x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Delaware
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33-0711569
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(State of Incorporation)
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(I.R.S. Employer Identification No.)
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Title of each class
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Name of each exchange on which registered
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Common Stock, par value $0.001 per share
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The Nasdaq Capital Market
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Large accelerated filer
¨
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Accelerated filer
x
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Non-accelerated filer
¨
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Smaller reporting company
¨
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(Do not check if a smaller reporting company)
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Page
Number
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Part I
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|||
1
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11
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22
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22
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22
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|||
22
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Part II
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|||
23
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|||
24
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|||
25
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|||
38
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|||
38
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|||
38
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38
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39
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Part III
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40
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|||
40
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|||
40
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|||
40
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|||
40
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Part IV
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41
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42
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● |
I
ncreasing 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.
|
● |
I
ncreasing 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.
|
● |
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.
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● |
increasing the quality of the Vehicle Leads sold to our Dealers,
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● |
increasing the number of Dealers in our Dealer network,
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●
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reducing Dealer churn in our Dealer network,
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● |
providing customizable Lead programs to meet our Dealers’ unique marketing requirements,
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● |
providing additional value added marketing services that help Dealers more effectively utilize the internet to market and sell new and used vehicles,
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● |
increasing overall Dealer satisfaction by improving all aspects of our services,
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● |
increasing the size of our retail Dealer footprint,
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● |
focusing on higher revenue Dealers that are more cost-effective to support; and
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● |
enhancing our internal lead generation activities by leveraging our expanded retail lead coverage.
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●
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The effect of unemployment on the number of vehicle purchasers;
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●
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Pricing and purchase incentives for vehicles;
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●
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The expectation that consumers will be purchasing fewer vehicles overall during their lifetime as a result of better quality vehicles and longer warranties;
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●
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The impact of fuel prices on demand for the number and types of vehicles;
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●
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Increases or decreases in the number of retail Dealers or in the number of Manufacturers and other wholesale customers in our customer base;
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●
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Volatility in spending by Manufacturers and others in their marketing budgets and allocations; and
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●
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The competitive impact of consolidation in the online automotive referral industry.
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●
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We may not fully realize all of the anticipated benefits of an acquisition or may not realize them in the timeframe expected, including due to acquisitions where we expand into product and service offerings or enter or expand into markets in which we are not experienced.
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●
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In order to complete acquisitions, we may issue common stock or securities convertible into or exercisable for common stock, potentially creating dilution for existing stockholders. Issuance of equity securities may also restrict utilization of net operating loss carryforwards because of an annual limitation due to ownership change limitations under the Internal Revenue Code.
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●
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We may borrow to finance acquisitions, and the amount and terms of any potential future acquisition-related or other borrowings may not be favorable to the Company and could affect our liquidity and financial condition.
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●
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Acquisitions may result in significant costs and expenses and charges to earnings, including those related to severance pay, early retirement costs, employee benefit costs, goodwill and asset impairment charges, charges from the elimination of duplicative facilities and contracts, assumed litigation and other liabilities, legal, accounting and financial advisory fees, and required payments to executive officers and key employees under retention plans.
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●
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Our due diligence process may fail to identify significant issues with an acquired company that may result in unexpected or increased costs, expenses or liabilities that could make an acquisition less profitable or unprofitable.
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●
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The failure to further our strategic objectives that may require us to expend additional resources to develop products, services and technology internally.
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●
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An announced business combination and investment transaction may not close timely or at all, which may cause our financial results to differ from expectations in a given quarter.
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●
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Business combination and investment transactions may lead to litigation that can be costly to defend or settle, even if no actual liability exists.
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●
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Integration of acquisitions are often complex, time-consuming and expensive and if not successfully integrated could materially and adversely affect our financial performance. The challenges involved with integration of acquisitions include:
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●
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Diversion of management attention to assimilating the acquired business from other business operations and concerns.
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●
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Integration of management information and accounting systems of the acquired business into our systems, and the failure to fully realize all of the anticipated benefits of an acquisition.
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●
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Difficulties in assimilating the operations and personnel of an acquired business into our own business.
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●
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Difficulties in integrating management information and accounting systems of an acquired business into our current systems.
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●
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Convincing our customers and suppliers and the customers and suppliers of the acquired business that the transaction will not diminish client service standards or business focus and that they should not defer purchasing decisions or switch to other suppliers.
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●
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Consolidating and rationalizing corporate IT infrastructure, which may include multiple legacy systems from various acquisitions and integrating software code and business processes.
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●
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Persuading employees that business cultures are compatible, maintaining employee morale, retaining key employees and integrating employees into the Company.
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●
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Coordinating and combining administrative, manufacturing, research and development and other operations, subsidiaries, facilities and relationships with third parties in accordance with local laws and other obligations while maintaining adequate standards, controls and procedures.
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●
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Managing integration issues shortly after or pending the completion of other independent transactions.
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●
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Political, social and economic instability; |
●
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Exposure to different business practices and legal standards, particularly with respect to labor and employment laws and intellectual property; |
●
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Continuation of overseas conflicts and the risk of terrorist attacks and resulting heightened security; |
●
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The imposition of governmental controls and restrictions and unexpected changes in regulatory requirements; |
●
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Theft and other crimes; |
●
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Nationalization of business and blocking of cash flows; |
●
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Changes in taxation and tariffs; |
●
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Difficulties in staffing and managing international operations; and |
●
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Foreign currency exchange fluctuations. |
●
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Actual or anticipated variations in our quarterly operating results;
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●
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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;
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●
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Announcements of new product or service offerings;
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●
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Technological innovations;
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●
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Low trading volumes;
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●
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Concentration of holdings in our common stock resulting in low public float for our shares;
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●
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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;
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●
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Limited analyst coverage of the Company;
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●
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Competitive developments, including actions by Manufacturers;
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●
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Changes in financial estimates by securities analysts or our failure to meet such estimates;
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●
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Conditions and trends in the internet, electronic commerce and automotive industries;
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●
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Adoption of new accounting standards affecting the technology or automotive industry;
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●
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Rumors, whether or not accurate, about us, our industry or possible transactions or other events;
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●
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The impact of open market repurchases of our common stock; and
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●
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General market or economic conditions and other factors.
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●
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Require that actions to be taken by our stockholders may be taken only at an annual or special meeting of our stockholders and not by written consent;
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●
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Specify that special meetings of our stockholders can be called only by our board of directors, a committee of the board of directors, the Chairman of our board of directors or our President;
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●
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Establish advance notice procedures for stockholders to submit nominations of candidates for election to our board of directors and other proposals to be brought before a stockholders meeting;
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●
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Provide that our bylaws may be amended by our board of directors without stockholder approval;
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●
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Allow our board of directors to establish the size of our board of directors;
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●
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Provide that vacancies on our board of directors or newly created directorships resulting from an increase in the number of our directors may be filled only by a majority of directors then in office, even though less than a quorum; and
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●
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Do not give the holders of our common stock cumulative voting rights with respect to the election of directors.
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Item
1B.
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Unresolved Staff Comments
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Item 2.
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Properties
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Item
3.
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Legal Proceedings |
Item 4.
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Mine Safety Disclosures
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Item
5.
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Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities
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Year
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High
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Low
|
||||||
2014
|
||||||||
First Quarter
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$
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18.63
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$
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11.91
|
||||
Second Quarter
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$
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15.09
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$
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10.67
|
||||
Third Quarter
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$
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13.42
|
$
|
7.99
|
||||
Fourth Quarter
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$
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11.77
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$
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8.56
|
||||
2015
|
||||||||
First Quarter
|
$
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14.78
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$
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9.07
|
||||
Second Quarter
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$
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17.97
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$
|
12.68
|
||||
Third Quarter
|
$
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19.79
|
$
|
14.93
|
||||
Fourth Quarter
|
$
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24.57
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$
|
16.30
|
Cumulative Total Return
|
||||||||||||||||||||||||
12/10 | 12/11 | 12/12 | 12/13 | 12/14 | 12/15 | |||||||||||||||||||
Autobytel
|
$ | 100.00 | $ | 81.40 | $ | 92.56 | $ | 351.86 | $ | 253.49 | $ | 524.65 | ||||||||||||
NASDAQ Composite
|
100.00 | 100.53 | 116.92 | 166.19 | 188.78 | 199.95 | ||||||||||||||||||
S&P Automobile Manufacturers
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100.00 | 64.09 | 78.57 | 102.22 | 99.16 | 97.05 | ||||||||||||||||||
S&P Smallcap 600 Automotive Retail
|
100.00 | 114.28 | 133.86 | 187.69 | 214.33 | 235.43 |
Item 6.
|
Selected Financial Data |
Years ended December 31,
|
||||||||||||||||||||
2015
|
2014
|
2013
(1)
|
2012
|
2011
|
||||||||||||||||
(Amounts in thousands, except per-share data)
|
||||||||||||||||||||
RESULTS OF OPERATIONS:
|
||||||||||||||||||||
Total revenues
|
$ | 133,226 | $ | 106,278 | $ | 78,361 | $ | 66,802 | $ | 63,812 | ||||||||||
Income from continuing operations
|
$ | 4,646 | $ | 3,411 | $ | 38,144 | 1,387 | $ | 416 | |||||||||||
Net income
|
$ | 4,646 | $ | 3,411 | $ | 38,144 | 1,387 | $ | 416 | |||||||||||
Basic earnings per common share
|
$ | 0.47 | $ | 0.38 | $ | 4.29 | $ | 0.15 | $ | 0.05 | ||||||||||
Diluted earnings per common share
|
$ | 0.37 | $ | 0.32 | $ | 3.61 | $ | 0.15 | $ | 0.04 | ||||||||||
Weighted average diluted shares
|
12,662 | 11,212 | 10,616 | 9,204 | 9,536 |
(1)
|
Net income in 2013 included a one-time benefit of $35.5 million in connection with the release of a valuation allowance against deferred tax assets.
|
Years ended December 31,
|
||||||||||||||||||||
2015
|
2014
|
2013
|
2012
|
2011
|
||||||||||||||||
(Amounts in thousands)
|
||||||||||||||||||||
FINANCIAL POSITION (1):
|
||||||||||||||||||||
Cash and cash equivalents
|
$ | 23,993 | $ | 20,747 | $ | 18,930 | $ | 15,296 | $ | 11,209 | ||||||||||
Total assets
|
$ | 153,588 | $ | 104,749 | $ | 88,193 | $ | 40,767 | $ | 38,794 | ||||||||||
Non-current liabilities
|
$ | 21,750 | $ | 11,061 | $ | 10,450 | $ | 5,620 | $ | 5,607 | ||||||||||
Accumulated deficit
|
$ | (234,295 | ) | $ | (238,941 | ) | $ | (242,352 | ) | $ | (280,496 | ) | $ | (281,883 | ) | |||||
Stockholders’ equity
|
$ | 108,201 | $ | 69,258 | $ | 64,828 | $ | 25,765 | $ | 24,896 |
(1)
|
See Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Notes to the Consolidated Financial Statements” in Part II, Item 8, of this Annual Report on Form 10-K for information regarding business combinations and other items that may affect comparability.
