EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into, at
Irvine, California, as of the 1st day of April, 2002, by and between AUTOBYTEL
INC., a corporation duly organized under the laws of the State of Delaware (the
"Company"), with offices at 00000 XxxXxxxxx Xxxxxxxxx. Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx, 00000-0000, and XXXXX XXXX (hereinafter referred to as the
"Executive"), who resides at 000 Xxxxxx Xxxxxx, Xxxxxx xxx Xxx, Xxxxxxxxxx
00000.
RECITALS
WHEREAS: The Company currently employs and desires to continue to employ
the Executive as Executive Vice President, General Counsel, and Secretary of the
Company.
WHEREAS: The Executive is currently employed and desires to continue to
be so employed by the Company, subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with reference to the above recitals, the parties hereby
agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
The Company hereby employs the Executive as Executive Vice President,
General Counsel, and Secretary of the Company and the Executive hereby accepts
such employment by the Company for a period of two (2) years (the "Term")
commencing from April 1, 2002 (the "Commencement Date") and expiring on the
second anniversary of the Commencement Date (the "Termination Date"), which term
shall automatically renew for one year periods unless either party notifies the
other of its election not to renew at least one-hundred twenty (120) days prior
to the Termination Date or any applicable anniversary of the Termination Date.
Notwithstanding the above, in the event of a Change of Control of the Company
prior to the Termination Date or any extension thereof and while the Executive
remains employed by the Company, the Term shall automatically extend for a
period of two (2) years commencing from the date of the Change of Control. For
purposes of this Agreement "Change of Control" means the occurrence of any of
the following: (i) the consummation of the sale, lease, transfer, conveyance or
other disposition (other than by way of merger or consolidation but not
including any public offering) in one or a series of related transactions of all
or substantially all of the assets of the Company taken as a whole to any person
(a "Person") or group of Persons acting together (a "Group") (other than any of
the Company's wholly-owned subsidiaries or any Company employee pension or
benefits plan), (ii) the adoption of a plan relating to the liquidation or
dissolution of the Company, (iii) the consummation of any transactions
(including any stock or other purchase, sale, acquisition, disposition, merger,
consolidation or reorganization, but not including any public offering) the
result of which is that any Person or Group (other than any of the Company's
wholly-owned subsidiaries or any Company employee pension or benefits plan),
becomes the beneficial owners of more than 40 percent of the aggregate voting
power of all classes of stock of the Company having the right to elect directors
under ordinary circumstances; or (iv) the first day on which a majority of the
members of the board of directors of the Company (the "Board") are not
individuals who were nominated for election or elected to the Board with the
approval of two-thirds of the members of the Board just prior to the time of
such nomination or election.
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ARTICLE 2
DUTIES AND OBLIGATIONS
2.1 During the Term of this Agreement, the Executive shall: (i) devote
his full business time, attention and energies to the business of the Company;
(ii) shall use his best efforts to promote the interests of the Company; (iii)
shall perform all functions and services as the Executive Vice President,
General Counsel, and Secretary of the Company, including general management and
supervision over the legal operations of the business and employees of the
Company; (iv) shall act in accordance with the policies and directives of the
Company; and (v) shall report directly to the Chief Executive Officer and
President of the Company.
2.2 The Executive covenants and agrees that, while actually employed by
the Company, he shall not engage in any other business duties or pursuits
whatsoever, or directly or indirectly render any services of a business or
commercial nature to any other Person or organization, including, but not
limited to, providing services to any business that is in competition with or
similar in nature to the Company, whether for compensation or otherwise, without
the prior written consent of the Chief Executive Officer. However, the
expenditure of reasonable amounts of time for educational, charitable, or
professional activities shall not be deemed a breach of this Agreement, if those
activities do not materially interfere with the services required under this
Agreement, and shall not require the prior written consent of the Chief
Executive Officer. Notwithstanding anything herein contained to the contrary,
this Agreement shall not be construed to prohibit the Executive from making
passive personal investments or conducting personal business, financial or legal
affairs or other personal matters if those activities do not materially
interfere with the services required hereunder. In addition to the foregoing,
notwithstanding anything contained herein to the contrary, this Agreement shall
not be construed to prohibit the Executive from serving as a director or board
member of any other corporation, company, or other business entity, subject to
the approval of the Chief Executive Officer.
ARTICLE 3
COMPENSATION
3.1 As compensation for the services to be rendered by the Executive
pursuant to this Agreement, the Company hereby agrees to pay the Executive a
base salary equal to at least Two Hundred Sixty Five Thousand Dollars
($265,000.00) per year during the Term of this Agreement, which rate shall be
reviewed by the Board at least annually and may be increased (but not reduced)
by the Board and Chief Executive Officer in such amounts as the Board deems
appropriate. The base salary shall be paid in substantially equal bimonthly
installments, in accordance with the normal payroll practices of the Company.
