SEC Connect





 







	

Exhibit 10.49










 


 


	


	
 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










 



 






February
14, 2014


 


 


Taren
Peng


[Personal
Residence Address Redacted]


 


Re:
Offer of Employment


 


 


Dear
Taren:


 


This
letter confirms the terms and conditions upon which Autobytel Inc.,
a Delaware corporation (“Company”) is offering employment
to you. Note that this offer of employment and your employment by
the Company is contingent upon various conditions and requirements
that must be completed prior to commencement of employment, which
conditions and requirements are set forth below.


 


1.           Employment.


 


(a)           Effective
as of the date you commence employment with the Company
(“Commencement
Date”), which date is anticipated to be March 10,
2014, the Company will employ you as VP, Website and Mobile
Development. In such capacity, you will report to the
Company’s SVP, Technology or such other person as may be
designated by the Company from time to time.


 


(b)           Your
employment is at will and not for a specified term and may be
terminated by the Company or you at any time, with or without cause
or good reason and with or without prior, advance notice. This
“at-will” employment status will remain in effect
throughout the term of your employment by the Company and cannot be
modified except by a written amendment to this offer letter that is
executed by both parties (which in the case of the Company, must be
executed by the Company’s Chief Legal Officer) and that
expressly negates the “at-will” employment
status.


 


(c)           Upon
termination of your employment by either party, whether with or
without cause or good reason, you will be entitled to receive only
that portion of your compensation, benefits, reimbursable expenses
and other payments and benefits required by applicable law or by
the Company’s compensation or benefit plans, policies or
agreements in which you participate and pursuant to which you are
entitled to receive the compensation or benefits thereunder under
the circumstances of and at the time of such termination (subject
to and payable in accordance with the terms and conditions of such
plans, policies or agreements). You agree to assist and cooperate
(including, but not limited to, providing information to the
Company and/or testifying in a proceeding) in the investigation and
handling of any internal investigation, legislative matter, or
actual or threatened court action, arbitration, administrative
proceeding, or other claim involving any matter that arose during
the period of your employment.  You shall be reimbursed for
reasonable expenses actually incurred in the course of rendering
such assistance and cooperation.  Your agreement to assist and
cooperate shall not affect in any way the content of information or
testimony provided by you.


 

 


 




 

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2.           Compensation,
Benefits and Expenses.


 


(a)   
    As compensation for the services to be rendered
by you pursuant to this agreement, the Company hereby agrees to pay
you at a Semi-monthly Rate equal to Eight Thousand Three Hundred
Thirty-three Dollars and Thirty-four Cents ($8,333.34). The
Semi-monthly Rate shall be paid in accordance with the normal
payroll practices of the Company.


 


(b)   
    You shall be entitled to participate in annual
incentive compensation plans, if any, that may be adopted by the
Company from time to time and that are afforded generally to
persons employed by the Company at your position level (subject to
the terms and conditions of any such annual incentive compensation
plans). Should such an annual incentive compensation plan be
adopted for any annual period, your target annual incentive
compensation opportunity will be as established by the Company for
each annual period, which may be up to 25% of your annualized rate
(i.e., 24 X Semi-monthly Rate) based on achievement of objectives
specified by the Company each annual incentive compensation period
(which may include Company-wide performance objectives, divisional
or department performance objectives and/or individual performance
objectives, allocated between and among such performance objectives
as the Company may determine). Specific annual incentive
compensation plan details, target incentive compensation
opportunity and objectives for each annual compensation plan period
will be established each year. Awards under annual incentive plans
may be prorated for a variety of factors, including time employed
by the Company during the year, adjustments in base compensation or
target award percentage changes during the year, and unpaid leaves.
You understand that the Company’s annual incentive
compensation plans, their structure and components, specific target
incentive compensation opportunities and objectives, the
achievement of objectives and the determination of actual awards
and payouts, if any, thereunder are subject to the sole discretion
of the Company’s Board of Directors, or a committee
thereof.


 


(c)   
    Upon commencement of your employment with the
Company, the Company hereby agrees to pay you a sign-on bonus in
the amount of Fifteen Thousand Dollars ($15,000) to be paid in the
payroll cycle following your employment commencement
date.







(d)   
    Subject to approval by the Company’s Board
of Directors or a committee thereof, it is anticipated that upon
commencement of employment you will be granted options to acquire
shares of the Company’s common stock. The number of shares,
exercise price, vesting, exercise, termination and other terms and
conditions of these options shall be governed by and subject to the
terms and conditions of the applicable stock option plan and stock
option award agreement. The granting and exercise of such options
are also subject to compliance with applicable federal and state
securities laws.


 


(e)   
    You shall be entitled to participate in such
ordinary and customary benefits plans afforded generally to persons
employed by the Company at your level (subject to the terms and
conditions of such benefit plans, your making of any required
employee contributions required for your participation in such
benefits, your ability to qualify for and satisfy the requirements
of such benefits plans).