|
Item
7.
|
Management’s Discussion and Analysis of Financial Condition and Results of Operations |
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Revenues:
|
||||||||||||
Lead fees
|
90.6
|
%
|
94.8
|
%
|
95.4
|
%
|
||||||
Advertising
|
7.9
|
3.9
|
4.2
|
|||||||||
Other revenues
|
1.5
|
1.3
|
0.4
|
|||||||||
Total revenues:
|
100.0
|
100.0
|
100.0
|
|||||||||
Cost of revenues
|
61.2
|
60.7
|
61.1
|
|||||||||
Gross margin
|
38.8
|
39.3
|
38.9
|
|||||||||
Operating expenses:
|
||||||||||||
Sales and marketing
|
12.0
|
13.5
|
12.2
|
|||||||||
Technology support
|
8.8
|
7.5
|
9.3
|
|||||||||
General and administrative
|
9.9
|
10.9
|
12.2
|
|||||||||
Depreciation and amortization
|
2.3
|
1.7
|
1.9
|
|||||||||
Litigation settlements
|
(0.1
|
)
|
(0.1
|
)
|
(0.4
|
)
|
||||||
Total operating expenses
|
32.9
|
33.5
|
35.2
|
|||||||||
Operating income
|
5.8
|
5.8
|
3.7
|
|||||||||
Interest and other income (expense), net
|
0.2
|
(0.7
|
)
|
0.3
|
||||||||
Income tax provision (benefit)
|
2.5
|
1.9
|
(44.7
|
)
|
||||||||
Net income
|
3.5
|
%
|
3.2
|
%
|
48.7
|
%
|
Years Ended
December 31,
|
2015 vs. 2014
Change
|
2014 vs. 2013
Change
|
||||||||||||||||||||||||||
2015
|
2014
|
2013
|
$ | % | $ | % | ||||||||||||||||||||||
Revenues:
|
||||||||||||||||||||||||||||
Lead fees
|
$ | 120,678 | $ | 100,744 | $ | 74,732 | $ | 19,934 | 20 | % | $ | 26,012 | 35 | % | ||||||||||||||
Advertising
|
10,534 | 4,171 | 3,289 | 6,363 | 153 | 882 | 27 | |||||||||||||||||||||
Other revenues
|
2,014 | 1,363 | 340 | 651 | 48 | 1,023 | 301 | |||||||||||||||||||||
Total revenues
|
133,226 | 106,278 | 78,361 | 26,948 | 25 | 27,917 | 36 | |||||||||||||||||||||
Cost of revenues
|
81,586 | 64,465 | 47,915 | 17,121 | 27 | 16,550 | 35 | |||||||||||||||||||||
Gross profit
|
$ | 51,640 | $ | 41,813 | $ | 30,446 | $ | 9,827 | 24 | % | $ | 11,367 | 37 | % |
Years Ended December 31,
|
2015 vs. 2014
Change
|
2014 vs. 2013
Change
|
||||||||||||||||||||||||||
2015
|
2014
|
2013
|
$ | % | $ | % | ||||||||||||||||||||||
Operating expenses:
|
||||||||||||||||||||||||||||
Sales and marketing
|
$ | 15,956 | $ | 14,404 | $ | 9,612 | $ | 1,552 | 11 | % | $ | 4,792 | 50 | % | ||||||||||||||
Technology support
|
11,740 | 8,014 | 7,303 | 3,726 | 46 | 711 | 10 | |||||||||||||||||||||
General and administrative
|
13,189 | 11,538 | 9,554 | 1,651 | 14 | 1,984 | 21 | |||||||||||||||||||||
Depreciation and amortization
|
3,106 | 1,858 | 1,450 | 1,248 | 67 | 408 | 28 | |||||||||||||||||||||
Litigation settlements
|
(108 | ) | (143 | ) | (316 | ) | 35 | (24 | ) | 173 | (55 | ) | ||||||||||||||||
Total operating expenses
|
$ | 43,883 | $ | 35,671 | $ | 27,603 | $ | 8,212 | 23 | % | $ | 8,068 | 29 | % |
Years Ended December31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Net cash provided by operating activities
|
$
|
12,200
|
$
|
7,890
|
$
|
4,332
|
||||||
Net cash used in investing activities
|
(28,105
|
)
|
(12,548
|
)
|
(5,052
|
)
|
||||||
Net cash provided by financing activities
|
19,151
|
6,475
|
4,354
|
Total
|
Less than 1 year
|
1-3 years
|
3-5 years
|
More than 5 years
|
||||||||||||||
Long-term Debt Obligations
(a)
|
$
|
27,000
|
$
|
5,250
|
$
|
16,250
|
$
|
5,500
|
$
|
—
|
||||||||
Operating Lease Obligations
(b)
|
5,523
|
1,810
|
2,263
|
722
|
728
|
|||||||||||||
Total
|
$
|
32,523
|
$
|
7,060
|
$
|
18,513
|
$
|
6,222
|
$
|
728
|
(a)
|
Long-term debt obligations as defined by FASB Topic, “Debt,” and disclosed in Note 5 and 6 of the consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K.
|
(b)
|
Operating lease obligations as defined by FASB Topic, “Accounting for Leases,” and disclosed in Note 5 of the consolidated financial statements included in Part II, Item 8 of this Annual Report on Form 10-K.
|
Note
|
Note
|
|||||||||||
receivable-
|
receivable-
|
|||||||||||
Description
|
long-term
|
Current
|
Investments
|
|||||||||
Balance at December 31, 2014
|
$ | — | $ | 150 | $ | 3,880 | ||||||
Total gains or (losses) (realized or unrealized)
|
— | — | 636 | |||||||||
Purchases
|
375 | — | — | |||||||||
Sales
|
— | — | — | |||||||||
Transfers
|
— | (150 | ) | (3,836 | ) | |||||||
Balance at December 31, 2015
|
$ | 375 | $ | — | $ | 680 |
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
|
||||
F-1 | ||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 |
|
(2)
|
Financial Statement Schedules:
|
|
(3)
|
Exhibits:
|
AUTOBYTEL INC.
|
|||
By:
|
/s/ JEFFREY H. COATS
|
||
Jeffrey H. Coats
|
|||
President, Chief Executive Officer and Director
|
Signature
|
Title
|
Date
|
|
/s/ MICHAEL J. FUCHS
Michael J. Fuchs
|
Chairman of the Board and Director
|
March 10, 2016
|
|
/s/ JEFFREY H. COATS
Jeffrey H. Coats
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
March 10, 2016
|
|
/s/ KIMBERLY BOREN
Kimberly Boren
|
Senior Vice President and Chief Financial Officer (Principal Financial Officer)
|
March 10, 2016
|
|
/s/ WESLEY OZIMA
Wesley Ozima
|
Vice President and Controller (Principal
Accounting Officer)
|
March 10, 2016
|
|
/s/ MICHAEL A. CARPENTER
Michael A. Carpenter
|
Director
|
March 10, 2016
|
|
/s/ MARK N. KAPLAN
Mark N. Kaplan
|
Director
|
March 10, 2016
|
|
/s/ ROBERT J. MYLOD, JR.
Robert J. Mylod, Jr.
|
Director
|
March 10, 2016
|
|
/s/ JEFFREY M. STIBEL
Jeffrey M. Stibel
|
Director
|
March 10, 2016
|
|
/s/ MATIAS DE TEZANOS
Matias de Tezanos
|
Director
|
March 10, 2016
|
|
/s/ JANET M. THOMPSON
Janet M. Thompson
|
Director
|
March 10, 2016
|
|
/s/ JOSE VARGAS
Jose Vargas
|
Director
|
March 10, 2016
|
Page
|
||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 |
December 31,
2015
|
December 31,
2014
|
|||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$
|
23,993
|
$
|
20,747
|
||||
Accounts receivable, net of allowances for bad debts and customer credits of $1,045 and $770 at December 31, 2015 and 2014, respectively
|
28,091
|
18,311
|
||||||
Deferred tax asset
|
3,642
|
5,498
|
||||||
Prepaid expenses and other current assets
|
1,276
|
811
|
||||||
Total current assets
|
57,002
|
45,367
|
||||||
Property and equipment, net
|
4,296
|
1,904
|
||||||
Investments
|
680
|
3,880
|
||||||
Intangible assets, net
|
29,515
|
4,173
|
||||||
Goodwill
|
42,903
|
20,948
|
||||||
Long-term deferred tax asset
|
17,820
|
27,396
|
||||||
Other assets
|
1,372
|
1,081
|
||||||
Total assets
|
$
|
153,588
|
$
|
104,749
|
||||
Liabilities and Stockholders’ Equity
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$
|
7,643
|
$
|
7,685
|
||||
Accrued expenses and other current liabilities
|
10,744
|
9,495
|
||||||
Convertible note payable
|
—
|
5,000
|
||||||
Current portion of term loan payable
|
5,250
|
2,250
|
||||||
Total current liabilities
|
23,637
|
24,430
|
||||||
Convertible note payable
|
1,000
|
1,000
|
||||||
Long-term portion of term loan payable
|
12,750
|
4,500
|
||||||
Borrowings under revolving credit facility
|
8,000
|
5,250
|
||||||
Other non-current liabilities
|
—
|
311
|
||||||
Total liabilities
|
45,387
|
35,491
|
||||||
Commitments and contingencies (Note 7)
|
||||||||
Stockholders’ equity:
|
||||||||
Series A Preferred stock, $0.001 par value; 11,445,187 shares authorized; none outstanding
|
—
|
—
|
||||||
Series B Preferred stock, $0.001 par value; 500,000 shares authorized; 168,007 and no shares issued and outstanding at December 31, 2015 and 2014, respectively
|
—
|
—
|
||||||
Common stock, $0.001 par value; 55,000,000 shares authorized; 10,626,624 and 8,880,377 shares issued and outstanding at December 31, 2015 and 2014, respectively
|
11
|
9
|
||||||
Additional paid-in capital
|
342,485
|
308,190
|
||||||
Accumulated deficit
|
(234,295
|
)
|
(238,941
|
)
|
||||
Total stockholders’ equity
|
108,201
|
69,258
|
||||||
Total liabilities and stockholders’ equity
|
$
|
153,588
|
$
|
104,749
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Revenues:
|
||||||||||||
Lead fees
|
$
|
120,678
|
$
|
100,744
|
$
|
74,732
|
||||||
Advertising
|
10,534
|
4,171
|
3,289
|
|||||||||
Other revenues
|
2,014
|
1,363
|
340
|
|||||||||
Total revenues
|
133,226
|
106,278
|
78,361
|
|||||||||
Cost of revenues
|
81,586
|
64,465
|
47,915
|
|||||||||
Gross profit
|
51,640
|
41,813
|
30,446
|
|||||||||
Operating expenses:
|
