)
|
There is no fee or cost to terminate the Lease pursuant to this Section; and
|
(e)
|
This right to terminate the Lease shall be personal to Tenant, and shall be void in the event of an assignment, transfer or sublease; provided, however, that this right to terminate the Lease may be exercised by any acquiror of Tenant in a change in control of Tenant or by any acquiror of all or substantially all of Tenant's assets.
|
2.
|
Condition of Premises
.
Tenant acknowledges that Landlord has made no representation and has given no warranty to Tenant regarding the fitness of the Leased Premises for Tenant's continued use. Tenant shall continue its tenancy in the Leased Premises in its "AS-IS" condition and "WITH ALL FAULTS," subject to Landlord's continuing repair and maintenance obligations under the Lease.
|
3.
|
Parking
.
The parking pursuant to the Lease shall be at no cost through the Renewal Term.
|
4.
|
Authority
.
Tenant hereby represents and warrants that Tenant is a duly formed and existing entity qualified to do business in California and that Tenant has full right and authority to execute and deliver this Amendment No. 15 and that each person signing on behalf of Tenant is authorized to do so.
|
5.
|
Attorneys' Fees
.
If either party commences litigation against the other for the specific performance of this Amendment No. 15 for damages for the breach hereof or otherwise for enforcement of any remedy hereunder, the parties hereto agree to and hereby do waive any right to a trial by jury and, in the event of any such commencement of litigation, the prevailing party shall be entitled to recover from the other party such costs and reasonable attorneys' fees as may have been incurred, including any and all costs incurred in enforcing, perfecting and executing such judgment.
|
6.
|
Confirmations
.
Tenant hereby certifies and confirms to Landlord that as of Tenant's execution and delivery hereof, to Tenant's knowledge Landlord is not in material default under the Lease, as amended. Landlord hereby certifies and confirms to Tenant that as of Landlord's execution and delivery hereof, to Landlord's knowledge neither Landlord nor Tenant is in material default under the Lease, as amended.
|
7.
|
Brokers
.
Tenant represents and warrants to Landlord that Tenant has not dealt with any real estate broker or agent in connection with this Amendment No. 15 or its negotiation except Colton Capital Corporation. Tenant shall indemnify, defend, protect and hold Landlord harmless from and against any and all cost, expenses, claims and liabilities (including costs of suit and reasonable attorneys' fees) for any compensation, commission or fees claimed by any other real estate broker or agent in connection with this Amendment or its negotiation by reason of any act of Tenant. Landlord shall be solely responsible for payment of a Broker's commission to the Broker identified above, under the terms of a separate agreement.
|
8.
|
Confidentiality
.
Tenant shall keep confidential and shall not disclose the terms and conditions set forth in this Lease, including, without limitation, the basic rent and additional rent, the term of the Lease and any extensions, and all other financial terms, without the prior written consent of the Landlord except: (1) to Tenant's directors, officers, partners, legal counsel, accountants, financial advisors and similar professionals and consultants to the extent that Tenant deems it necessary or appropriate in connection with the Lease transaction contemplated hereunder (and Tenant shall inform each of the foregoing parties of Tenant's obligations under this Section and shall secure the agreement of such parties to be bound by the confidentiality terms hereof) or (2) as otherwise required by law, rule, regulation or order of any court or administrative or regulatory agency, including any disclosures or filings required by applicable state or federal securities laws, rules, regulations or orders.
|
9.
|
Entire Agreement
. It is understood and acknowledged that there are no oral agreements between the parties hereto affecting the Lease, as amended, and the Lease, as amended, supersedes and cancels any and all previous negotiations, arrangements, brochures, agreements and understandings, if any, between the parties hereto or displayed by Landlord to Tenant with respect to the subject matter thereof, and none thereof shall be used to interpret or construe the Lease, as amended. The Lease and any amendments or side letters or separate agreements executed by Landlord and Tenant in connection with the Lease, as amended and dated of even date herewith contain all of the terms, covenants, conditions, warranties and agreements of the parties relating in any manner to the rental, use and occupancy of the Premises, shall be considered to be the only agreement between the parties hereto and their representatives and agents, none of the terms, covenants, conditions or provisions of the Lease, as amended, can be modified, deleted or added to except in writing signed by the parties hereto. All negotiations and oral agreements acceptable to both parties have been merged into and are included herein. Any deletion of language from the Lease, as amended prior to its execution by Landlord and Tenant shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language.
|
10.
|
Further Assurances
. Tenant shall, upon request by Landlord, execute and deliver such documentation and information and take such other action as may be reasonably necessary to effectuate the intent of this Amendment or to implement the provisions hereof.
|
1.
|
Grant of Options
. The Company hereby grants to Participant non-qualified stock options ("
Options
") to purchase the number of shares of common stock of the Company, par value $0.001 per share, set forth on the signature page to this Agreement ("
Shares
"), at the exercise price per Share set forth on the signature page to this Agreement ("
Exercise Price
"). The Options are not intended to qualify as incentive stock options under Section 422 of the Code.
