AUTOBYTEL INC. SEVERANCE BENEFITS AGREEMENT
Exhibit 10.50
This
Severance Benefits Agreement (“Agreement”) entered into effective
as of August 25, 2014 (“Effective Date”) between Autobytel
Inc., a Delaware corporation (“Autobytel” or “Company”), and Xxxxx Xxxx
(“Employee”).
Background
Autobytel has
determined that it is in its best interests to provide Employee
with certain severance benefits to encourage Employee’s
continued employment with, and dedication to the business of, the
Company.
In
consideration of the foregoing and other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties
hereby agree as follows.
1. Definitions.
For purposes of this Agreement, the terms below that begin with
initial capital letters within this Agreement shall have the
specially defined meanings set forth below (unless the context
clearly indicates a different meaning).
(a) “409A Suspension Period”
shall have the meaning set forth in Section 3.
(b) “Arbitration Agreement”
means that certain Mutual Agreement to Arbitrate dated as of March
10, 2014 entered into by and between the Company and
Employee.
(c) “Cause” shall mean the
termination of the Employee’s employment by the Company as a
result of any one or more of the following:
(i) any conviction of,
or pleading of nolo contendre by, the Employee for any
felony;
(ii) any
willful misconduct of the Employee which has a materially injurious
effect on the business or reputation of the Company;
(iii) the
gross dishonesty of the Employee in any way that adversely affects
the Company; or
(iv) a
material failure to consistently discharge Employee’s
employment duties to the Company 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 Employee’s Disability.
For
purposes of this definition of Cause, no act or failure to act, on
the part of the Employee, shall be considered “willful”
if it is done, or omitted to be done, by the Employee in good faith
or with reasonable belief that Employee’s action or omission
was in the best interest of the Company. Employee shall have the
opportunity to cure any such acts or omissions (other than clauses
(i) and (iii) above) within thirty (30) days of the
Employee’s receipt of a written notice from the Company
notifying Employee that, in the opinion of the Company,
“Cause” exists to terminate Employee’s
employment.
(d) “Change of Control” shall
mean any of the following events:
(i)
When any “person” as defined in Section 3(a)(9) of the
Exchange Act and as used in Sections 13(d) and 14(d) thereof
(including a “group” as defined in Section 13(d) of the
Exchange Act, but excluding the Company, any Subsidiary or any
employee benefit plan sponsored or maintained by the Company or any
Subsidiary (including any trustee of such plan acting as trustee)),
directly or indirectly, becomes the “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act, as amended from
time to time), of securities of the Company representing 50% or
more of the combined voting power of the Company’s then
outstanding securities.
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(ii) When the individuals who, as of the Effective
Date, constitute the Board (“Incumbent
Board”), cease for any
reason to constitute at least a majority of the Board; provided
however, that any individual becoming a director subsequent to such
date, whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall, for purposes of this section, be counted as a member of the
Incumbent Board in determining whether the Incumbent Board
constitutes a majority of the Board.
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of the Company or the acquisition of assets of
another corporation (a “Business
Combination”), in each
case, unless, following such Business
Combination:
(1)
all or substantially all of the individuals and entities who were
the beneficial owners of the then outstanding shares of common
stock of the Company and the beneficial owners of the combined
voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than fifty percent (50%) of the then
outstanding shares of common stock and the combined voting power of
the then outstanding securities entitled to vote generally in the
election of directors, respectively, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or indirectly or through one
or more subsidiaries); and
(2)
no person (excluding any employee benefit plan or related trust of
the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, fifty
percent (50%) or more of the then outstanding shares of common
stock of the corporation resulting from such Business Combination
or the combined voting power of such corporation except to the
extent that such ownership existed prior to the Business
Combination.
(iv) Approval by the stockholders of the Company
of a complete liquidation or dissolution of the
Company.
(e) “COBRA” shall mean the
Consolidated Omnibus Budget Reconciliation Act, as amended, and the
rules and regulations promulgated thereunder.
(f) “Code” shall mean the
Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
(g) “Company” means Autobytel,
and upon any assignment to and assumption of this Agreement by any
Successor Company, shall mean such Successor Company.