||||||||||||
Sales and marketing
|
15,956
|
14,404
|
9,612
|
|||||||||
Technology support
|
11,740
|
8,014
|
7,303
|
|||||||||
General and administrative
|
13,189
|
11,538
|
9,554
|
|||||||||
Depreciation and amortization
|
3,106
|
1,858
|
1,450
|
|||||||||
Litigation settlements
|
(108
|
)
|
(143
|
)
|
(316
|
)
|
||||||
Total operating expenses
|
43,883
|
35,671
|
27,603
|
|||||||||
Operating income
|
7,757
|
6,142
|
2,843
|
|||||||||
Interest and other income (expense), net
|
322
|
(694
|
)
|
237
|
||||||||
Income tax provision (benefit)
|
3,433
|
2,037
|
(35,064
|
)
|
||||||||
Net income and comprehensive income
|
$
|
4,646
|
$
|
3,411
|
$
|
38,144
|
||||||
Basic earnings per common share
|
$
|
0.47
|
$
|
0.38
|
$
|
4.29
|
||||||
Diluted earnings per common share
|
$
|
0.37
|
$
|
0.32
|
$
|
3.61
|
Common Stock
|
Preferred Stock
|
Additional Paid-In-Capital
|
Accumulated Deficit
|
|||||||||||||||||||||||||
Number of Shares
|
Amount
|
Number of Shares
|
Amount
|
Total
|
||||||||||||||||||||||||
Balance at December 31, 2012
|
8,855,400 | $ | 9 | - | $ | - | $ | 306,252 | $ | (280,496 | ) | $ | 25,765 | |||||||||||||||
Share-based compensation
|
- | - | - | - | 705 | - | 705 | |||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
54,337 | - | - | - | 214 | - | 214 | |||||||||||||||||||||
Net income
|
- | - | - | - | - | 38,144 | 38,144 | |||||||||||||||||||||
Balance at December 31, 2013
|
8,909,737 | 9 | - | - | 307,171 | (242,352 | ) | 64,828 | ||||||||||||||||||||
Share-based compensation
|
- | - | - | - | 1,426 | - | 1,426 | |||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
134,668 | - | - | - | 562 | - | 562 | |||||||||||||||||||||
Issuance of warrants
|
- | - | - | - | 510 | - | 510 | |||||||||||||||||||||
Premium on convertible note
|
- | - | - | - | 300 | - | 300 | |||||||||||||||||||||
Repurchase of common stock
|
(164,028 | ) | - | - | - | (1,779 | ) | - | (1,779 | ) | ||||||||||||||||||
Net income
|
- | - | - | - | - | 3,411 | 3,411 | |||||||||||||||||||||
Balance at December 31, 2014
|
8,880,377 | 9 | - | - | 308,190 | (238,941 | ) | 69,258 | ||||||||||||||||||||
Share-based compensation
|
- | - | - | - | 2,563 | - | 2,563 | |||||||||||||||||||||
Issuance of common stock upon exercise of stock options
|
145,979 | - | - | - | 1,197 | - | 1,197 | |||||||||||||||||||||
Issuance of AutoWeb warrants
|
- | - | - | - | 2,542 | - | 2,542 | |||||||||||||||||||||
Issuance of AutoWeb preferred shares
|
- | - | 168,007 | - | 21,133 | - | 21,133 | |||||||||||||||||||||
Issuance of restricted stock
|
125,000 | - | - | - | - | - | - | |||||||||||||||||||||
Exercise of warrants
|
400,000 | 1 | - | - | 1,860 | - | 1,861 | |||||||||||||||||||||
Conversion of note payable
|
1,075,268 | 1 | - | - | 5,000 | - | 5,001 | |||||||||||||||||||||
Net income
|
- | - | - | - | - | 4,646 | 4,646 | |||||||||||||||||||||
Balance at December 31, 2015
|
10,626,624 | 11 | 168,007 | - | 342,485 | (234,295 | ) | 108,201 |
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
Cash flows from operating activities:
|
||||||||||||
Net income
|
$
|
4,646
|
$
|
3,411
|
$
|
38,144
|
||||||
Adjustments to reconcile net income to net cash provided by operating activities:
|
||||||||||||
Depreciation and amortization
|
4,021
|
2,227
|
1,875
|
|||||||||
Provision for bad debt
|
379
|
354
|
92
|
|||||||||
Provision for customer credits
|
803
|
1,037
|
511
|
|||||||||
Share-based compensation
|
2,557
|
1,421
|
704
|
|||||||||
Gain on long-term strategic investment
|
(636
|
)
|
—
|
(108
|
)
|
|||||||
Change in deferred tax assets
|
2,996
|
1,758
|
(35,495
|
)
|
||||||||
Changes in assets and liabilities:
|
||||||||||||
Accounts receivable
|
(381
|
)
|
(2,590
|
)
|
(4,610
|
)
|
||||||
Prepaid expenses and other current assets
|
(121
|
)
|
(261
|
)
|
6
|
|||||||
Other non-current assets
|
147
|
(625
|
)
|
(246
|
)
|
|||||||
Accounts payable
|
(586
|
)
|
137
|
1,416
|
||||||||
Accrued expenses and other current liabilities
|
(1,352
|
)
|
1,847
|
1,445
|
||||||||
Non-current liabilities
|
(273
|
)
|
(826
|
)
|
598
|
|||||||
Net cash provided by operating activities
|
12,200
|
7,890
|
4,332
|
|||||||||
Cash flows from investing activities:
|
||||||||||||
Purchase of AutoUSA
|
—
|
(10,044
|
)
|
—
|
||||||||
Purchase of Advanced Mobile
|
—
|
—
|
(1,824
|
)
|
||||||||
Purchase of Dealix/Autotegrity
|
(25,011
|
)
|
— | — | ||||||||
Investment in AutoWeb
|
—
|
(880
|
)
|
(2,500
|
)
|
|||||||
Investment in SaleMove
|
—
|
(400
|
)
|
(150
|
)
|
|||||||
Purchase of intangible assets
|
—
|
—
|
(16
|
)
|
||||||||
Investment in GoMoto
|
(375
|
)
|
(100
|
)
|
—
|
|||||||
Change in long-term strategic investment
|
—
|
—
|
108
|
|||||||||
Purchases of property and equipment
|
(2,719
|
)
|
(1,124
|
)
|
(670
|
)
|
||||||
Net cash used in investing activities
|
(28,105
|
)
|
(12,548
|
)
|
(5,052
|
)
|
||||||
Cash flows from financing activities:
|
||||||||||||
Repurchase of common stock
|
—
|
(1,779
|
)
|
—
|
||||||||
Borrowings under credit facility
|
2,750
|
1,000
|
4,250
|
|||||||||
Borrowings under term loan
|
15,000
|
9,000
|
—
|
|||||||||
Payments on term loan borrowings
|
(3,750
|
)
|
(2,250
|
)
|
—
|
|||||||
Net proceeds from stock option exercises
|
1,197
|
567
|
215
|
|||||||||
Proceeds from exercise of warrants
|
1,860
|
—
|
—
|
|||||||||
Proceeds from issuance of preferred shares
|
2,132
|
—
|
—
|
|||||||||
Payment of contingent fee arrangement
|
(38
|
)
|
(63
|
)
|
(111
|
)
|
||||||
Net cash provided by financing activities
|
19,151
|
6,475
|
4,354
|
|||||||||
Net increase in cash and cash equivalents
|
3,246
|
1,817
|
3,634
|
|||||||||
Cash and cash equivalents, beginning of period
|
20,747
|
18,930
|
15,296
|
|||||||||
Cash and cash equivalents, end of period
|
$
|
23,993
|
$
|
20,747
|
$
|
18,930
|
||||||
Supplemental disclosure of cash flow information:
|
||||||||||||
Cash paid for income taxes
|
$
|
552
|
$
|
355
|
$
|
135
|
||||||
Cash paid for interest
|
$
|
884
|
$
|
697
|
$
|
324
|
||||||
Supplemental schedule of non-cash investing and financing activities:
|
||||||||||||
Purchase of AutoWeb
|
$
|
21,543
|
$
|
—
|
$
|
—
|
||||||
Conversion of Cyber Note
|
$
|
5,000 |
$
|
—
|
$
|
—
|
1.
|
Organization and Operations of Autobytel
|
2.
|
Summary of Significant Accounting Policies
|
2015
|
2014
|
2013
|
|||||||
Basic Shares:
|
|||||||||
Weighted average common shares outstanding
|
9,907,066
|
8,998,035
|
8,883,357
|
||||||
Weighted average common shares repurchased
|
—
|
(18,138
|
)
|
—
|
|||||
Basic Shares
|
9,907,066
|
8,979,897
|
8,883,357
|
||||||
Diluted Shares:
|
|||||||||
Basic Shares
|
9,907,066
|
8,979,897
|
8,883,357
|
||||||
Weighted average dilutive securities
|
2,755,258
|
2,232,011
|
1,732,596
|
||||||
Dilutive Shares
|
12,662,324
|
11,211,908
|
10,615,953
|
(in thousands)
|
||||
Series B Preferred Stock
|
$
|
20,989
|
||
Series B Preferred warrants to purchase 148,240 shares of Series B Preferred Stock
|
2,542
|
|||
Cash
|
279
|
|||
Fair value of prior ownership in AutoWeb
|
4,016
|
|||
$
|
27,826
|
(in thousands)
|
||||
Net identifiable assets acquired:
|
||||
Total tangible assets acquired
|
$
|
4,456
|
||
Total liabilities assumed
|
543
|
|||
Net identifiable assets acquired
|
3,913
|
|||
Definite-lived intangible assets acquired
|
17,690
|
|||
Goodwill
|
5,954
|
|||
$
|
27,557
|
Valuation Method
|
Estimated
Fair Value
|
Estimated
Useful Life
(1)
|
|||||||
(in thousands)
|
(years)
|
||||||||
Customer relationships
|
Excess of earnings
(
2
)
|
$
|
7,470
|
4
|
|||||
Trademark/trade names
|
Relief from Royalty
(
3
)
|
2,600
|
6
|
||||||
Developed technology
|
Excess of earnings
(
4
)
|
7,620
|
7
|
||||||
Total purchased intangible assets
|
$
|
17,690
|
(1)
|
Determination of the estimated useful lives of the individual categories of purchased intangible assets was based on the nature of the applicable intangible asset and the expected future cash flows to be derived from such intangible asset. Amortization of intangible assets with definite lives is recognized over the shorter of the respective life of the agreement or the period of time the assets are expected to contribute to future cash flows.