|
2.
|
Term of Option
. Unless the Options terminate earlier pursuant to the provisions of this Agreement or the Plan, the Options shall expire on the seventh (7
th
) anniversary of the Grant Date ("
Option Expiration Date
").
|
3.
|
Vesting
. The Options shall become vested and exercisable in accordance with the vesting schedule attached hereto as
Exhibit A
and incorporated herein by reference ("
Vesting Schedule
"). No installments of the Options shall vest after Participant's termination of employment for any reason.
|
4.
|
Exercise of Options
.
|
2013 Performance Based
Revision Date 1/28/2013
|
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
2
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
3
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
4
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
5
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
6
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
7
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
8-
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
9
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
10
|
[Name] – 1/24/2013
|
2013 Revenue Scale
|
|
2013 EBITDA Scale
|
||||
Revenue
|
Performance
|
Payout
|
|
EBITDA
|
Performance
|
Payout
|
|
67%
|
1%
|
|
|
67%
|
1%
|
|
68%
|
4%
|
|
|
68%
|
4%
|
|
69%
|
7%
|
|
|
69%
|
7%
|
|
70%
|
10%
|
|
|
70%
|
10%
|
|
71%
|
13%
|
|
|
71%
|
13%
|
|
72%
|
16%
|
|
|
72%
|
16%
|
|
73%
|
19%
|
|
|
73%
|
19%
|
|
74%
|
22%
|
|
|
74%
|
22%
|
|
75%
|
25%
|
|
|
75%
|
25%
|
|
76%
|
28%
|
|
|
76%
|
28%
|
|
77%
|
31%
|
|
|
77%
|
31%
|
|
78%
|
34%
|
|
|
78%
|
34%
|
|
79%
|
37%
|
|
|
79%
|
37%
|
|
80%
|
40%
|
|
|
80%
|
40%
|
|
81%
|
43%
|
|
|
81%
|
43%
|
|
82%
|
46%
|
|
|
82%
|
46%
|
|
83%
|
49%
|
|
|
83%
|
49%
|
|
84%
|
52%
|
|
|
84%
|
52%
|
|
85%
|
55%
|
|
|
85%
|
55%
|
|
86%
|
58%
|
|
|
86%
|
58%
|
|
87%
|
61%
|
|
|
87%
|
61%
|
|
88%
|
64%
|
|
|
88%
|
64%
|
|
89%
|
67%
|
|
|
89%
|
67%
|
|
90%
|
70%
|
|
|
90%
|
70%
|
|
91%
|
73%
|
|
|
91%
|
73%
|
|
92%
|
76%
|
|
|
92%
|
76%
|
|
93%
|
79%
|
|
|
93%
|
79%
|
|
94%
|
82%
|
|
|
94%
|
82%
|
|
95%
|
85%
|
|
|
95%
|
85%
|
|
96%
|
88%
|
|
|
96%
|
88%
|
|
97%
|
91%
|
|
|
97%
|
91%
|
|
98%
|
94%
|
|
|
98%
|
94%
|
|
99%
|
97%
|
|
|
99%
|
97%
|
|
100%
|
100%
|
|
|
100%
|
100%
|
|
101%
|
103%
|
|
|
101%
|
103%
|
|
102%
|
106%
|
|
|
102%
|
106%
|
|
103%
|
109%
|
|
|
103%
|
109%
|
|
104%
|
112%
|
|
|
104%
|
112%
|
|
105%
|
115%
|
|
|
105%
|
115%
|
|
106%
|
118%
|
|
|
106%
|
118%
|
|
107%
|
121%
|
|
|
107%
|
121%
|
|
108%
|
124%
|
|
|
108%
|
124%
|
|
109%
|
127%
|
|
|
109%
|
127%
|
|
110%
|
130%
|
|
|
110%
|
130%
|
|
111%
|
133%
|
|
|
111%
|
133%
|
|
112%
|
136%
|
|
|
112%
|
136%
|
|
113%
|
139%
|
|
|
113%
|
139%
|
|
114%
|
142%
|
|
|
114%
|
142%
|
|
115%
|
145%
|
|
|
115%
|
145%
|
|
116%
|
148%
|
|
|
116%
|
148%
|
|
117%
|
151%
|
|
|
117%
|
151%
|
|
118%
|
154%
|
|
|
118%
|
154%
|
|
119%
|
157%
|
|
|
119%
|
157%
|
|
120%
|
160%
|
|
|
120%
|
160%
|
2013 Performance Based
Revision Date 1/28/2013
|
11
|
[Name] – 1/24/2013
|
2013 Performance Based
Revision Date 1/28/2013
|
12
|
[Name] – 1/24/2013
|
"EBITDA" to be defined as earnings before interest, taxes, depreciation, amortization, non cash share-based compensation, and other non-cash charges expensed for the applicable period.
|
AUTOBYTEL INC.