(h) “Disability” shall mean
the inability of the Employee to perform Employee’s 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.
(i) “Employee’s
Position” means Employee’s position as the Vice
President, Website and Mobile Development of the
Company.
(j) “Employee’s Primary Work
Location” means Autobytel’s headquarters located
at 00000 XxxXxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx,
00000-0000.
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(k) “Good Reason” means any
act, decision or omission by the Company that: (A) materially
modifies, reduces, changes, or restricts Employee’s base
salary as in existence as of the Effective Date or as of the date
prior to any such change, whichever is more beneficial for Employee
at the time of the act, decision, or omission by the Company; (B)
materially
modifies, reduces, changes, or restricts the Employee’s
Health and Welfare Benefits as a whole as in existence as of the
Effective Date hereof or as of the date prior to any such change,
whichever are more beneficial for Employee at the time of the act,
decision, or omission by the Company; (C) materially modifies,
reduces, changes, or restricts the Employee’s authority,
duties, or responsibilities commensurate with the Employee’s
Position but excluding the effects of any reductions in force other
than the Employee’s own termination; (D) relocates the
Employee’s primary place of employment without
Employee’s consent from Employee’s Primary Work
Location to any other location in excess of a fifty (50) mile
radius from the Employee’s Primary Work Location other than
on a temporary basis or requires any such relocation as a condition
to continued employment by Company; (E) constitutes a failure or
refusal by any Company Successor to assume this Agreement; or (F)
involves or results in any material 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 written notice thereof given by the Employee.
Notwithstanding the foregoing, no event shall constitute
“Good Reason” unless (i) the Employee first provides
written notice to the Company within ninety (90) days of the
event(s) alleged to constitute Good Reason, with such notice
specifying the grounds that are alleged to constitute Good Reason,
and (ii) the Company fails to cure such a material breach to the
reasonable satisfaction of the Employee within thirty (30) days
after Company’s receipt of such written notice.
(l) “Health and Welfare
Benefits” means all Company medical, dental, vision,
life and disability plans in which Employee
participates.
(m) “Separation from Service”
or “Separates from
Service” shall mean Employee’s termination of
employment, as determined in accordance with Treas. Reg. §
1.409A-1(h). Employee shall be considered to have experienced a
termination of employment when the facts and circumstances indicate
that Employee and the Company reasonably anticipate that either (i)
no further services will be performed for the Company after a
certain date, or (ii) that the level of bona fide services Employee
will perform for the Company after such date (whether as an
employee or as an independent contractor) will permanently decrease
to no more than twenty percent (20%) of the average level of bona
fide services performed by Employee (whether as an employee or
independent contractor) over the immediately preceding thirty-six
(36) month period (or the full period of services to the Company if
Employee has been providing services to the Company for less than
thirty six (36) months). If Employee is on military leave, sick
leave, or other bona fide leave of absence, the employment
relationship between Employee and the Company shall be treated as
continuing intact, provided that the period of such leave does not
exceed six months, or if longer, so long as Employee retains a
right to reemployment with the Company under an applicable statute
or by contract. If the period of a military leave, sick leave, or
other bona fide leave of absence exceeds six months and Employee
does not retain a right to reemployment under an applicable statute
or by contract, the employment relationship shall be considered to
be terminated for purposes of this Agreement as of the first day
immediately following the end of such six-month period. In applying
the provisions of this section, a leave of absence shall be
considered a bona fide leave of absence only if there is a
reasonable expectation that Employee will return to perform
services for the Company. For purposes of determining whether
Employee has incurred a Separation from Service, the Company shall
include the Company and any entity that would be considered a
single employer with the Company under Code Section 414(b) or
414(c).
(n) “Severance Period” shall
equal nine (9) months.
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(o) “Successor Company” means
any successor to Autobytel or its assets by reason of any Change of
Control.