|
|
(2)
|
The excess of earnings method estimates a purchased intangible asset's value based on the present value of the prospective net cash flows (or excess earnings) attributable to it. The value attributed to these intangibles was based on projected net cash inflows from existing contracts or relationships.
|
|
(3)
|
The relief from royalty method is an earnings approach which assesses the royalty savings an entity realizes since it owns the asset and isn’t required to pay a third party a license fee for its use.
|
|
(4)
|
The excess of earnings method estimates a purchased intangible asset's value based on the present value of the prospective net cash flows (or excess earnings) attributable to it. The method takes into account technological and economic obsolescence of the technology.
|
(in thousands)
|
||||
Net identifiable assets acquired:
|
||||
Total tangible assets acquired
|
$
|
9,664
|
||
Total liabilities assumed
|
2,488
|
|||
Net identifiable assets acquired
|
7,176
|
|||
Definite-lived intangible assets acquired
|
7,655
|
|||
Indefinite-lived intangible assets acquired
|
2,200
|
|||
Goodwill
|
7,440
|
|||
$
|
24,471
|
(1)
|
Determination of the estimated useful lives of the individual categories of purchased intangible assets was based on the nature of the applicable intangible asset and the expected future cash flows to be derived from such intangible asset. Amortization of intangible assets with definite lives is recognized over the shorter of the respective life of the agreement or the period of time the assets are expected to contribute to future cash flows.
|
|
(2)
|
The excess of earnings method estimates a purchased intangible asset's value based on the present value of the prospective net cash flows (or excess earnings) attributable to it. The value attributed to these intangibles was based on projected net cash inflows from existing contracts or relationships.
|
|
(3)
|
The relief from royalty method is an earnings approach which assesses the royalty savings an entity realizes since it owns the asset and isn’t required to pay a third party a license fee for its use.
|
|
(4)
|
The cost approach
estimates the cost required to repurchase or reproduce the intangible assets. The method takes into account technological and economic obsolescence of the technology.
|
Twelve Months
Ended
December 31, 2015
|
Twelve Months
Ended
December 31, 2014
|
|||||||
(in thousands)
|
||||||||
Unaudited pro forma consolidated results:
|
||||||||
Revenues
|
$ | 146,649 | $ | 158,564 | ||||
Net income
|
$ | 4,839 | $ | 7,557 |
(in thousands)
|
||||
Cash (including a working capital adjustment of $44)
|
$
|
10,044
|
||
Convertible subordinated promissory note
|
1,300
|
|||
Warrant to purchase $1.0 million of Company common stock
|
510
|
|||
$
|
11,854
|
(in thousands)
|
||||
Net identifiable assets acquired
|
$
|
758
|
||
Long-lived intangible assets acquired
|
3,660
|
|||
Goodwill
|
7,346
|
|||
$
|
11,764
|
Valuation Method
|
Estimated
Fair Value
|
Estimated
Useful Life (1)
|
|||||||
(in thousands)
|
(years)
|
||||||||
Customer relationships
|
Excess of earnings
(
2
)
|
$
|
2,660
|
5
|
|||||
Trademark/trade names
|
Relief from Royalty
(
3
)
|
1,000
|
5
|
||||||
Total purchased intangible assets
|
$
|
3,660
|
(1)
|
Determination of the estimated useful lives of the individual categories of purchased intangible assets was based on the nature of the applicable intangible asset and the expected future cash flows to be derived from such intangible asset. Amortization of intangible assets with definite lives are recognized over the shorter of the respective lives of the agreement or the period of time the assets are expected to contribute to future cash flows.
|
(2)
|
The excess of earnings method estimates a purchased intangible asset's value based on the present value of the prospective net cash flows (or excess earnings) attributable to it. The value attributed to these intangibles was based on projected net cash inflows from existing contracts or relationships.
|
(3)
|
The relief from royalty method is an earnings approach which assesses the royalty savings an entity realizes since it owns the asset and isn’t required to pay a third party a license fee for its use.
|
(in thousands)
|
||||
Cash (including working capital adjustment of $70)
|
$
|
2,570
|
||
Contingent consideration
|
825
|
|||
$
|
3,395
|
(in thousands)
|
||||
Net identifiable assets acquired
|
$
|
90
|
||
Definite-lived intangible assets acquired
|
1,270
|
|||
Goodwill
|
1,925
|
|||
Net assets acquired
|
$
|
3,285
|
Valuation Method
|
Estimated
Fair Value
|
Estimated
Useful Life
(1)
|
|||||||
(in thousands)
|
(years)
|
||||||||
Customer relationships
|
Excess of earnings
(2)
|
$ |
450
|
2
|
|||||
Developed technology
|
Excess of earnings
(2)
|
820
|
5
|
||||||
Total purchased intangible assets
|
$
|
1,270
|
(1)
|
Determination of the estimated useful lives of the individual categories of purchased intangible assets was based on the nature of the applicable intangible asset and the expected future cash flows to be derived from such intangible asset. Amortization of intangible assets with definite lives are recognized over the shorter of the respective lives of the agreement or the period of time the assets are expected to contribute to future cash flows.
|
(2)
|
The excess of earnings method estimates a purchased intangible asset’s value based on the present value of the prospective net cash flows (or excess earnings) attributable to it. The value attributed to these intangibles was based on projected net cash inflows from existing contracts or relationships.
|
Note
|
Note
|
||||||||||
receivable-
|
receivable-
|
||||||||||
Description
|
long-term
|
current
|
Investments
|
||||||||
(in thousands)
|
|||||||||||
Balance at December 31, 2014
|
$
|
—
|
$
|
150
|
$
|
3,880
|
|||||
Total gains or (losses) (realized or unrealized)
|
—
|
—
|
636
|
||||||||
Purchases
|
375
|
—
|
—
|
||||||||
Sales
|
—
|
—
|
—
|
||||||||
Transfers
|
—
|
(150
|
)
|
(3,836
|
)
|
||||||
Balance at December 31, 2015
|
$
|
375
|
$
|
—
|
$
|
680
|
As of December 31,
|
||||||||
2015
|
2014
|
|||||||
(in thousands)
|
||||||||
Computer software and hardware and capitalized internal use software
|
$
|
15,741
|
$
|
12,990
|
||||
Furniture and equipment
|
1,419
|
1,271
|
||||||
Leasehold improvements
|
1,424
|
957
|
||||||
18,584
|
15,218
|
|||||||
Less—Accumulated depreciation and amortization
|
(14,288
|
)
|
(13,314
|
)
|
||||
Property and Equipment, net
|
$
|
4,296
|
$
|
1,904
|
December 31, 2015
|
December 31, 2014
|
|||||||||||||||||||||||
Intangible Asset
|
Estimated Useful Life
|
Gross
|
Accumulated Amortization
|
Net
|
Gross
|
Accumulated Amortization
|
Net
|
|||||||||||||||||
Trademarks/trade names/licenses/domains
|
3-6 years
|
$
|
11,494
|
$
|
(6,071
|
)
|
$
|
5,423
|
$
|
6,574
|
$
|
(5,594
|
)
|
$
|
980
|
|||||||||
Software and publications
|
3 years
|
1,300
|
(1,300
|
)
|
—
|
1,300
|
(1,300
|
)
|
—
|
|||||||||||||||
Customer relationships
|
2 - 10 years
|
19,563
|
(4,341
|
)
|
15,222
|
5,074
|
(2,696
|
)
|
2,378
|
|||||||||||||||
Employment/non-compete agreements
|
1-5 years
|
1,510
|
(849
|
)
|
661
|
700
|
(500
|
)
|
200
|
|||||||||||||||
Developed technology
|
5-7 years
|
8,955
|
(746
|
)
|
8,209
|
820
|
(205
|
)
|
615
|
|||||||||||||||
$
|
42,822
|
$
|
(13,307
|
)
|
$
|
29,515
|
$
|
14,468
|
$
|
(10,295
|
)
|
$
|
4,173
|
Year
|
Amortization Expense
|
|||
(in thousands)
|
||||
2016
|
$
|
5,647
|
||
2017
|
5,427
|
|||
2018
|
5,052
|
|||
2019
|
3,655
|
|||
2020
|
2,224
|
|||
$
|
22,005
|
(in thousands)
|
||||
Goodwill as of December 31, 2014
|
$
|
20,948
|
||
Acquisition of Dealix/Autotegrity
|
11,215
|
|||
Acquisition of AutoWeb
|
10,740
|
|||
Goodwill as December 31, 2015
|
$
|
42,903
|
As of December 31,
|
||||||||
2015
|
2014
|
|||||||
(in thousands)
|
||||||||
Compensation and related costs and professional fees
|
$
|
3,981
|
$
|
5,149
|
||||
Other accrued expenses
|
5,715
|
3,383
|
||||||
Amounts due to customers
|
486
|
267
|
||||||
Other current liabilities
|
562
|
696
|
||||||
Total accrued expenses and other current liabilities
|
$
|
10,744
|
$
|
9,495
|
7.