3.2 The Company shall provide the Executive with the opportunity to earn
an annual bonus for each fiscal year of the Company, occurring in whole or in
part during the Term. The annual bonus payable to the Executive shall be in such
amount and based on such criteria for the award as may be established by the
Board from time to time. The Executive shall participate in all other short term
and long term bonus or incentive plans or arrangements in which other senior
executives of the Company are eligible to participate from time to time. Any
bonus shall be paid as promptly as practicable following the end of the
preceding fiscal year. The provisions of this Section 3.2 shall be subject to
the provisions of Section 3.4.
3.3 The Company shall have the right to deduct or withhold from the
compensation due to the Executive hereunder any and all sums required for
federal income and employee social security taxes and all state or local income
taxes now applicable or that may be enacted and become applicable during the
Term.
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3.4 The Company may provide for shareholder approval of any performance
based compensation provided herein and may provide for the compensation
committee to establish any applicable performance goals and determine whether
such performance goals have been met.
3.5 The Company and the Executive agree that the terms and conditions
set forth on Schedule I hereto are hereby deemed incorporated by reference in
and made a part of any stock option agreements between the Company and the
Executive and shall govern any stock options to purchase shares of the Company's
common stock held by the Executive (the "Options") whether during the Term or
thereafter.
ARTICLE 4
EMPLOYEE BENEFITS
4.1 The Company agrees that the Executive shall be entitled to all
ordinary and customary perquisites afforded to executive employees of the
Company, at the Company's sole expense (except to the extent employee
contribution may be required under the Company's benefit plans as they may now
or hereafter exist), which shall in no event be less than the benefits afforded
to the Executive on the date hereof and the other executive employees of the
Company as of the date hereof or from time to time, but in any event shall
include any qualified or non-qualified pension, profit sharing and savings
plans, any death benefit and disability benefit plans, life insurance coverages,
any medical, dental, health and welfare plans or insurance coverages and any
stock purchase programs that are approved by the Board on terms and conditions
at least as favorable as provided to the Executive on the date hereof and other
senior executives of the Company as of the date hereof or from time to time.
4.2 The Executive shall be entitled to four (4) weeks of paid vacation
for each year of his employment hereunder, which, to the extent unused in any
given year, may be carried over in accordance with the policies of the Company
then in effect. Notwithstanding anything to the contrary, however, the Executive
shall not be entitled to carry over any unused vacation for a period exceeding
two (2) years.
ARTICLE 5
BUSINESS EXPENSES
5.1 The Company shall pay or reimburse the Executive for all reasonable
and authorized business expenses incurred by the Executive during the Term; such
payment or reimbursement shall not be unreasonably withheld so long as said
business expenses have been incurred for and promote the business of the Company
and are normally and customarily incurred by employees in comparable positions
at other comparable businesses in the same or similar market. Notwithstanding
the above, the Company shall not pay or reimburse the Executive for the costs of
any membership fees or dues for private clubs, civic organizations, and similar
organizations or entities, unless such organizations and the fees and costs
associated therewith have first been approved in writing by the Chief Executive
Officer.
5.2 The Company shall reimburse the Executive for expenses incurred with
business-related travel. For business-related flights over four hours, Executive
shall be reimbursed for Business Class travel expenses.
5.3 As a condition to reimbursement under this Article 5, the Executive
shall furnish to the Company adequate records and other documentary evidence
required by federal and state statutes and
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regulations for the substantiation of each expenditure. The Executive
acknowledges and agrees that failure to furnish the required documentation may
result in the Company denying all or part of the expense for which reimbursement
is sought.
ARTICLE 6
TERMINATION OF EMPLOYMENT
6.1 TERMINATION FOR CAUSE. The Company may, during the Term, without
notice to the Executive, terminate this Agreement and discharge the Executive
for Cause, whereupon the respective rights and obligations of the parties
hereunder shall terminate; provided, however, that the Company shall immediately
pay the Executive any amount due and owing pursuant to Articles 3, 4, and 5,
prorated to the date of termination. As used herein, the term "for Cause" shall
refer to the termination of the Executive's employment as a result of any one or
more of the following: (i) any conviction of, or pleading of nolo contendre by,
the Executive for any crime or felony; (ii) any wilfull misconduct of the
Executive which has a materially injurious effect on the business or reputation
of the Company; (iii) the gross dishonesty of the Executive which has a
materially injurious effect on the business or reputation of the Company; or
(iv) a material failure to consistently discharge his duties under this
Agreement which failure continues for thirty (30) days following written notice
from the Company detailing the area or areas of such failure other than such
failure resulting from his Disability as defined below. For purposes of this
Section 6.1, no act or failure to act, on the part of the Executive, shall be
considered "willful" if it is done, or omitted to be done, by the Executive in
good faith or with reasonable belief that his action or omission was in the best
interest of the Company. The Executive shall have the opportunity to cure any
such acts or omissions (other than item (i) above) within thirty (30) days of
the Executive's receipt of a notice from the Company finding that, in the good
faith opinion of the Company, the Executive is guilty of acts or omissions
constituting "Cause".