(p) “Termination Without
Cause” means termination of Employee’s
employment with the Company (i) by the Company (a) for any reason
other than (1) death, (2) Disability or (3) those reasons expressly
set forth in the definition of “Cause,” (b) for no
reason at all, or (c) in connection with or as a result of a Change
of Control; provided, however, that a termination of
Employee’s employment with the Company in connection with a
Change of Control shall not constitute a Termination Without Cause
if Employee is offered employment with the Successor Company under
terms and conditions, including position, salary and other
compensation, and benefits, that would not provide Employee the
right to terminate Employee’s employment for Good
Reason.
2. Severance Benefits
and Conditions.
(a) In the event of (i)
Termination Without Cause by the Company, or (ii) the termination
of Employee’s employment with the Company by Employee for
Good Reason within 30 days following the earlier of (1) the
Company’s failure to cure within the 30-day period set forth
in the definition of Good Reason, and (2) the Company’s
notice to Employee that it will not cure the event giving rise to
such termination for Good Reason, then (A) Employee shall receive
upon such termination a lump sum amount equal to the number of
months constituting the Severance Period at the time of termination
times the Employee’s monthly base salary (determined as the
Employee’s highest monthly base salary paid to Employee while
employed by the Company; base salary does not include any bonus,
commissions or other incentive payments or compensation); (B)
subject to Section 2(b) below, Employee shall be entitled to a
continuation of all Health and Welfare Benefits for Employee and,
if applicable, Employee’s eligible dependents during the
Severance Period at the time they would have been provided or paid
had the Employee remained an employee of Company during the
Severance Period and at the levels provided prior to the event
giving rise to a termination; and (C) the Company shall make
available to Employee career transition services at a level and
with a provider selected by the Company in accordance with Section
2(g) below.
(b) (i) With respect to
Health and Welfare Benefits that are eligible for continuation
coverage under COBRA, in the event the Company is unable to
continue Employee’s and Employee’s eligible
dependents’ (assuming such dependents were covered by
Autobytel at the time of termination) participation under the
Company’s then existing insurance policies for such Health
and Welfare Benefits, Employee may elect to obtain coverage for
such Health and Welfare Benefits either by (1) electing COBRA
continuation benefits for Employee and Employee’s eligible
dependents; (2) obtaining individual coverage for Employee and
Employee’s eligible dependents (if Employee and
Employee’s eligible dependents qualify for individual
coverage); or (3) electing coverage as eligible dependents under
another person’s group coverage (if Employee and
Employee’s eligible dependents qualify for such dependent
coverage), or any combination of the foregoing alternatives.
Employee may also initially elect COBRA continuation benefits and
later change to individual coverage or dependent coverage for
Employee or any eligible dependent of Employee, but Employee
understands that if continuation of Health and Welfare Benefits
under COBRA is not initially selected by Employee or is later
terminated by Employee, Employee will not be able to return to
continuation coverage under COBRA. The Company shall pay directly
or reimburse to Employee the monthly premiums for the benefits or
coverage selected by Employee, with such payment or reimbursement
not to exceed the monthly premiums the Company would have paid
assuming Employee elected continuation of benefits under COBRA. The
Company’s obligation to pay or reimburse for the Health and
Welfare Benefits covered by this Section 2(b)(i) shall terminate
upon the earlier of (i) the end of the Severance Period; and (ii)
Employee’s employment by an employer that provides Employee
and Employee’s eligible dependents with group coverage
substantially similar to the Health and Welfare Benefits provided
to Employee and Employee’s eligible dependents at the time of
the termination of Employee’s employment with the Company,
provided that Employee and Employee’s eligible dependents are
eligible for participation in such group coverage.