|
Commitments and Contingencies
|
Years Ending December 31,
|
||||
2016
|
$
|
1,810
|
||
2017
|
1,551
|
|||
2018
|
713
|
|||
2019
|
401
|
|||
2020
|
320
|
|||
Thereafter | 728 | |||
$
|
5,523
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
(in thousands)
|
||||||||||||
Share-based compensation expense:
|
||||||||||||
Cost of revenues
|
$
|
150
|
$
|
69
|
$
|
50
|
||||||
Sales and marketing
|
713
|
544
|
153
|
|||||||||
Technology support
|
518
|
251
|
206
|
|||||||||
General and administrative
|
1,185
|
562
|
297
|
|||||||||
Share-based compensation expense
|
2,566
|
1,426
|
706
|
|||||||||
Amount capitalized to internal use software
|
9
|
5
|
2
|
|||||||||
Total share-based compensation expense
|
$
|
2,557
|
$
|
1,421
|
$
|
704
|
Years Ended December 31,
|
|||||||||
2015
|
2014
|
2013
|
|||||||
Expected volatility
|
56%
|
56%
|
65%
|
||||||
Expected risk-free interest rate
|
1.3%
|
1.4%
|
0.8%
|
||||||
Expected life (years)
|
4.4
|
4.3
|
4.3
|
Number of
Options
|
Weighted Average
Exercise Price
per Share
|
Weighted
Average
Remaining
Contractual
Term
|
Aggregate
Intrinsic
Value
|
|||||||||||||
(years)
|
(thousands)
|
|||||||||||||||
Outstanding at December 31, 2014
|
1,971,269
|
$
|
7.73
|
4.5
|
||||||||||||
Granted
|
606,750
|
12.45
|
||||||||||||||
Exercised
|
(145,979
|
)
|
8.19
|
|||||||||||||
Forfeited or expired
|
(80,099
|
)
|
14.43
|
|||||||||||||
Outstanding at December 31, 2015
|
2,351,941
|
$
|
8.70
|
4.2
|
$
|
32,616
|
||||||||||
Vested and expected to vest at December 31, 2015
|
2,262,633
|
$
|
8.60
|
4.2
|
$
|
31,597
|
||||||||||
Exercisable at December 31, 2015
|
1,539,979
|
$
|
6.65
|
3.3
|
$
|
24,510
|
Number of Shares
|
||||
Stock options outstanding
|
2,351,941
|
|||
Authorized for future grants under stock-based incentive plans
|
315,273
|
|||
Reserved for conversion of preferred shares issued in relation to AutoWeb
|
1,680,070
|
|||
Reserved for exercise of warrants
|
1,552,330
|
|||
Reserved for conversion of promissory notes
|
61,200
|
|||
Total
|
5,960,814
|
2015
|
2014
|
2013
|
||||||||
(in thousands)
|
||||||||||
Current:
|
||||||||||
Federal
|
$
|
212
|
$
|
129
|
$
|
95
|
||||
State
|
226
|
150
|
113
|
|||||||
438
|
279
|
208
|
||||||||
Deferred:
|
||||||||||
Federal
|
2,997
|
1,714
|
1,353
|
|||||||
State
|
586
|
385
|
902
|
|||||||
3,583
|
2,099
|
2,255
|
||||||||
Valuation allowance release
|
(588
|
)
|
(341
|
)
|
(37,527
|
)
|
||||
Total income tax expense (benefit)
|
$
|
3,433
|
$
|
2,037
|
$
|
(35,064
|
)
|
2015
|
2014
|
2013
|
|||||||
Tax provision at U.S. federal statutory rates
|
34.0
|
%
|
34.0
|
%
|
34.0
|
%
|
|||
State taxes
|
2.3
|
2.6
|
3.5
|
||||||
Federal rate adjustment
|
—
|
—
|
34.6
|
||||||
State rate adjustment
|
—
|
—
|
0.5
|
||||||
Deferred tax asset adjustments
|
6.8
|
6.4
|
5.9
|
||||||
Non-deductible permanent items
|
0.7
|
0.4
|
0.6
|
||||||
Acquisition costs
|
7.0
|
—
|
—
|
||||||
Stock options
|
—
|
—
|
0.4
|
||||||
Other
|
(1.0
|
)
|
0.3
|
0.5
|
|||||
Change in valuation allowance
|
(7.3
|
)
|
(6.3
|
)
|
(1,219.1
|
)
|
|||
Effective income tax rate
|
42.5
|
%
|
37.4
|
%
|
(1,139.1
|
)%
|
2015
|
2014
|
|||||||
(in thousands)
|
||||||||
Deferred tax assets:
|
||||||||
Allowance for doubtful accounts
|
$ | 394 | $ | 284 | ||||
Accrued liabilities
|
1,266 | 1,473 | ||||||
Net operating loss carry-forwards
|
31,325 | 34,473 | ||||||
Fixed assets
|
16 | 83 | ||||||
Intangible assets
|
— | 744 | ||||||
Share-based compensation expense
|
2,422 | 1,566 | ||||||
Other
|
613 | 286 | ||||||
Total gross deferred tax assets
|
36,036 | 38,909 | ||||||
Valuation allowance
|
(5,427 | ) | (6,015 | ) | ||||
30,609 | 32,894 | |||||||
Deferred tax liabilities:
|
||||||||
Intangible assets
|
(9,147 | ) | — | |||||
Total gross deferred tax liabilities
|
(9,147 | ) | — | |||||
Net deferred tax assets
|
$ | 21,462 | $ | 32,894 |
2021
|
$
|
4.6
|
||
2022
|
1.7
|
|||
2023
|
—
|
|||
2024
|
4.1
|
|||
2025
|
7.7
|
|||
2026
|
25.5
|
|||
2027
|
15.5
|
|||
2028
|
5.2
|
|||
2029
|
7.7
|
|||
2030
|
10.6
|
|||
2031
|
1.3
|
|||
2032
|
—
|
|||
2033
|
0.1
|
|||
2034
|
2.5
|
|||
2035
|
1.7
|
|||
$
|
88.2
|
2016
|
$
|
19.6
|
||
2017
|
3.1
|
|||
2028
|
2.6
|
|||
2029
|
5.8
|
|||
2030
|
11.0
|
|||
2034
|
2.1
|
|||
2035
|
1.5
|
|||
California NOLs
|
45.7
|
|||
Other State NOLs
|
5.7
|
|||
Total State NOLs
|
$
|
51.4
|
2015
|
2014
|
|||||||
(in thousands)
|
||||||||
Balance at January 1,
|
$
|
636
|
$
|
636
|
||||
Reductions based on the lapse of the statutes of limitations
|
(109
|
)
|
—
|
|||||
Balance at December 31,
|
$
|
527
|
$
|
636
|
11.
|
Quarterly Financial Data (Unaudited)
|
Quarter Ended
|
||||||||||||||||||||||||||||||||
Dec 31,
2015
|
Sep 30,
2015
|
Jun 30,
2015
|
Mar 31,
2015
|
Dec 31,
2014
|
Sep 30,
2014
|
Jun 30,
2014
|
Mar 31,
2014
|
|||||||||||||||||||||||||
(in thousands, except per-share amounts)
|
||||||||||||||||||||||||||||||||
Total net revenues
|
$
|
36,421
|
$
|
40,175
|
$
|
30,387
|
$
|
26,243
|
$
|
26,041
|
$
|
27,364
|
$
|
25,913
|
$
|
26,959
|
||||||||||||||||
Gross profit
|
$
|
14,474
|
$
|
15,297
|
$
|
11,770
|
$
|
10,098
|
$
|
10,404
|
$
|
11,008
|
$
|
10,316
|
$
|
10,085
|
||||||||||||||||
Net income
|
$
|
1,386
|
$
|
1,615
|
$
|
871
|
$
|
773
|
$
|
1,117
|
$
|
1,124
|
$
|
801
|
$
|
370
|
||||||||||||||||
Basic earnings per share
|
$
|
0.13
|
$
|
0.16
|
$
|
0.09
|
$
|
0.09
|
$
|
0.12
|
$
|
0.12
|
$
|
0.09
|
$
|
0.04
|
||||||||||||||||
Diluted earnings per share
|
$
|
0.10
|
$
|
0.14
|
$
|
0.08
|
$
|
0.07
|
$
|
0.11
|
$
|
0.11
|
$
|
0.08
|
$
|
0.04
|
AUTOBYTEL INC.
|
Years Ended December 31,
|
||||||||||||
2015
|
2014
|
2013
|
||||||||||
(in thousands)
|
||||||||||||
Allowance for bad debts:
|
||||||||||||
Beginning balance
|
$
|
490
|
$
|
294
|
$
|
268
|
||||||
Additions
|
379
|
354
|
92
|
|||||||||
Write-offs
|
(264
|
)
|
(158
|
)
|
(66
|
)
|
||||||
Ending balance
|
$
|
605
|
$
|
490
|
$
|
294
|
||||||
Allowance for customer credits:
|
||||||||||||
Beginning balance
|
$
|
280
|
$
|
111
|
$
|
158
|
||||||
Additions
|
803
|
1,037
|
511
|
|||||||||
Write-offs
|
(644
|
)
|
(868
|
)
|
(558
|
)
|
||||||
Ending balance
|
$
|
439
|
$
|
280
|
$
|
111
|
||||||
Tax valuation allowance:
|
||||||||||||
Beginning balance
|
$
|
6,015
|
$
|
6,356
|
$
|
43,883
|
||||||
Charged (credited) to tax expense
|
(588
|
)
|
(341
|
)
|
(37,527
|
)
|
||||||
Ending balance
|
$
|
5,427
|
$
|
6,015
|
$
|
6,356
|
Number
|
Description
|
2.1 ‡
|
Asset Purchase Agreement dated as of September 30, 2013 by and among Autobytel Inc., a Delaware corporation, Advanced Mobile, LLC, a Delaware limited liability company, and Advanced Mobile Solutions Worldwide, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed with the SEC on October 3, 2013 (SEC File No. 001-34761)
|
2.2 ‡
|
Membership Interest Purchase Agreement dated as of January 13, 2014 by and among Autobytel Inc., a Delaware corporation, AutoNation, Inc., a Delaware corporation, and AutoNationDirect.com, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the SEC on January 17, 2014 (SEC File No. 001-34761) (“
January 2014 Form 8-K
”)
|
2.3‡
|
Stock Purchase Agreement dated as of May 21, 2015 by and among the Company, CDK Global, LLC, a Delaware limited liability company, Dealix Corporation, a California corporation, and Autotegrity, Inc., a Delaware corporation incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the SEC on May 27, 2015 (SEC File No. 001-34761) (“
May 2015 Form 8-K
”)
|
2.4‡
|
Agreement and Plan of Merger dated as of October 1, 2015 by and among Autobytel Inc., a Delaware corporation, New Horizon Acquisition Corp., a Delaware corporation, AutoWeb, Inc., a Delaware corporation, and Jose Vargas, which is incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed with the SEC on October 6, 2015 (SEC File No. 001-34761) (“
October 2015 Form 8-K
”)
|
3.1
|
Fifth Amended and Restated Certificate of Incorporation of Autobytel Inc. (formerly Autobytel.com Inc.) 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 to 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); 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 to the Current Report on Form 8-K filed with the SEC on July 12, 2012; and Fifth Certificate of Amendment to Fifth Amended and Restated Certificate of Incorporation of Autobytel dated July 3, 2013, which is incorporated herein by reference to Exhibit 3.3 to the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2013 filed with the SEC on August 1, 2013 (SEC File No. 001-34761); and Certificate of Designations of Series B Junior Participating Convertible Preferred Stock of Autobytel Inc. dated October 1, 2015, which is incorporated herein by reference to Exhibit 3.1 to the October 2015 Form 8-K
|
3.2
|
Fifth Amended and Restated Bylaws of Autobytel Inc. dated October 1, 2015, which is incorporated herein by reference to Exhibit 3.2 to the October 2015 Form 8-K
|
4.1
|
Form of Common Stock Certificate of Autobytel, which is incorporated herein by reference to Exhibit 4.1 to 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; and 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), as amended by Amendment No. 1 to Tax Benefit Preservation Plan dated as of April 14, 2014, between Autobytel Inc. and Computershare Trust Company, N.A., as rights agent, which is incorporated herein by reference to Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on April 16, 2014 (SEC File No. 001-34761)
|
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 for the quarterly period ended September 30, 2012 filed with the SEC on November 8, 2012 (SEC File No. 001-34761)
|
10.1 ■
|
Autobytel.com Inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.8 to Amendment No. 1 to S-1 Registration Statement, as amended by 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 to the Quarterly Report on Form 10-Q for the quarterly period ended September 30, 1999 filed with the SEC on November 12, 1999 (SEC File No. 000-22239) and Amendment No. 2 to the Autobytel.com Inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(5) to Schedule TO filed with the SEC on December 14, 2001 (SEC File No. 005-58067) (“
Schedule TO
”); and Form of Stock Option Agreement pursuant to Autobytel.com Inc. 1998 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(14) to the Schedule TO
|
10.2 ■
|
Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.30 to Amendment No. 1 to S-1 Registration Statement, as amended by 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 to Form 10-Q for the quarterly period ended September 30, 1999 filed with the SEC on November 12, 1999 (SEC File No. 000-22239); and Amendment No. 2 to the Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(8) to the Schedule TO; Form of Stock Option Agreement pursuant to Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(15) to the Schedule TO; 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) to the Schedule TO; and Form of Outside Director Stock Option Agreement pursuant to the Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on November 3, 2004 (SEC File No. 000-22239) (“
November 2004 Form 8-K
”)
|
10.3 ■
|
Autobytel.com Inc. 1999 Employee and Acquisition Related Stock Option Plan, which is incorporated herein by reference to Exhibit 10.1 to the Registration Statement on Form S-8 filed with the SEC on November 1, 1999 (SEC File No. 333-90045), as amended by 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) to the Schedule TO and 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 to the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009 filed with the SEC on July 24, 2009 (SEC File No. 000-22239) (“
Second Quarter 2009 Form 10-Q
”); and 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) to the Schedule TO
|
10.4 ■
|
Form of Employee Stock Option Agreement pursuant to the Autobytel.com Inc. 1998 Stock Option Plan, the Autobytel.com Inc. 1999 Employee and Acquisition Related Stock Option Plan and the Autobytel.com Inc. 1999 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.2 to 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
”)
|
10.5 ■
|
Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit 99.1 to the Registration Statement on Form S-8 filed with the SEC on June 15, 2000 (SEC File No. 333-39396), as amended by Amendment No. 1 to the Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(12) to the Schedule TO, Amendment No. 2 to the Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit 10.46 to 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) and 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 to the Second Quarter 2009 Form 10-Q; and Form of Stock Option Agreement pursuant to Autobytel.com Inc. 2000 Stock Option Plan, which is incorporated herein by reference to Exhibit (d)(17) to the Schedule TO
|
10.6 ■
|
Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 4.7 to the Post-Effective Amendment to Registration Statement on Form S-8 filed with the SEC on July 31, 2003 (SEC File No. 333-67692), as amended by 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 to the Second Quarter 2009 Form 10-Q; and Form of Restricted Stock Award Agreement under the Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 10.1 to the October 2008 Form 8-K (SEC File No. 000-22239)
|
10.7 ■
|
Form of Employee Stock Option Agreement under the Autobytel Inc. Amended and Restated 2001 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 10.8 to the Annual Report on Form 10-K for the Year Ended December 31, 2014, filed with the SEC on February 26, 2015 (SEC File No. 001-34761)
|
10.8 ■
|
Autobytel Inc. 2004 Restricted Stock and Option Plan, which is incorporated herein by reference to Exhibit 4.8 to the Registration Statement on Form S-8 filed with the SEC on June 28, 2004 (SEC File No. 333-116930) (“
2004 Form S-8
”), as amended by 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 to the Second Quarter 2009 Form 10-Q; 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 to the 2004 Form S-8; 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 to the November 2004 Form 8-K; 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 to 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); 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 to 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
”); and Form of Letter Agreement (amending certain stock option agreements with Outside Directors), which is incorporated herein by reference to Exhibit 10.2 to the September 2005 Form 8-K
|
10.9 ■
|
Autobytel Inc. 2006 Inducement Stock Option Plan, which is incorporated herein by reference to Exhibit 4.9 to the Registration Statement on Form S-8 filed with the SEC on June 16, 2006 (SEC File No. 333-135076) (“
2006 Form S-8
”), as amended by 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 to the Second Quarter 2009 Form 10-Q; and Form of Employee Inducement Stock Option Agreement, which is incorporated herein by reference to Exhibit 4.10 to the 2006 Form S-8
|
10.10 ■
|
Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on June 25, 2010 (SEC File No. 001-34761); 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 to 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
”); Form of 2013 Performance-Based Stock Option Award Agreement pursuant to the Autobytel Inc. 2010 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.79 to the Annual Report on Form 10-K for the Year Ended December 31, 2012 filed with the SEC on February 28, 2013 (SEC File No. 001-34761) (“
2012 Form 10-K
”); 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 to the 2011 Form 10-K; 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 to the 2011 Form 10-K; and 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 to the 2011 Form 10-K
|
10.11 ■
|
Autobytel Inc. 2014 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on June 23, 2014 (SEC File No. 001-34761); and Form of Stock Option Award Agreement pursuant to the Autobytel Inc. 2014 Equity Incentive Plan, which is incorporated herein by reference to Exhibit 10.3 to the Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2014 filed with the SEC on July 31, 2014 (SEC File No. 001-34761)
|
10.12 ■
|
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 to the Annual Report on Form 10-K for the Year Ended December 31, 2008 filed with the SEC on March 13, 2009 (SEC File No. 000-22239) (“
2008 Form 10-K
”)
|
10.13 ■
|
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 to the October 2008 Form 8-K, as amended by Amendment No. 1 to Amended and Restated Severance Agreement dated December 14, 2012 between Autobytel and Glenn E. Fuller, which is incorporated herein by reference to Exhibit 10.73 to the 2012 Form 10-K
|
10.14 ■
|
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 to the 2008 Form 10-K
|
10.15 ■
|
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 to the Current Report on Form 8-K filed with the SEC on March 9, 2009 (SEC File No. 000-22239), as amended by Amendment No. 1 to Amended and Restated Severance Agreement dated October 19, 2012 between Autobytel and Curtis E. DeWalt, which is incorporated herein by reference to Exhibit 10.72 to the 2012 Form 10-K
|
10.16 ■
|
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 to the 2008 Form 10-K
|
10.17 ■
|
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 to the 2008 Form 10-K, as amended by Amendment No. 1 to Amended and Restated Severance Agreement dated October 16, 2012 between Autobytel and Wesley Ozima, which is incorporated herein by reference to Exhibit 10.74 to the 2012 Form 10-K
|
10.18 ■
|
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 to the Second Quarter 2009 Form 10-Q
|
10.19 ■
|
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 to the Second Quarter 2009 Form 10-Q
|
10.20 ■
|
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 to the Second Quarter 2009 Form 10-Q
|
10.21■
|
Employee Stock Option Award Agreement dated as of January 21, 2016 between Autobytel Inc. and Jeffrey H. Coats pursuant to the Autobytel Inc. 2014 Equity Incentive Plan incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC January 27, 2016 (SEC File No. 001-34761) (“
January 2016 Form 8-K
”)
|
10.22■
|
Employee Stock Option Award Agreement dated as of January 21, 2016 between Autobytel Inc. and Jeffrey H. Coats pursuant to the Autobytel Inc. 2014 Equity Incentive Plan incorporated by reference to Exhibits 10.3 to the January 2016 Form 8-K
|
10.23■
|
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)
|
10.24 ■*
|
Form of Indemnification Agreement between Autobytel and its directors and officers
|
10.25 ■
|
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 to the 2011 Form 10-K
|
10.26 ■
|
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 to the 2011 Form 10-K, as amended by Amendment No. 1 to Amended and Restated Severance Benefits Agreement dated November 14, 2012 between Autobytel and Kimberly Boren, which is incorporated herein by reference to Exhibit 10.70 to the 2012 Form 10-K
|
10.27 ■
|
Severance Benefits Agreement dated as of September 17, 2010 between Autobytel and William Ferriolo, which is incorporated herein by reference to Exhibit 10.76 to the 2011 Form 10-K, as amended by Amendment No. 1 to Severance Benefits Agreement dated November 30, 2012 between Autobytel and William Ferriolo, which is incorporated herein by reference to Exhibit 10.77 to the 2012 Form 10-K
|
10.28 ■
|
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 to the 2011 Form 10-K
|
10.29 ■
|
Severance Agreement dated as of October 1, 2009 between Autobytel and John Steerman, which is incorporated herein by reference to Exhibit 10.78 to the 2011 Form 10-K, as amended by Amendment No. 1 to Severance Agreement dated September 19, 2012 between Autobytel and John D. Steerman, which is incorporated herein by reference to Exhibit 10.75 to the 2012 Form 10-K and Amendment No. 2 to Severance Agreement dated November 7, 2012 between Autobytel and John D. Steerman, which is incorporated herein by reference to Exhibit 10.76 to the 2012 Form 10-K
|
10.30
|
Consulting Services Agreement entered into as of April 1, 2015 by and between Autobytel Inc. and Curtis E. DeWalt which is incorporated herein by reference to the form agreement filed as Exhibit 10.9 to the Quarterly Report on Form 10-Q for the period ended June 30, 2015 filed with the SEC on August 6, 2015 (“
Second Quarter 2015 Form 10-Q
”)
|
10.31
|
Lease Agreement dated April 6, 1997 between The Provider Fund, The Colton Company and Autobytel (“
Irvine Lease
”), as amended by Amendment No. 12 to Irvine Lease dated February 6, 2009, Amendment No. 13 to Irvine Lease dated March 5, 2009, and Amendment No. 14 to Irvine Lease dated November 29, 2010, which are incorporated herein by reference to Exhibit 10.79 to the 2011 Form 10-K, Amendment No. 15 to Irvine Lease dated October 31, 2012, which is incorporated herein by reference to Exhibit 10.69 to the 2012 Form 10-K.
|
10.32*
|
Irvine Lease, as amended by Amendment No. 16 between GFE MacArthur Investments, LLC as successor-in-interest to The Provider Fund Partners and Autobytel Inc. dated August 7, 2015.