 


(f)   
    You are solely responsible for the payment of
any tax liability that may result from any compensation, payments
or benefits that you receive from the Company. The Company shall
have the right to deduct or withhold from the compensation due to
you hereunder any and all sums required by applicable federal,
state, local or other laws, rules or regulations, including,
without limitation federal and state income taxes, social security
or FICA taxes, and state unemployment taxes, now applicable or that
may be enacted and become applicable during your employment by the
Company.


 




3.           
Pre-Hire Conditions
and Requirements. You
have previously submitted an Application for Employment and a
Consent to Conduct a Background Check. This offer of employment and
your employment by the Company is contingent upon various
conditions and requirements for new hires that must be completed
prior to commencement of employment. These conditions and
requirements include, among other things, the
following:



 




(i)

 Successful
completion of the Company’s background check.






 




(ii)

 Your
execution and delivery of this offer letter together with the
Company’s Employee












Confidentiality
Agreement and Mutual Agreement to Arbitrate, the forms of which
accompany this offer letter and which are hereby incorporated
herein by reference. Please sign this offer letter and these other
documents and return the signed original documents to
me.


 


 




 

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(iii)

Your execution and
delivery of your acknowledgment and agreement to the
Company’s






 


Employee
Handbook and the various policies included therein, Securities
Trading Policy, Code of Conduct and Ethics. Upon your acceptance of
this offer letter, you will be provided instructions how to access
online, sign and return these documents.


 




(iv)

Your compliance
with all applicable federal and state laws, rules, regulation and
orders,






 


including
(1) your execution and delivery of an I-9 Employment Eligibility
Verification together with complying verification documents; and
(2) your execution and delivery of a W-4 Employee’s
Withholding Allowance Certificate. Upon your acceptance of this
offer letter, you will be provided instructions how to access
online, sign and return these documents.


 


The
documents referenced in Sections 3(ii), (iii) and (iv) above are
referred to herein as the “Standard Employee
Documents.”


 




4.           
Prior
Employment Requirements or Obligations. The Company requires
that you comply with all terms and conditions of any employment or
other agreements or legal obligations or requirements you may have
with or owe to your current or former employers. In particular, the
Company requires that you comply with the terms and conditions of
any confidentiality or non-disclosure agreements, policies or other
obligations You may owe your former employers, and Employee shall
not disclose to the Company or provide the Company with copies of
any confidential or proprietary information or trade secrets of any
former employer. The Company expects that you will comply with any
notification requirements relating to the termination of your
employment with your current employer and will adjust the
anticipated Commencement Date accordingly to accommodate any
required notice period.


 


5.           Amendments
and Waivers. This agreement may be amended, modified,
superseded, or cancelled, and the terms and conditions hereof may
be waived, only by a written instrument signed by the parties
hereto or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any
right, power, or privilege hereunder will operate as a waiver
thereof, nor will any waiver on the part of any party of any right
hereunder, nor any single or partial exercise of any rights
hereunder, preclude any other or further exercise thereof or the
exercise of any other right hereunder.


 


6.           Notices.
Any notice required or permitted under this agreement will be
considered to be effective in the case of (i) certified mail, when
sent postage prepaid and addressed to the party for whom it is
intended at its address of record, three (3) days after deposit in
the mail; (ii) by courier or messenger service, upon receipt by
recipient as indicated on the courier's receipt; or (iii) upon
receipt of an Electronic Transmission by the party that is the
intended recipient of the Electronic Transmission. The record
addresses, facsimile numbers of record, and electronic mail
addresses of record for you are set forth on the signature page to
this agreement and for the Company as set forth in the letterhead
above and may be changed from time to time by notice from the
changing party to the other party pursuant to the provisions of
this Section 6. For purposes of this Section 6, "Electronic Transmission” means a
communication (i) delivered by facsimile, telecommunication or
electronic mail when directed to the facsimile number of record or
electronic mail address of record, respectively, which the intended
recipient has provided to the other party for sending notices
pursuant to this Agreement and (ii) that creates a record of
delivery and receipt that is capable of retention, retrieval, and
review, and that may thereafter be rendered into clearly legible
tangible form.




 


7.           Choice
of Law. This agreement, its construction and the
determination of any rights, duties or remedies of the parties
arising out of or relating to this agreement will be governed by,
enforced under and construed in accordance with the laws of the
State of California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws of such
state.


 


8.           Severability.
Each term, covenant, condition, or provision of this agreement will
be viewed as separate and distinct, and in the event that any such
term, covenant, condition or provision will be deemed to be invalid
or unenforceable, the arbitrator or court finding such invalidity
or unenforceability will modify or reform this agreement to give as
much effect as possible to the terms and provisions of this
agreement. Any term or provision which cannot be so modified or
reformed will be deleted and the remaining terms and provisions
will continue in full force and effect.