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(ii)
With respect to Health and Welfare Benefits that are not eligible
for continuation coverage under COBRA, in the event the Company is
unable to continue Employee’s participation under the
Company’s then existing insurance policies for such Health
and Welfare Benefits, Employee may elect to obtain coverage for
such Health and Welfare Benefits either by (1) obtaining individual
coverage for Employee (if Employee qualifies for individual
coverage); or (2) electing coverage as an eligible dependent under
another person’s group coverage (if Employee qualifies for
such dependent coverage), or any combination of the foregoing
alternatives. The Company shall pay directly or reimburse to
Employee the monthly premiums for the benefits or coverage selected
by Employee, with such payment or reimbursement not to exceed the
monthly premiums the Company paid for such Health and Welfare
Benefits at the time of termination of Employee’s employment
with the Company. The Company’s obligation to pay or
reimburse for the Health and Welfare Benefits covered by this
Section 2(b)(ii) shall terminate upon the earlier of (i) the end of
the Severance Period; and (ii) Employee’s employment by an
employer that provides Employee with group coverage substantially
similar to the Health and Welfare Benefits provided to Employee at
the time of the termination of Employee’s employment with the
Company, provided that Employee is eligible for participation in
such group coverage. Employee acknowledges and agrees that the
Company shall not be obligated to provide any Health and Welfare
Benefits covered by this Section 2(b)(ii) for Employee if Employee
does not qualify for coverage under the Company’s existing
insurance policies for such Health and Welfare Benefits, for
individual coverage, or for dependent coverage.
(c) The
payments and benefits set forth in Sections 2(a) and 2(b) are
conditioned upon and shall be provided to Employee only if (i)
Employee has executed and delivered to the Company a Separation and
Release Agreement in favor of the Company and Releasees, which
agreement shall be substantially in the form attached hereto as
Exhibit A (“Release”) no later than the
expiration of the applicable period of time allowed for Employee to
consider the Release as set forth in Section 17 of the Release
(“Release Consideration
Period”); (ii) Employee has not revoked the Release
prior to the expiration of the applicable revocation period set
forth in Section 17 of the Release (“Release Revocation Period”); and
(iii) the Release has become effective and non-revocable no later
than the cumulative period of time represented by the sum of the
maximum Release Consideration Period and the maximum Release
Revocation Period. No payments or benefits set forth in Sections
2(a) or 2(b) shall be due or payable to, or provided to, Employee
if the Release has not become effective and non-revocable in
accordance with the requirements of this Section 2(c).
(d)
Upon satisfaction of the conditions set forth in Section 2(c), but
subject to the last sentence of this Section 2(d), all payments
under Section 2(a)(A) shall be made to Employee within five (5)
business days after the Release becomes effective and non-revocable
in accordance with its terms. In any case, the payment under
Section 2(a)(A) shall be made no later than two and one-half months
after the end of the calendar year in which Employee’s
Separation from Service occurs, provided that the Release shall
have become effective and non-revocable in compliance with Section
2(c) prior to expiration of such two and one-half month period. If
the period of time covered by the entire allowed Release
Consideration Period, the entire Revocation Period and the entire
five business day period described above in this Section 2(d)
(considering such periods consecutively) begins in one calendar
year and ends in the following calendar year, all payments under
Section 2(a)(A) shall be made to Employee on the first business day
of such following calendar year which is five (5) or more business
days after the date on which the Release became effective and
non-revocable in accordance with its terms.
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(e) In
addition to the payments and benefits under Sections 2(a) and 2(b),
to the extent required by applicable law or the Company’s
incentive or other compensation plans applicable to Employee, if
any, upon any termination of Employee’s employment Employee
shall receive (i) any amounts earned and due and owing to Employee
as of the termination date with respect to any base salary,
incentive compensation or commissions; and (ii) any other payments
required by applicable law (including payments with respect to
accrued and unused vacation time). Payments required under this
Section 2(e) are not conditioned upon Employee’s signing the
Release and shall be made within the time period(s) required by
applicable law.
(f) All
payments and benefits under this Section 2 are subject to legally
required federal, state and local payroll deductions and
withholdings.
(g) To
receive career transition services, Employee must contact the
service provider no later than 30 days after the Release becomes
effective.
(h)
Other than the payments and benefits provided for in this Section
2, Employee shall not be entitled to any additional payments or
benefits from the Company resulting from a termination of
Employee’s employment with the Company.