|
10.33
|
Loan Agreement dated as of February 26, 2013 by and between Autobytel Inc., a Delaware corporation, and Union Bank, N.A., a national banking association, as amended by First Amendment to Loan Agreement dated as of September 10, 2013, Second Amendment to Loan Agreement dated as of January 13, 2014, Security Agreement dated January 13, 2014, Commercial Promissory Note dated January 13, 2014 ($9,000,000 Term Loan), and Commercial Promissory Note dated January 13, 2014 ($8,000,000 Revolving Loan), which are incorporated herein by reference to Exhibit 10.4 to the January 2014 Form 8-K and amended by Third Amendment to Loan Agreement dated as of May 20, 2015, incorporated by reference to Exhibit 10.1 to the May 2015 Form 8-K, Commercial Promissory Note dated May 20, 2015 ($15,000,000 Term Loan), and Commercial Promissory Note dated May 20, 2015 ($8,000,000 Revolving Loan) which are incorporated herein by reference to Exhibit 10.2, 10.3 and 10.4 to the May 2015 Form 8-K
|
10.34
|
Convertible Subordinated Promissory Note dated as of January 13, 2014 (Principal Amount $1,000,000.00) issued by Autobytel Inc., a Delaware corporation, to AutoNationDirect.com, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 10.1 to the January 2014 Form 8-K
|
10.35
|
Warrant to Purchase 69,930 Shares of Autobytel Inc. Common Stock dated as of January 13, 2014 issued by Autobytel Inc., a Delaware corporation, to AutoNationDirect.com, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 10.2 to the January 2014 Form 8-K
|
10.36
|
Shareholder Registration Rights Agreement dated as of January 13, 2014 by and between Autobytel Inc., a Delaware corporation, and AutoNationDirect.com, Inc., a Delaware corporation, which is incorporated herein by reference to Exhibit 10.3 to the January 2014 Form 8-K
|
10.37 ■
|
Severance Benefits Agreement dated October 1, 2013 between Autobytel Inc. and Bret Dunlap, which is incorporated herein by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q for the period ended September 30, 2013 filed with the SEC on November 7, 2013 (“
Third Quarter 2013 Form 10-Q
”)
|
10.38 ■
|
Inducement Stock Option Award Agreement dated September 30, 2013 between Autobytel Inc. and Bret Dunlap, which is incorporated herein by reference to Exhibit 10.3 to the Third Quarter 2013 Form 10-Q
|
10.39 ■
|
Inducement Stock Option Award Agreement dated September 30, 2013 between Autobytel Inc. and Bret Dunlap, which is incorporated herein by reference to Exhibit 10.4 to the Third Quarter 2013 Form 10-Q
|
10.40 ■
|
Inducement Stock Option Award Agreement dated September 30, 2013 between Autobytel Inc. and Bret Dunlap, which is incorporated herein by reference to Exhibit 10.5 to the Third Quarter 2013 Form 10-Q
|
10.41 ■
|
Inducement Stock Option Award Agreement dated January 13, 2014 between Autobytel Inc. and Phillip W. DuPree, which is incorporated by reference to Exhibit 10.87 to the Annual Report on Form 10-K for the Year Ended December 31, 2013 filed with the SEC on February 20, 2014 (SEC File No. 001-34761) (“
2013 Form 10-K
”)
|
10.42 ■
|
Severance Benefits Agreement dated January 13, 2014 between Autobytel Inc. and Phillip DuPree, which is incorporated herein by reference to Exhibit 10.89 to the 2013 Form 10-K
|
10.43 ■
|
Second Amended and Restated Employment Agreement dated as of April 3, 2014 between Autobytel Inc. and Jeffrey H. Coats, which is incorporated herein by reference to Exhibit 99.1 to the Current Report on Form 8-K filed with the SEC on April 8, 2014 (SEC File No. 001-34761) as amended by Amendment No. 1 to the Amended and Restated Employment Agreement dated January 21, 2016 by and between Autobytel Inc. and Jeffrey H. Coats which is incorporated herein by reference to Exhibit 10.1 to the January 2016 Form 8-K
|
10.44
|
Amended and Restated Stockholder Agreement dated as of October 1, 2015 by and among Autobytel Inc., a Delaware corporation, Auto Holdings Ltd., a British Virgin Islands business company, Manatee Ventures Inc., a British Virgin Islands business company, Galeb3 Inc., a Florida corporation, Matias de Tezanos, and Jose Vargas, and the other parties set forth on the signature pages thereto, which is incorporated by reference to Exhibit 10.2 to the October 2015 Form 8-K
|
10.45
|
Form of Warrant to Purchase Series B Junior Participating Convertible Preferred Stock dated as of October 1, 2015 issued by Autobytel Inc., a Delaware corporation, to the persons listed on Schedule A thereto, which is incorporated herein by reference to Exhibit 10.1 to the October 2015 Form 8-K
|
10.46■
|
Restricted Stock Award Agreement dated as of April 23, 2015 between Autobytel Inc. and William Ferriolo pursuant to the Autobytel Inc. 2014 Equity Incentive Plan incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed with the SEC on April 29, 2015 disclosing an April 23, 2015 event (SEC File No. 001-34761) (“
April 2015 Form 8-K
”)
|
10.47 ■
|
Restricted Stock Award Agreement dated as of April 23, 2015 between Autobytel Inc. and William Ferriolo pursuant to the Autobytel Inc. 2014 Equity Incentive Plan incorporated by reference to Exhibit 10.4 to the April 2015 Form 8-K
|
10.48 ■
|
Amended and Restated Letter Agreement dated as of April 23, 2015 between Autobytel Inc. and William Ferriolo incorporated by reference to Exhibit 10.5 to the April 2015 Form 8-K and as amended by Amendment No. 1 to Amended and Restated Letter Agreement dated January 22, 2016 by and between Autobytel Inc. and William Ferriolo incorporated by reference to Exhibit 10.4 to the January 2016 Form 8-K
|
10.49■*
|
Severance Benefits Agreement dated May 1, 2013 between Autobytel Inc. and John Skocilic.
|
10.50■
|
Severance Benefits Agreement dated May 21, 2015 between Autobytel Inc. and John Vicidomino incorporated by reference to Exhibit 10.11 to the Second Quarter 2015 Form 10-Q
|
10.51■
|
Employment Offer Letter dated June 18, 2015 between Autobytel Inc. and H. Donald Perkins, Jr. incorporated by reference to Exhibit 10.12 to the Second Quarter 2015 Form 10-Q
|
10.52■
|
Severance Benefits Agreement dated June 18, 2015 between Autobytel Inc. and H. Donald Perkins, Jr. incorporated by reference to Exhibit 10.13 to the Second Quarter 2015 Form 10-Q
|
10.53■
|
Inducement Stock Option Award Agreement dated June 18, 2015 between Autobytel Inc. and H. Donald Perkins, Jr. incorporated by reference to Exhibit 10.14 to the Second Quarter 2015 Form 10-Q
|
10.54■*
|
Employment Offer Letter dated February 23, 2016 between Autobytel Inc. and Jose Vargas
|
21.1*
|
Subsidiaries of Autobytel Inc.
|
23.1*
|
Consent of Independent Registered Public Accounting Firm, Moss Adams LLP
|
24.1*
|
Power of Attorney (included in the signature page hereto)
|
31.1*
|
Chief Executive Officer Section 302 Certification of Periodic Report dated March 10, 2016
|
31.2*
|
Chief Financial Officer Section 302 Certification of Periodic Report dated March 10 , 2016
|
32.1*
|
Chief Executive Officer and Chief Financial Officer Section 906 Certification of Periodic Report dated March 10, 2016
|
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.
|
■
|
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.
|
††
|
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.
|
Autobytel Inc.
|
||
By: | _______________________________ | |
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
|
||
Indemnitee
|
||
_______________________________________
Signature
Print Name:
______________________________
Address:
Autobytel Inc.
18872 MacArthur Blvd., Suite 200
Irvine, CA 92612
|
||
A.
|
Tenant is the current Tenant under 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, Amendment No. 14 to Lease dated November 29, 2010, and Amendment No. 15 dated October 31, 2012 (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.
|
By way of notice provided by Tenant on October 15, 2013 and confirmed in writing by Landlord on October 21, 2013, Tenant and Landlord agreed to an extension of the Lease pursuant to a Notice of Exercise of Option for a period of three (3) years commencing August 1, 2014 and ending July 31, 2017 at the following terms:
|
·
|
August 1, 2014 to July 31, 2015 - $41,849.60 per month
|
·
|
August 1, 2015 to July 31, 2016 - $43,157.40 per month
|
·
|
August 1, 2016 to July 31, 2017 - $44,465.20 per month
|
|
The terms outlined above for the Current Leased Premises shall remain in full force and effect.
|
C.
|
Landlord and Tenant mutually agree to further amend the Lease on the terms and conditions set forth here in this Amendment No. 16.
|
Period
|
Base Rent PSF
|
Monthly
|
October 1, 2015 - July 31, 2016
|
$1.65
|
$21,788.25
|
August 1, 2016 - July 31, 2017
|
$1.70
|
$22,448.50
|
LANDLORD:
GFE MacArthur Investments, LLC,
a Delaware limited liability company
By:
/s/ Ping Chau Cao
Print Name:
Ping Chau Cao
Title:
Manager
Date:
9-1-2015
|
TENANT:
Autobytel, Inc.,
a Delaware corporation
By:
/s/ Glenn E. Fuller
Print Name:
Glenn E. Fuller
Title:
Executive Vice President, Chief Legal and Administrative Officer and Secretary
Date:
8-18-2015
By:
/
s/ Kimberly S. Boren
Print Name:
Kimberly S. Boren
Title:
Senior Vice President, Chief Financial Officer
Date:
8-24-2015
|
AUTOBYTEL INC. | ||
By: |
/s/ Glenn E. Fuller
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
|
|
EMPLOYEE | ||
/s/ John Skocilic
John Skocilic
|
Dated:_____________, 201_ | /s/ John Skocilic | |||
John Skocilic | ||||
Dated:_____________, 201_ | Autobytel Inc. | |||
By: | ____________________________________ | |||
[Officer’s Name]
[Title]
|
18872 MacArthur Blvd., Suite 200
Irvine, CA 92612-1400
Phone: (949) 225-4500
www.autobytel.com
|
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative
Officer and Secretary
DIRECT LINE: 949.862.1392
FACSIMILE:
949.797.0484
glennf@autobytel.com
|
AUTOBYTEL INC.