6.2 TERMINATION WITHOUT CAUSE. Anything in this Agreement to the
contrary notwithstanding, the Company shall have the right, at any time in its
sole and subjective discretion, to terminate this Agreement without Cause upon
not less than thirty (30) days prior written notice to the Executive. The term
"termination without Cause" shall mean the termination of the Executive's
employment for any reason other than those expressly set forth in Section 6.1,
or no reason at all, and shall also mean the Executive's decision to terminate
this Agreement by reason of any act, decision or omission by the Company or the
Board that: (A) materially modifies, reduces, changes, or restricts the
Executive's salary, bonus opportunities, options or other compensation benefits
or perquisites, or the Executive's authority, functions, services, duties,
rights, and privileges as, or commensurate with the Executive's position as,
Executive Vice President, General Counsel, and Secretary of the Company as
described in Section 2.1 hereof; (B) relocates the Executive without his consent
from the Company's offices located at 00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx,
Xxxxxxxxxx, 00000-0000 to any other location in excess of fifty (50) miles
beyond the geographic limits of Irvine, California; (C) deprives the Executive
of his titles and positions of Executive Vice President, General Counsel, and
Secretary of the Company; or (D) involves or results in any failure by the
Company to comply with any provision of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive (each a "Good Reason"). In the event the Company or the Executive
shall exercise the termination right granted pursuant to this Section 6.2, the
Company shall, within thirty (30) days of notice of termination to or from the
Executive (as the case may be), pay to the Executive in a single lump-sum
payment the base salary that would have been received by the Executive if he had
remained employed by the Company for the remaining balance of the Term but in no
event less than twelve (12) months; provided, however, that for purposes of
calculating the payment pursuant to this sentence, the Executive's base salary
per year shall be the highest rate in effect during the Term as it may be
extended hereunder. The Company also shall (i) continue to provide to the
Executive and his
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beneficiaries, at its sole cost, the insurance coverages referred to in Section
4.1 above, and (ii) pay to the Executive in a single lump-sum payment the
aggregate cost of the benefits (other than insurance coverages) under Section
4.1 hereof, in each case to the extent he would have received such insurance
coverages and benefits had he remained employed by the Company for the remaining
balance of the Term but in no event less than twelve (12) months.
6.3 TERMINATION FOR DEATH OR DISABILITY. The Executive's employment
shall terminate automatically upon the Executive's death during the Term. If the
Company determines in good faith that the Disability (as defined below) of the
Executive has occurred during the Term, it shall give written notice to the
Executive of its intention to terminate his employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive, provided that, within the
thirty (30) days after such receipt, the Executive shall not have returned to
full-time performance of his duties.
For purposes of this Agreement, "Disability" shall mean the
inability of the Executive to perform his duties to the Company on account of
physical or mental illness or incapacity for a period of one-hundred twenty
(120) consecutive calendar days, or for a period of one hundred eighty (180)
calendar days, whether or not consecutive, during any three hundred sixty-five
(365) day period.
6.4 TERMINATION WITHOUT GOOD REASON. Anything in this Agreement to the
contrary notwithstanding, the Executive shall have the right, at any time in his
sole and subjective discretion, to terminate this Agreement without Good Reason
upon not less than thirty (30) days prior written notice to the Company. In the
event the Executive voluntarily terminates his employment hereunder other than
for Good Reason, the respective rights and obligations of the parties hereunder
shall terminate; provided, however, that the Company shall immediately pay the
Executive any amount due and owing pursuant to Articles 3, 4, and 5, prorated to
the date of termination.
6.5 TERMINATION PRIOR TO OR FOLLOWING A CHANGE OF CONTROL.
Notwithstanding the foregoing, in the event the employment of the Executive is
terminated during the six (6) month period immediately prior to, or the first
twelve (12) months following a Change of Control either: (i) by the Executive
for Good Reason; or (ii) by the Company other than for Cause, Disability or
death, then the provisions of Section 6.2 hereof shall not apply, and the
Company shall, within thirty (30) days of notice of termination to or by the
Executive, pay to the Executive in a single lump-sum payment the base salary
that would have been received by the Executive if he had remained employed by
the Company for two (2) years (calculated at the highest base salary rate during
the Term) . In addition, the Company shall continue to provide to the Executive
and his beneficiaries, at its sole cost, the insurance coverages referred to in
Section 4.1 above for one (1) year. For purposes of this Section 6.5, "Term"
shall be the period of time of this Agreement as defined by Article 1 hereof,
which includes any extension thereof by reason of a Change of Control prior to
the Termination Date.
6.6 Upon the Executive's termination under this Article 6, the Company's
obligations with respect to any stock option to purchase shares of the Company's
common stock granted to the Executive shall be determined by the terms and
conditions of such option as set forth in the Executive's written option
agreement regarding such option, including the terms and conditions set forth on
Schedule I hereto which Schedule I terms and conditions shall govern such stock
option and survive the termination of this Agreement.