3. Taxes. All
payments made pursuant to this Agreement will be subject to
withholding of applicable taxes. Notwithstanding the foregoing, and
except as otherwise specifically provided elsewhere in this
Agreement, Employee is solely responsible and liable for the
satisfaction of any federal, state, province or local taxes that
may arise with respect to this Agreement (including any taxes and
interest arising under Section 409A of the Code). Neither the
Company nor any of its employees, directors, or service providers
shall have any obligation whatsoever to pay such taxes or interest,
to prevent Employee from incurring them, or to mitigate or protect
Employee from any such tax or interest liabilities. Notwithstanding
anything in this Agreement to the contrary, if any amounts that
become due under this Agreement on account of Employee’s
termination of employment constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code,
payment of such amounts shall not commence until Employee incurs a
Separation from Service. If, at the time of Employee’s
Separation from Service under this Agreement, Employee is a
“specified employee” (within the meaning of Section
409A of the Code), any amounts that constitute “nonqualified
deferred compensation” within the meaning of Section 409A of
the Code that become payable to Employee on account of
Employee’s Separation from Service (including any amounts
payable pursuant to the preceding sentence) will not be paid until
after the end of the sixth calendar month beginning after
Employee’s Separation from Service (“409A Suspension Period”). Within
14 calendar days after the end of the 409A Suspension Period,
Employee shall be paid a lump sum payment, without interest, in
cash equal to any payments delayed because of the preceding
sentence. Thereafter, Employee shall receive any remaining benefits
as if there had not been an earlier delay. With respect to the
reimbursement of expenses to which Employee is entitled under this
Agreement, if any, or the provision of in-kind benefits to Employee
as specified under this Agreement, if any, such reimbursement of
expenses or provision of in-kind benefits shall be subject to the
following conditions: (i) the expenses eligible for
reimbursement or the amount of in-kind benefits provided in one
taxable year shall not affect the expenses eligible for
reimbursement or the amount of in-kind benefits provided in any
other taxable year, except for any medical reimbursement
arrangement providing for the reimbursement of expenses referred to
in Section 105(b) of the Code, solely to the extent that the
arrangement provides for a limit on the amount of expenses that may
be reimbursed under such arrangement over some or all of the period
in which the reimbursement arrangement remains in effect;
(ii) the reimbursement of an eligible expense shall be made no
later than the end of the calendar year after the calendar year in
which such expense was incurred; (iii) the right to
reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit; and (iv) the right to
reimbursement or provision of in-kind benefits shall not apply to
any expenses incurred or benefits to be provided beyond the last
day of the second taxable year following the year in which
Employee's Separation from Service occurred.
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4. Arbitration.
Any controversy or claim arising out of, or related to, this
Agreement, or the breach thereof, shall be governed by the terms of
the Arbitration Agreement, which is incorporated herein by
reference.
5. Entire
Agreement. All oral or written agreements or representations
express or implied, with respect to the subject matter of this
Agreement are set forth in this Agreement. This Agreement contains
the entire integrated understanding between the parties hereto and
supersedes any prior employment, severance, or change-in-control
protective agreement or other agreement, plan or arrangement
between the Company or any predecessor and Employee. No provision
of this Agreement shall be interpreted to mean that Employee is
subject to receiving fewer benefits than those available to
Employee without reference to this Agreement. The Parties
acknowledge and agree that the Prior Severance Agreement is hereby
terminated and shall have no further force or effect.
6. Notices.
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 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 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 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:
00000
XxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx, 00000-0000
Facsimile: (000)
000-0000
Attn: Chief Legal Officer
If to
the Employee:
To
Employee’s latest home address on file with the
Company
7. No Waiver.
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.
8. Amendment to 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 whom enforcement of such
modification, waiver amendment, discharge, or change is or may be
sought.
9. Non-Disclosure.
Unless required by applicable law, rule, regulation or order or to
enforce this Agreement, Employee shall not disclose the existence
of this Agreement or the underlying terms to any third party,
including without limitation, any former, present or future
employee of the Company, other than to Employee’s immediate
family who have a need to know such matters or to Employee’s
tax or legal advisors who have a need to know such matters. If
Employee does disclose this Agreement or any of its terms to any of
Employee’s immediate family or tax or legal advisors, then
Employee will inform them that they also must keep the existence of
this Agreement and its terms confidential. The Company may disclose
the existence or terms of the Agreement and its terms and may file
this Agreement as an exhibit to its public filings if it is
required to due so under applicable law, rule, regulation or
order.