By:
/s/ Glenn E. Fuller
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
|
|
|
a.
|
“Clients” means any person or entity for whom Company performs services, to whom Company sells or licenses products, or from whom Company, Employee, or both obtain information.
|
|
b.
|
“Confidential Information” means proprietary techniques and confidential information that Company has or will maintain, develop, compile, or own, or that Company receives under conditions of confidentiality. Confidential Information includes not only information disclosed by Company (including its employees, agents, and independent contractors) or its Clients to Employee in the course of employment, but also information (including Inventions) developed or learned by Employee during the course of employment with Company. Confidential Information is to be broadly defined and includes (i) all information that has or could have commercial value or other utility in the business in which Company or Clients are engaged or in which they contemplate engaging, and (ii) all information that, if disclosed without authorization, could be detrimental to the interest of Company or Clients, whether or not such information is identified as Confidential Information by Company or Clients or any other information protected by the California Uniform Trade Secrets Act, Cal. Civ. Code § 3426 et seq or by the equivalent laws of the state in which Employee’s primary work location is located (“
Employee’s Primary Work Location State
”). By way of example and without limitation, Confidential Information includes all information on teaching techniques, processes, formulas, trade secrets, Inventions, discoveries, improvements, research or development test results, specifications, data, know-how, formats, marketing plans, business plans, strategies, forecasts, unpublished financial information, budgets, projections, pricing, and customer and/or supplier identities, characteristics, preferences and agreements.
|
|
c.
|
“Inventions” means discoveries, developments, designs, ideas, improvements, inventions, formulas, processes, techniques, graphics, computer software, know-how, and data (whether or not patentable or registerable under copyright or similar statutes) made, conceived, reduced to practice, or learned by Employee (either alone or jointly with others) during the period of employment, that (i) are related to or useful in the business of Company, (ii) result from any work performed by Employee for Company, or (iii) result from the use of premises owned, leased, or otherwise used or acquired by Company.
|
|
2.
|
Protection of Company’s Confidential Information.
|
|
a.
|
At all times during and after Employee’s employment, Employee will hold in trust, keep confidential, not make use of, and not disclose or reveal to any third party any Confidential Information, except in the course of Employee’s employment with Company and for the benefit of Company. Employee will not cause the transmission, removal, or transport of Confidential Information or Inventions from Company’s principal place of business at 18872 MacArthur Boulevard, Second Floor, Irvine, California, Employee’s Primary Work Location, or such other place of business specified by Company, without the prior written approval of Company’s Chief Legal Officer (“
CLO
”).
|
|
b.
|
Employee acknowledges that the unauthorized use or disclosure of Confidential Information may be highly prejudicial to the interests of Company or its Clients, an invasion of privacy, or an improper disclosure of trade secrets.
|
|
c.
|
If Employee desires to publish the results of Employee’s work for Company through literature or speeches, Employee must submit such literature or speeches to the CLO at least sixty (60) days before dissemination of such information. Employee will not publish, disclose, or otherwise disseminate such information without the prior written approval of the CLO. Whenever the approval, designation, specification, or other act of the CLO is required under this Agreement, the CLO may, by written designation, authorize an agent of Company to perform such act.
|
|
3.
|
Non-Solicitation.
|
|
a.
|
Employee acknowledges and agrees that: (i) the Company is engaged in business throughout the United States ("
Restricted Area
") and online and, therefore, the Company competes with businesses that could be located anywhere within the Restricted Area; (ii) Company has required Employee to make the covenants set forth herein as a condition to Employee's initial employment or continuing employment of Employee with Company; and (iii) the provisions of this Agreement are reasonable and necessary to protect and preserve Company's legitimate business interests in, without limitation, its Confidential Information, customer relationships, trade name and the goodwill associated therewith.
|
|
b.
|
Employee agrees that during Employee’s employment Employee shall not directly or indirectly engage in or prepare to engage in, or be employed by, any business that is engaging in or preparing to engage in any aspect of Company's business anywhere in the Restricted Area. The prohibitions contained in this Section shall extend to (i) activities undertaken by Employee directly on Employee's own behalf, and to (ii) activities undertaken by Employee indirectly through any individual, corporation or entity which undertakes such prohibited activities with Employee's assistance and in or with respect to which Employee is an owner, officer, director, trustee, shareholder, creditor, employee, agent, partner or consultant or participates in some other capacity.
|
|
c.
|
Except with the prior written consent of the CLO, Employee will not, directly or indirectly, during the period of employment with Company and for a period of one (1) year thereafter, contact, solicit, contract with, or accept business from, for or on behalf of a same, similar or competitive business as the Company, any entity or individual which (i) was or has been a customer of the Company within two (2) years prior to the cessation of Employee’s employment with the Company, or (ii) was or is a prospective customer of the Company with which Employee had business-related communications within two years prior to the cessation of Employee’s employment with the Company.
|
|
d.
|
For a period of one (1) year immediately after termination of Employee’s employment with Company, Employee will not solicit any employee of the Company to leave Company’s employ or induce a consultant to sever the consultant’s relationship with Company
|
|
4.
|
Prior Knowledge and Prior Relationships.
|
|
a.
|
Except as disclosed in Exhibit A, Employee has no knowledge of any of the Confidential Information other than information Employee has learned from Company.
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|
b.
|
Employee has disclosed in Exhibit A a complete list of all Inventions that are proprietary to Employee and that Employee wants to exclude from the application of this Agreement. Company will receive and hold all such disclosures in confidence.
|
|
c.
|
Employee has no agreements, relationships, or commitments to any other person or entity that conflict with or would prevent Employee from performing any of Employee’s obligations to Company under this Agreement.
|
|
d.
|
Employee will not disclose to Company, use, or induce Company to use any proprietary information or trade secrets of others. Employee represents and warrants that, prior to commencing employment with Company, Employee has returned all property and confidential information belonging to all others, including former employers.
|
|
a.
|
Employee will promptly disclose in writing to Company all Inventions.
|
|
b.
|
All Inventions belong to and are the sole property of Company and will be Inventions of Company subject to this Agreement. Employee assigns and agrees to assign to Company all right, title, and interest in the United States and all other countries of the world that Employee may have or may acquire in and to all Inventions. Employee shall sign and deliver to Company (during and after employment) any other documents that Company considers desirable to provide evidence of (i) the assignment of all rights of Employee, if any, in any Inventions and (ii) Company’s ownership of such Inventions.
|
|
c.
|
To the extent that any of the Inventions is capable of protection by copyright:
|
|
i.
|
if the Invention falls within the scope of subsection (ii) of the definition of “work made for hire” in Section 101 of the U.S. Copyright Act, Employee acknowledges that it is work made for hire, or
|
|
ii.
|
to the extent that the Invention may not be a work made for hire, Employee hereby assigns and agrees to assign to Company all rights in the Invention in the United States and all other countries of the world.
|
|
d.
|
Any provision in this Agreement requiring Employee to assign rights to an invention does not apply to any Invention that qualifies under California Labor Code § 2870, which is reprinted in its entirety in Exhibit B unless the laws of the Employee’s Primary Work Location State allow for such assignment of rights, in which case the applicable law of the Employee’s Primary Work Location State shall govern. Execution of this Agreement constitutes Employee’s acknowledgement of receipt of notification of this paragraph, including Exhibit B, and the limitations on Employee’s assignment of Inventions.
|
|
e.
|
Employee agrees to execute any documents and provide such other assistance at any time as reasonably required by Company in connection with the registration, assignment, application, prosecution, obtaining, securing, or prosecuting of copyright, trademark, patent or other protection for any Invention, or other perfection of Company=s ownership of the Inventions and proceedings related thereto, all at Company’s expense but without consideration to Employee in excess of Employee’s salary or wages. If Company requires any assistance after termination of Employee’s employment, Employee will be compensated for time actually spent in providing that assistance at an hourly rate equivalent to Employee’s salary or wages during the last period of employment with Company.
|
|
f.
|
If Company is unable to secure Employee’s signature on any document necessary to apply for, prosecute, obtain, or enforce any patent, copyright, or other right or protection relating to any Invention, whether due to Employee’s mental or physical incapacity or any other cause, Employee hereby irrevocably designates and appoints Company and each of its duly authorized officers and agents as Employee’s agent and attorney-in-fact, to act for and in Employee’s behalf to execute and file any such document and to do all other lawfully permitted acts to further the prosecution, issuance, and enforcement of patents, copyrights, or other rights or protections, with the same force and effect as if executed and delivered by Employee.
|
|
a.
|
If Employee’s employment with Company is terminated for any reason, Employee shall promptly and without request (i) inform Company of and deliver to Company all documents and data pertaining to Employee’s employment and the Confidential Information and Inventions, whether prepared by Employee or otherwise coming into Employee’s possession or control; and (ii) sign the Termination Certificate in Exhibit C. Employee shall not retain any written or other tangible material containing any information concerning or disclosing any Confidential Information or Inventions.
|
|
b.
|
If Employee’s employment with Company is terminated for any reason, Employee will protect the value of the Confidential Information and Inventions and will prevent their misappropriation or disclosure. Employee will not disclose or use any Confidential Information or Inventions for Employee’s benefit or the benefit of any third party, or to the detriment of Company or its Clients.
|
|
c.
|
Employee recognizes that the unauthorized taking of Company’s trade secrets may be a crime under California Penal Code § 499c, punishable by imprisonment for a time not exceeding one (1) year, by a fine not exceeding Five Thousand Dollars ($5,000.00), or both. Employee further recognizes that such unauthorized taking of Company’s trade secrets could also result in civil liability under the California Uniform Trade Secrets Act (Civil Code §§ 3426-3426.11), and that willful misappropriation may result in an award against Employee for triple the amount of Company’s damages and Company’s attorney fees in collecting such damages. The laws of the Employee’s Primary Work Location State may provide for similar penalties.
|
|
a.
|
Because Employee’s breach or threatened breach of this Agreement will or is likely to cause Company irreparable harm for which money damages would be inadequate to compensate Company, the Company will be entitled to file a lawsuit seeking injunction relief and other equitable remedies to enforce this Agreement without the necessity of posting a bond, in addition to damages and other available remedies.
|
|
b.
|
Employee acknowledges and agrees that the protections set forth in this Agreement are a material condition to employment with and compensation by Company.
|
Company:
|
Autobytel Inc.
18872 MacArthur Boulevard, Suite 200
Irvine, California 92612-1400
Telephone: (949) 225-4500
Facsimile: (949) 862-1323
Attention: Chief Legal Officer
|
Employee:
|
Jose Vargas
[Personal Residence Address Redacted]
|
|
Company:
AUTOBYTEL INC.
|
|
By: |
/s/ Glenn E. Fuller
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
|
|
Employee:
/s/ Jose Vargas
Jose Vargas
|
AUTOBYTEL INC. | ||
By:
|
/s/ Glenn E. Fuller
Glenn E. Fuller
Executive Vice President, Chief Legal and Administrative Officer and Secretary
|
|
Employee:
/s/ Jose Vargas
Jose Vargas
|
Subsidiary Name
|
Jurisdiction of Incorporation
|
Auto-By-Tel Acceptance Corporation
|
Delaware
|
Auto-By-Tel Insurance Services, Inc.
|
Delaware
|
Autobytel Dealer Services, Inc.
|
Delaware
|
Autotegrity, Inc.
|
Delaware
|
AutoWeb, Inc.
|
Delaware
|
AW GUA USA, Inc.
|
Delaware
|
Car.com, Inc.
|
Delaware
|
Dealix Corporation
|
California
|
|
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/ 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/ Kimberly Boren
|
|
Kimberly Boren,
|
|
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
|
|
March 10, 2016
|
/s/ Kimberly Boren
|
|
Kimberly Boren
|
|
Senior Vice President and
|
|
Chief Financial Officer
|
|
March 10, 2016
|