By:
/
s/ Curtis DeWalt
Curtis DeWalt
Chief Financial Officer
By:
/s/ Glenn E. Fuller
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
Address:
18872 MacArthur Blvd., Suite 200
Irvine California 92612
Telephone: 949-225-4500
Fax : 949-797-0450
|
|
|
|
UNION BANK, N.A.
By:
/s/ Gregory Dubnansky
Gregory Dubnansky
Vice President
Address:
18300 Von Karman Avenue, Suite 310
Irvine, California 92612
Telephone: 949-553-6879
Fax : 949-553-7112
|
|
(a)
|
BASE INTEREST RATE.
At Debtor's option, amounts outstanding hereunder in minimum amounts of $ 100,000 shall bear interest at a rate, based on an index selected by Debtor, which is one and one-half percent (1.5 %) per annum in excess of the LIBOR Rate for the Interest Period selected by Debtor, acceptable to Bank.
|
(b)
|
VARIABLE INTEREST RATE.
All principal outstanding hereunder which is not bearing interest at a Base Interest Rate shall bear interest at a rate per annum of one-half percent ( 00.5 %) less than the Reference Rate, which rate shall vary as and when the Reference Rate changes.
|
4.
|
PREPAYMENT.
|
(a)
|
Amounts outstanding under this note bearing interest at a rate based on the Reference Rate may be prepaid in whole or in part at any time, without penalty or premium. Debtor may prepay amounts outstanding under this note bearing interest at a Base Interest Rate in whole or in part provided Debtor has given Bank not less than five (5) Business Days prior written notice of Debtor's intention to make such prepayment and pays to Bank the prepayment fee due as a result. The prepayment fee shall also be paid, if Bank, for any other reason, including acceleration or foreclosure, receives all or any portion of principal bearing interest at a Base Interest Rate prior to its scheduled payment date. The prepayment fee shall be an amount equal to the present value of the product of: (i) the difference (but not less than zero) between (a) the Base Interest Rate applicable to the principal amount which is being prepaid, and (b) the return which Bank could obtain if it used the amount of such prepayment of principal to purchase at bid price regularly quoted securities issued by the United States having a maturity date most closely coinciding with the relevant Base Rate Maturity Date and such securities were held by Bank until the relevant Base Rate Maturity Date ("Yield Rate"); (ii) a fraction, the numerator of which is the number of days in the period between the date of prepayment and the relevant Base Rate Maturity Date and the denominator of which is 365 ; and (iii) the amount of the principal so prepaid (except in the event that principal payments are required and have been made as scheduled under the terms of the Base Interest Rate Loan being prepaid, then an amount equal to the lesser of (A) the amount prepaid or (B) 50% of the sum of (1) the amount prepaid and (2) the amount of principal scheduled under the terms of the Base Interest Rate Loan being prepaid to be outstanding at the relevant Base Rate Maturity Date). Present value under this note is determined by discounting the above product to present value using the Yield Rate as the annual discount factor.
|
(b)
|
In no event shall Bank be obligated to make any payment or refund to Debtor, nor shall Debtor be entitled to any setoff or other claim against Bank, should the return which Bank could obtain under this prepayment formula exceed the interest that Bank would have received if no prepayment had occurred. All prepayments shall include payment of accrued interest on the principal amount so prepaid and shall be applied to payment of interest before application to principal. A determination by Bank as to the prepayment fee amount, if any, shall be conclusive.
|
(c)
|
Bank shall provide Debtor a statement of the amount payable on account of prepayment. Debtor acknowledges that (i) Bank establishes a Base Interest Rate upon the understanding that it apply to the Base Interest Rate Loan for the entire Interest Period, and (ii) Bank would not lend to Debtor without Debtor's express agreement to pay Bank the prepayment fee described above.
|
ASSIGNOR: | Autobytel Inc. |
Signature:
|
/s/ Glenn E. Fuller
|
Name:
|
Glenn E. Fuller
|
Title:
|
EVP, Chief Legal and Administrative
|
Date:
|
February 26, 2013
|
Subsidiary Name
|
Jurisdiction of Incorporation
|
Auto-By-Tel Acceptance Corporation
|
Delaware
|
Auto-By-Tel Insurance Services, Inc.
|
Delaware
|
Car.com, Inc.
|
Delaware
|
Autobytel Dealer Services, Inc.
|
Delaware
|
Autobytel Florida, Inc.
|
Delaware
|
Automotive Service Leads, LLC |
Delaware
|
1. | I have reviewed this annual report on Form 10-K 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 annual report on Form 10-K 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
|
|
|
February 28, 2013
|
|
|
|
|
|
|
|
|
/s/ Curtis E. DeWalt
|
|
|
Curtis E. DeWalt
|
|
|
Senior Vice President and
|
|
|
Chief Financial Officer
|
|
|
February 28, 2013
|
|