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ARTICLE 7
PARACHUTE TAX INDEMNITY
7.1 GROSS-UP PAYMENT.
(a) If it shall be determined that any amount paid, distributed or
treated as paid or distributed by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement, any stock option agreement between the Executive
and the Company or otherwise, but determined without regard to any additional
payments required under this Article 7) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax, together with any such
interest and penalties, being hereinafter collectively referred to as the
"Excise Tax"), then the Executive shall be entitled to receive an additional
payment (a "Gross-Up Payment") in an amount such that after payment by the
Executive of all federal, state and local taxes (including any interest or
penalties imposed with respect to such taxes), including without limitation, any
income taxes (including any interest or penalties imposed with respect thereto)
and Excise Tax imposed on the Gross-up Payment, the Executive retains an amount
of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments,
provided, however, that in no event will the amount of the Gross-Up Payment
payable pursuant to this Article 7 exceed Two Hundred Fifty Thousand Dollars
($250,000).
(b) The determinations of whether and when a Gross-Up Payment is
required under this Article 7 shall be made by independent tax counsel (the "Tax
Counsel") based on its good faith interpretation of applicable law. The amount
of such Gross-Up Payment and the valuation assumptions to be utilized in
arriving at such determination shall be made by an independent nationally
recognized accounting firm (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Company and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a Payment,
or such earlier time as is requested by the Company. The Tax Counsel and
Accounting Firm shall initially be appointed by the Company after consultation
in good faith with the Executive and subject to the approval of the Executive
(which approval shall not be unreasonably withheld), provided, however, that if
the potential amount of the Gross-Up Payment (but for the limit in Section
7.1(a) above) could exceed Two Hundred Fifty Thousand Dollars ($250,000), the
Executive shall have the opportunity to appoint a new Tax Counsel and Accounting
Firm after consultation in good faith with the Company. If the Tax Counsel and
Accounting Firm selected by the Company determine that the amount of the
Gross-Up Payment is less than Two Hundred Fifty Thousand Dollars ($250,000), but
Executive provides an opinion of a second independent Tax Counsel that the
Gross-Up Payment (but for the limit in Section 7.1(a) above) could be greater
than Two Hundred Fifty Thousand Dollars ($250,000) then Executive shall be
entitled to appoint the Tax Counsel and the Accounting Firm after consultation
in good faith with the Company and subject to the approval of the Company (which
approval shall not be unreasonably withheld). All fees and expenses of any Tax
Counsels and Accounting Firms referred to above shall be borne by the Company.
Any Gross-Up Payment, as determined pursuant to this Article 7, shall be paid by
the Company to the Executive within ten (10) days of the receipt of the
Accounting Firm's determination. Any determinations by the Tax Counsel and
Accounting Firm shall be binding upon the Company and the Executive, provided,
however, if it is later determined that there has been an underpayment of Excise
Tax and that Executive is required to make an additional Excise Tax payment(s)
on any Payment or Gross-Up Payment, the Company shall provide a similar full
gross-up on such additional liability, subject to the overall Two Hundred Fifty
Thousand Dollars ($250,000) limit set forth in Section 7.1(a) above.
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(c) For purposes of any determinations made by any Tax Counsel and
Accounting Firm acting under Section 7.1(b) above:
(i) All Payments and Gross-Up Payments with respect to Executive
shall be deemed to be "parachute Payments" under Section 280G(b)(2) of the Code
and to be "excess parachute payments" under Section 280G(b)(1) of the Code that
are fully subject to the Excise Tax under Section 4999 of the Code, except to
the extent (if any) that such Tax Counsel determines in writing in good faith
that a Payment in whole or in part does not constitute a "parachute payment" or
otherwise is not subject to Excise Tax;
(ii) The value of any non-cash benefits or deferred or delayed
payments or benefits shall be determined in a manner consistent with the
principles of Section 280G of the Code; and
(iii) Executive shall be deemed to pay federal, state and local
income taxes at the actual marginal rate applicable to individuals in the
calendar year in which the Gross-Up Payment is made, net of any applicable
reduction in federal income taxes for any state and local taxes paid on the
amounts in question.