 


 



 

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9.    
     Interpretation.
Every provision of this agreement is the result of full
negotiations between the parties, both of whom have either been
represented by counsel throughout or otherwise been given an
opportunity to seek the aid of counsel. No provision of this
agreement shall be construed in favor of or against any of the
parties hereto by reason of the extent to which any such party or
its counsel participated in the drafting thereof. Captions and
headings of sections contained in this agreement are for
convenience only and shall not control the meaning, effect, or
construction of this agreement. Time periods used in this Agreement
shall mean calendar periods unless otherwise expressly
indicated.


 


10.       
Entire
Agreement. This Agreement, together with the Standard
Employee Documents, is intended to be the final, complete and
exclusive agreement between the parties relating to the employment
of you by the Company and all prior or contemporaneous
understandings, representations and statements, oral or written,
are merged herein. No modification, waiver, amendment, discharge or
change of this agreement shall be valid unless the same is in
writing and signed by the party against which the enforcement
thereof is or may be sought.


 


11.        
Counterparts;
Facsimile or PDF Signature. This agreement may be executed
in counterparts, each of which will be deemed an original hereof
and all of which together will constitute one and the same
instrument. This agreement maybe executed by facsimile or PDF
signature by either party and such signature shall be deemed
binding for all purposes hereof, without delivery of an original
signature being thereafter required.


 


This
offer shall expire seven (7) calendar days from the date of this
offer letter. Should you wish to accept this offer and its terms
and conditions, please confirm your understanding of, agreement to,
and acceptance of the foregoing by signing and returning to the
undersigned the duplicate copy of this offer letter enclosed
herewith.


 


Autobytel Inc., a
Delaware corporation


 


 


 


 


By:
/s/ Glenn E.
Fuller                                    




   
        Glenn E. Fuller


   
        EVP, Chief Legal and
Administrative


   
        Officer and
Secretary


 


Accepted
and Agreed


as of
the date


first
written above:


 


 


 /s/
Taren
Peng              




Taren
Peng


[Personal
Residence Address Redacted]

 

 




 

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Autobytel Inc.


Human
Resources Department


18872
MacArthur Blvd, Suite 200


Irvine,
CA 92612-1400


Voice:
(949) 225-4572






 

 

 

 
January
31, 2017

 







	
 TO:



	
 Taren
Peng


	
 

	
 


	
 FROM:

	
 Glenn
Fuller – EVP, Chief Legal and Administrative Officer and
Secretary


	
 

	
 


	
 RE:



	
 Promotion







 








 


It is a
pleasure to inform you of your promotion. Following is a summary of
your promotion.








	
 New
Position:

	
SVP,
Technology


	
 New
Semi-monthly

 Rate:    



	
 

$9,375.01 ($225,000
Approximate Annually)


	
 Effective
Date: 


	
January 1,
2017


	
 Annual
Incentive

	
 


	
 Compensation:


	
You shall be
eligible to participate in annual incentive compensation plans, if
any, that may be adopted by the Company from time to time and that
are afforded generally to persons employed by the Company at your
employment level and position, geographic location and applicable
department or operations within the Company (subject to the terms
and conditions of any such annual incentive compensation plans).
Should such an annual incentive compensation plan be adopted for
any annual period, your target annual incentive compensation
opportunity will be as established by the Company for each annual
period, which may be up to 50% of your annualized rate
(i.e., 24 X Semi-monthly Rate) based on achievement of objectives
specified by the Company each annual incentive compensation period
(which may include Company-wide performance objectives; divisional,
department or operations performance objectives and/or individual
performance objectives, allocated between and among such
performance objectives as the Company may determine) and subject to
adjustment by the Company based on the Company’s evaluation
and review of your overall individual job performance in the sole
discretion of the Company. Specific annual incentive compensation
plan details, target incentive compensation opportunity and
objectives for each annual compensation plan period will be
established each year. Awards under annual incentive plans may be
prorated by the Company in its discretion for a variety of factors,
including time employed by the Company during the year, adjustments
in base compensation or target award percentage changes during the
year, and unpaid time off. You understand that the Company’s
annual incentive compensation plans, their structure and
components, specific target incentive compensation opportunities
and objectives, the achievement of objectives and the determination
of actual awards and payouts, if any, thereunder are subject to the
sole discretion of the Company. Awards, if any, under any annual
incentive compensation plan shall only be earned by you, an payable
to you, if you remain actively employed by the Company through the
date on which award payouts are made by the Company under the
applicable annual incentive compensation plan. You will not earn
any such award if your employment ends for any reason prior to that
date.







 




Your
promotion is conditioned upon your acceptance of the foregoing
modifications to the terms and conditions of your employment with
Autobytel Inc. If you accept these modifications to the terms of
your employment, please acknowledge your acceptance in the space
provided below.


 



 

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 Please
feel free to call if you have any questions.

 




Autobytel Inc.


 


	
By:

	
 




	
 







Glenn
Fuller


EVP,
Chief Legal and Administrative Officer and Secretary


 


 


Accepted
and Agreed:


 


 



/s/ Taren
Peng           




Taren
Peng


 


 

 




 

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