7.2 CLAIMS AND PROCEEDINGS. The Executive shall notify the Company in
writing of any Excise Tax claim by the Internal Revenue Service that, if
successful, would require the payment by the Company of a Gross-Up Payment. Such
notification shall be given as soon as practicable but no later then twenty (20)
business days after the Executive is informed in writing of such claim and shall
apprise the Company of the nature of such claim and the date on which such claim
is to be paid. The Executive shall not pay such claim prior to the expiration of
the 30-day period following the date on which it gives such notice to the
Company (or such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
Excise Tax claim, the Executive shall: (i) give the Company any information
reasonably requested by the Company relating to such claim; (ii) take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company after consultation in good faith with Executive and
subject to approval by Executive (which approval shall not be unreasonably
withheld) under the circumstances set forth in Section 7.1; (iii) cooperate with
the Company in good faith in order to effectively contest such claim; and (iv)
permit the Company to participate in any proceeding relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, from any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expense. Without limitation of the foregoing provisions of
this Article 7, if the Gross-Up Payment payable hereunder (determined on the
basis of the amount being contested), together with any previous Gross-Up
Payment made by the Company to the Executive hereunder (collectively the
"Aggregate Gross-Up Payment"), would not exceed Two Hundred Fifty Thousand
Dollars ($250,000) (determined without regard to the Two Hundred Fifty Thousand
Dollars ($250,000) limit in Section 7.1(a)), the Company shall control the
Excise Tax portion of any proceedings taken in connection with such contest and,
at its sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such Excise Tax claim and may, at its sole option, either direct the Executive
to pay the tax claimed and xxx for a refund or contest the Excise Tax claim in
any permissible manner, and the Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine. If the Company directs the Executive to pay such Excise Tax claim and
xxx for a refund, the Company shall advance the amount of such payment to the
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Executive, on an interest-free basis, and shall indemnify and hold the Executive
harmless, on an after-tax basis, from any Excise Tax or income tax (including
interest and penalties) imposed with respect to such advance or with respect to
any imputed income with respect to such advance; and provided, however, that any
Company-directed extension of the statute of limitations relating to payment of
taxes for the Executive's taxable year with respect to which such contested
Excise Tax amount is claimed to be due shall be effective only if it can be and
is limited to the contested Excise Tax liability. Notwithstanding anything to
the contrary herein, the Executive shall control the settlement or contest, as
the case may be, of all non-Excise Tax issues and of any Excise Tax issues with
respect to which the Aggregate Gross-Up Payment payable hereunder (but for the
limit in Section 7.1(a) above) would exceed Two Hundred Fifty Thousand Dollars
($250,000). The Executive shall be entitled to settle or contest, as the case
may be, any non-Excise Tax issue raised by the Internal Revenue Service or any
other taxing authority, so long as such action does not have a material adverse
effect on an Excise Tax contest being pursued by and under the control of the
Company.
7.3 REFUNDS. If, after the Executive's receipt of an amount advanced by
the Company pursuant to this Article 7 for payment of Excise Taxes, the
Executive files an Excise Tax refund claim and receives any refund with respect
to such claim, the Executive shall (subject to the Company's complying with the
requirements of this Article 7) except as provided below, promptly pay to the
Company the amount of any such refund of Excise Tax (together with any interest
paid or credited thereon, but after any and all taxes applicable thereto), plus
the amount (after any and all taxes applicable thereto) of the refund (if any is
applied for and received) of any income tax paid by Executive with respect to
and as a result of his prior receipt of any previously paid Gross-Up Payment
indemnifying Executive with respect to any such Excise Tax later so refunded. In
the event Executive files for a refund of the Excise Tax and such request would,
if successful, require Executive to refund any amount to the Company pursuant to
this provision, then Executive shall be required to seek a refund of the Income
Tax portion of any corresponding Gross-Up Payment so long as such refund request
would not have a material adverse effect on Executive (which determination shall
be made by independent tax counsel selected by Executive after good faith
consultation with the Company and subject to approval of the Company, which
approval shall not be unreasonably withheld). Notwithstanding the above,
Executive shall have no obligation to pay any portion of any such tax refund(s)
to the Company if and to the extent that the Excise Tax to which such refund
relates was not eligible for a Gross-Up Payment by reason of the Two Hundred
Fifty Thousand Dollars ($250,000) limit in Section 7.1(a) above. For this
purpose, if the total Excise Tax paid with respect to Executive exceeds the
maximum amount eligible for Gross-Up Payment coverage by reason of the Two
Hundred Fifty Thousand Dollars ($250,000) limit in Section 7.1 (a) above, any
subsequent Excise Tax refunds shall first be applied against the portion of any
Excise Tax payments that are not covered by the Gross-Up Payments provided under
this Article 7. If, after the Executive's receipt of an amount advanced by the
Company pursuant to this Article 7, a determination is made that the Executive
shall not be entitled to any refund with respect to such claim and the Company
does not notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty (30) days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
the Gross-Up Payment required to be paid.
ARTICLE 8
NO MITIGATION OR OFFSET; INSURANCE
8.1 NO MITIGATION OR OFFSET. The Executive shall not be required to seek
other employment or to reduce any severance benefit payable to him under Article
6 hereof, and no severance benefit shall be reduced on account of any
compensation received by the Executive from any other employment or source.
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The Company's obligation to pay severance benefits under this Agreement shall
not be reduced by any amount owed by the Executive to the Company.
8.2 INDEMNIFICATION; INSURANCE.
(a) If the Executive is a party or is threatened to be made a party
to any threatened, pending or completed claim, action, suit or proceeding, or
appeal therefrom, whether civil, criminal, administrative, investigative or
otherwise, because he is or was an officer of the Company, or at the express
request of the Company is or was serving, for purposes reasonably understood by
him to be for the Company, as a director, officer, partner, employee, agent or
trustee (or in any other capacity of an association, corporation, general or
limited partnership, joint venture, trust or other entity), the Company shall
indemnify the Executive against any reasonable expenses (including attorneys'
fees and disbursements), and any judgments, fines and amounts paid in settlement
incurred by him in connection with such claim, action, suit, proceeding or
appeal therefrom to the extent such expenses, judgments, fines and amounts paid
in settlement were not advanced by the Company on his behalf pursuant to
subsection (b) below, to the fullest extent permitted under Delaware law. The
Company shall provide Executive with D&O insurance coverage at least as
favorable to Executive as what the Company maintains as of the date hereof or
such greater coverage as the Company may maintain from time to time.
(b) Provided that the Executive shall first have agreed to in
writing to repay such amounts advanced if it is determined by an arbitrator or
court of competent jurisdiction that the Executive was not entitled to
indemnification, upon the written request of the Executive specifying the amount
of a requested advance and the intended use thereof, the Company shall indemnify
Executive for his expenses (including attorneys' fees and disbursements),
judgments, fines and amounts paid in settlement incurred by him in connection
with such claim, action, suit, proceeding or appeal whether civil, criminal,
administrative, investigative or otherwise, in advance of the final disposition
of any such claim, action, suit, proceeding or appeal therefrom to the fullest
extent permitted under Delaware law.
ARTICLE 9
RESTRICTIVE COVENANTS
9.1 COVENANT NOT TO DISCLOSE CONFIDENTIAL INFORMATION. During the Term
and following termination of this Agreement, the Executive agrees that, without
the Company's prior written consent, he will not use or disclose to any person,
firm, association, partnership, entity or corporation, any confidential
information concerning: (i) the business operations or internal structure of the
Company; (ii) the customers of the Company; (iii) the financial condition of the
Company; and (iv) other confidential information pertaining to the Company,
including without limitation, trade secrets, technical data, marketing analyses
and studies, operating procedures, customer and/or inventor lists, or the
existence or nature of any of the Company's agreements (other than this
Agreement and any other option or compensation related agreements involving the
Executive); provided, however, that the Executive shall be entitled to disclose
such information: (i) to the extent the same shall have otherwise become
publicly available (unless made publicly available by the Executive in violation
of this Agreement); (ii) during the course of or in connection with any actual
or potential litigation, arbitration, or other proceeding based upon or in
connection with the subject matter of this Agreement; (iii) as may be necessary
or appropriate to conduct his duties hereunder, provided the Executive is acting
in good faith and in the best interest of the Company; or (iv) as may be
required by law or judicial process.
9
9.2 COVENANT NOT TO COMPETE. The Executive acknowledges that he has
established and will continue to establish favorable relations with the
customers, clients and accounts of the Company and will have access to trade
secrets of the Company. Therefore, in consideration of such relations and to
further protect trade secrets, directly or indirectly, of the Company, the
Executive agrees that during the Term and for a period of one (1) year from the
date of termination of the Executive, the Executive will not, directly or
indirectly, without the express written consent of the Board:
(i) own or have any interest in or act as an officer, director,
partner, principal, employee, agent, representative, consultant or independent
contractor of, or in any way assist in, any business which is engaged, directly
or indirectly, in any business competitive with the Company in those automotive
markets and/or automotive products lines in which the Company competes within
the United States at any time during the Term, or become associated with or
render services to any person, firm, corporation or other entity so engaged
("Competitive Businesses"); provided, however; that the Executive may own
without the express written consent of the Company not more than two (2) percent
of the issued an outstanding securities of any company or enterprise whose
securities are listed on a national securities exchange or actively traded in
the over the counter market;
(ii) solicit clients, customers or accounts of the Company for,
on behalf of or otherwise related to any such Competitive Businesses or any
products related thereto; or
(iii) solicit any person who is or shall be in the employ or
service of the Company to leave such employ or service for employment with the
Executive or an affiliate of the Executive.
Notwithstanding the foregoing, if any court determines that the covenant not to
compete, or any part thereof, is unenforceable because of the duration of such
provision or the geographic area or scope covered thereby, such court shall have
the power to reduce the duration, area or scope of such provision to the extent
necessary to make the provision enforceable and, in its reduced form, such
provision shall then be enforceable and shall be enforced. The Company shall pay
and be solely responsible for any attorney's fees, expenses, costs and court or
arbitration costs incurred by Executive in any matter or dispute between
Executive and the Company which pertains to this Article 9 if the Executive
prevails in the contest in whole or in part.
9.3 SPECIFIC PERFORMANCE.Recognizing that irreparable damage will result
to the Company in the event of the breach or threatened breach of any of the
foregoing covenants and assurances by the Executive contained in Sections 9.1
and 9.2 hereof, and that the Company's remedies at law for any such breach or
threatened breach may be inadequate, the Company and its successors and assigns,
in addition to such other remedies which may be available to them, shall be
entitled to an injunction to be issued by any court of competent jurisdiction
ordering compliance with this Agreement or enjoining and restraining the
Executive, and each and every person, firm or company acting in concert or
participation with him, from the continuation of such breach. The obligations of
the Executive and rights of the Company pursuant to this Article 9 shall survive
the termination of this Agreement. The covenants and obligations of the
Executive set forth in this Article 9 are in addition to and not in lieu of or
exclusive of any other obligations and duties the Executive owes to the Company,
whether expressed or implied in fact or law.
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ARTICLE 10
GENERAL PROVISIONS
10.1 This Agreement is intended to be the final, complete and exclusive
agreement between the parties relating to the employment of the Executive by the
Company with respect to the Term and all prior or contemporaneous
understandings, representations and statements, oral or written, are merged
herein. The terms and conditions of any stock option agreements signed by the
Executive prior to or after the date hereof shall incorporate the terms and
conditions set forth on Schedule I hereto, unless more favorable terms are
approved by the Board or any committee thereof, which Schedule I terms and
conditions and/or such more favorable terms and conditions shall govern such
stock options and shall survive the termination of this Agreement. 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.
10.2 No waiver, by conduct or otherwise, by any party of any term,
provision, or condition of this Agreement, shall be deemed or construed as a
further or continuing waiver of any such term, provision, or condition nor as a
waiver of a similar or dissimilar condition or provision at the same time or at
any prior or subsequent time.
10.3 The rights under this Agreement, or by law or equity, shall be
cumulative and may be exercised at any time and from time to time. No failure by
any party to exercise, and no delay in exercising, any rights shall be construed
or deemed to be a waiver thereof, nor shall any single or partial exercise by
any party preclude any other or future exercise thereof or the exercise of any
other right.
10.4 Except as otherwise provided in this Agreement, any notice,
approval, consent, waiver or other communication required or permitted to be
given or to be served upon any person in connection with this Agreement shall be
in writing. Such notice shall be personally served, sent by telegram, tested
telex, fax or cable, or sent prepaid by either registered or certified mail with
return receipt requested or Federal Express and shall be deemed given (i) if
personally served or by Federal Express, when delivered to the person to whom
such notice is addressed, (ii) if given by telegram, telex, fax or cable, when
sent, or (iii) if given by mail, two (2) business days following deposit in the
United States mail. Any notice given by telegram, telex, fax or cable shall be
confirmed in writing by overnight mail or Federal Express within forty-eight
(48) hours after being sent. Such notices shall be addressed to the party to
whom such notice is to be given at the party's address set forth below or as
such party shall otherwise direct.
If to the Company: Autobytel Inc.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attn: General Counsel
If to the Executive: Xxxxx Xxxx
000 Xxxxxx Xxxxxx,
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
10.5 The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
11
10.6 This Agreement shall be construed and enforced in accordance with
the laws of the State of California, without giving effect to the principles of
conflict of laws thereof, except that the indemnification provisions of Section
8.2 shall be governed by Delaware law without regard to conflict of laws
principles.
10.7 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one
instrument.
10.8 The provisions of this Agreement are agreed to be severable, and if
any provision, or application thereof, is held invalid or unenforceable, then
such holding shall not affect any other provision or application.
10.9 As used herein, and as the circumstances require, the plural term
shall include the singular, the singular shall include the plural, the neuter
term shall include the masculine and feminine genders, and the feminine term
shall include the neuter and the masculine genders.
10.10 Any controversy or claim arising out of, or related to, this
Agreement, or the breach thereof, shall be settled by binding arbitration in the
City of Irvine, California, in accordance with the rules then in effect of the
American Arbitration Association, and the arbitrator's decision shall be binding
and final, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof. Each party hereto shall pay its or their own
expenses incident to the negotiation, preparation and resolution of any
controversy or claim arising out of, or related to, this Agreement, or the
breach thereof, provided, however, the Company shall pay and be solely
responsible for any attorneys' fees and expenses and court or arbitration costs
incurred by the Executive as a result of a claim brought by either the Executive
or the Company alleging that the other party has breached or otherwise failed to
perform this Agreement or any provision hereof to be performed by the other
party if the Executive prevails in the contest in whole or in part.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
AUTOBYTEL INC.
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Chief Executive Officer and President
/s/ Xxxxx Xxxx
---------------------------------------
Xxxxx Xxxx
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SCHEDULE I
(a) Vesting. Unless a more favorable vesting schedule is approved by the
Board, the Compensation Committee or other appropriate committee of the Board,
any Option shall vest based on the continued employment of the Executive, fifty
percent (50%) on the first anniversary of the applicable grant date and fifty
percent (50%) on the second anniversary of the applicable grant date.
(b) Payment Upon Exercise. Payment for the shares subject to any Option
may be tendered in cash or by certified, bank cashier's or teller's check or by
shares of the Company's common stock (valued at fair market value (as determined
by the Company) as of the date of tender) already owned by the Executive, or
some combination of the foregoing or through cashless exercise or such other
form of consideration which has been approved by the Board, including a
promissory note given by the Executive.
(c) Termination for Cause. As of the date of the Executive's termination
for Cause (as defined below), any unvested or unexercised portion of any Option
shall terminate immediately and shall be of no further force or effect. As used
herein, the term "for Cause" shall refer to the termination of the Executive's
employment as a result of any one or more of the following: (i) any conviction
of, or pleading of nolo contendre by, the Executive for any crime or felony;
(ii) any gross wilfull misconduct of the Executive which has a materially
injurious effect on the business or reputation of the Company; (iii) the gross
dishonesty of the Executive which has a materially injurious effect on the
business or reputation of the Company; or (iv) a material failure to
consistently discharge his duties under this Agreement which failure continues
for thirty (30) days following written notice from the Company detailing the
area or areas of such failure other than such failure resulting from his
Disability as defined below. For purposes hereof, no act or failure to act, on
the part of the Executive, shall be considered "willful" if it is done, or
omitted to be done, by the Executive in good faith or with reasonable belief
that his action or omission was in the best interest of the Company. The
Executive shall have the opportunity to cure any such acts or omissions (other
than item (i) above) within thirty (30) days of the Executive's receipt of
notice from the Company finding that, in the good faith opinion of the Company,
the Executive is guilty of acts or omissions constituting "Cause".
(d) Termination Without Cause or for Good Reason. As of the date of the
Executive's termination by the Company without Cause or by the Executive for
Good Reason (as defined below), any unvested portion of any Option shall become
immediately and fully vested and all Options, including any previously vested
but unexercised portions of any Options, shall be exercisable from such
termination of employment until the date that is two (2) years following the
termination date. The term "termination without Cause" shall mean the
termination of the Executive's employment for any reason other than those
expressly set forth in the definition "for Cause" above, or no reason at all,
and shall also mean the Executive's decision to terminate his employment with
the Company by reason of any act, decision or omission by the Company or the
Board that: (A) materially modifies, reduces, changes, or restricts the
Executive's salary, bonus opportunities, options or other compensation benefits
or perquisites, or the Executive's authority, functions, services, duties,
rights, and privileges as, or commensurate with the Executive's position as,
Executive Vice President, General Counsel, and Secretary of the Company; (B)
relocates the Executive without his consent from the Company's offices located
at 00000 XxxXxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx, 00000-0000 to any other
location in excess of fifty (50) miles beyond the geographic limits of Irvine,
California; (C) deprives the Executive of his titles and positions of Executive
Vice President, General Counsel, and Secretary of the Company; or (D) involves
or results in any failure by the Company to comply with any provision of the
Employment Agreement or any Option, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by the Executive (each a
"Good Reason").
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(e) Termination due to Death or Disability. As of the date of the
Executive's termination due to death or Disability (as defined below), any
unvested portion of any Option shall become immediately and fully vested and all
Options, including any previously vested but unexercised portion of any Options,
shall be exercisable from the date of such termination of employment until two
(2) years following the termination date. If the Company determines in good
faith that the Disability of the Executive has occurred, it shall give written
notice to the Executive of its intention to terminate his employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive, provided that,
within the thirty (30) days after such receipt, the Executive shall not have
returned to full-time performance of his duties. For purposes hereof,
"Disability" shall mean the inability of the Executive to perform his duties to
the Company on account of physical or mental illness or incapacity for a period
of one-hundred twenty (120) consecutive calendar days, or for a period of one
hundred eighty (180) calendar days, whether or not consecutive, during any three
hundred sixty-five (365) day period.
(f) Termination Without Good Reason. As of the date of any voluntary
termination of employment with the Company by the Executive other than due to
death or Disability, and other than for Good Reason, any unvested portion of any
Option shall terminate immediately and shall be of no further force or effect.
Any previously vested but unexercised portion of any Option shall remain
exercisable from the date of such termination of employment until the second
anniversary of the termination date.
(g) Termination Prior to or Following a Change of Control. In the event
of a Change of Control (as defined below) while the Executive is employed by the
Company, or the Executive's employment is terminated by the Company without
Cause or by the Executive for Good Reason within six (6) months prior to a
Change of Control, any unvested installment of any Option shall immediately vest
and become exercisable from the date of such Change of Control, or if earlier
the date of termination, until the date that is two (2) years following: (i) the
Change of Control date, or (ii) if earlier the date of termination; provided,
however, that notwithstanding the foregoing, any such Options shall remain
exercisable beyond such dates so long as Executive is an employee of the Company
or any successor thereto or affiliate thereof. For purposes hereof, "Change of
Control" means the occurrence of any of the following: (i) the sale, lease,
transfer, conveyance or other disposition (other than by way of merger or
consolidation but not including any public offering) in one or a series of
related transactions of all or substantially all of the assets of the Company
taken as a whole to any person (a "Person") or group of Persons acting together
(a "Group") (other than any of the Company's wholly-owned subsidiaries or any
Company employee pension or benefits plan), (ii) the adoption of a plan relating
to the liquidation or dissolution of the Company, (iii) the consummation of any
transactions (including any stock or other purchase, sale, acquisition,
disposition, merger, consolidation or reorganization, but not including any
public offering) the result of which is that any Person or Group (other than any
of the Company's wholly-owned subsidiaries or any Company employee pension or
benefits plan), becomes the beneficial owners of more than 40 percent of the
aggregate voting power of all classes of stock of the Company having the right
to elect directors under ordinary circumstances; or (iv) the first day on which
a majority of the members of the Board are not individuals who were nominated
for election or elected to the Board with the approval of two-thirds of the
members of the Board just prior to the time of such nomination or election.
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