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10. Enforceability;
Severability. If any provision of this Agreement shall be
invalid or unenforceable, in whole or in part, such provision shall
be deemed to be modified or restricted to the extent and in the
manner necessary to render the same valid and enforceable, or shall
be deemed excised from this Agreement, as the case may require, and
this Agreement shall be construed and enforced to the maximum
extent permitted by law as if such provision had been originally
incorporated herein as so modified or restricted, or as if such
provision had not been originally incorporated herein, as the case
may be.
11. Governing
Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of California without giving
effect to such State’s choice of law rules. This Agreement is
deemed to be entered into entirely in the State of California. This
Agreement shall not be strictly construed for or against either
party.
12. No Third Party
Beneficiaries. Except as otherwise set forth in this
Agreement, nothing contained in this Agreement is intended or shall
be construed to create rights running to the benefit of any third
party.
13. Successors of the
Company. The rights and obligations of the Company under
this Agreement shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the Company, including any
Successor Company. This Agreement shall be assignable by the
Company in the event of a merger or similar transaction in which
the Company is not the surviving entity, or a sale of all or
substantially all of the Company’s assets.
14. Rights
Cumulative. 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.
15. No Right or
Obligation of Employment. Employee acknowledges and agrees
that nothing in this Agreement shall confer upon Employee any right
with respect to continuation of employment by the Company, nor
shall it interfere in any way with Employee’s right or the
Company’s right to terminate Employee’s employment at
any time, with or without Cause.
16. 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. Each party hereto further
agrees and acknowledges that it is sophisticated in legal affairs
and has reviewed this Agreement in detail. Accordingly, 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.
17. Legal and Tax
Advice. Employee acknowledges that: (i) the Company has
encouraged Employee to consult with an attorney and/or tax advisor
of Employee’s choosing (and at Employee’s own cost and
expense) in connection with this Agreement, and (ii) Employee is
not relying upon the Company for, and the Company has not provided,
legal or tax advice to Employee in connection with this Agreement.
It is the responsibility of Employee to seek independent tax and
legal advice with regard to the tax treatment of this Agreement and
the payments and benefits that may be made or provided under this
Agreement and any other related matters. Employee acknowledges that
Employee has had a reasonable opportunity to seek and consider
advice from Employee’s counsel and tax advisors.
18. Counterparts.
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. The parties agree that facsimile copies
of signatures shall be deemed originals for all purposes hereof and
that a party may produce such copies, without the need to produce
original signatures, to prove the existence of this Agreement in
any proceeding brought hereunder.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Company and
Employee have executed and entered into this Agreement effective as
of the date first shown above.
By:
/s/ Xxxxx X.
Xxxxxx
Xxxxx
X. Xxxxxx
Executive Vice
President, Chief Legal and
Administrative
Officer and Secretary
EMPLOYEE
/s/ Xxxxx
Xxxx.
Xxxxx
Xxxx
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EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
It is
hereby agreed by and between you, Xxxxx Xxxx (for yourself, your
spouse, family, agents and attorneys) (jointly, “You” or “Employee”), and Autobytel Inc.,
its predecessors, successors, affiliates, directors, employees,
shareholders, fiduciaries, insurers, employees and agents (jointly,
the “Company”),
as follows:
1. Separation of
Employment. You acknowledge that your employment with the
Company ended effective [_______], 201[__] (“Employment Termination Date”), and
that You will perform no further duties, functions or services for
the Company subsequent to the Employment Termination Date. You have
resigned or hereby resign from all officer and director positions
You held with the Company or any of its subsidiaries effective as
of the Employment Termination Date. This Separation and Release
Agreement (“Release”) is entered into in
connection with that certain Severance Benefits Agreement dated
effective as of August 25, 2014 by and between the Company and
Employee (“Severance Benefits
Agreement”).
2. Release
Consideration. In exchange for your promises and obligations
in this Release and the Severance Benefits Agreement, including the
release of claims set forth below, if You sign and do not revoke
this Release and this Release becomes effective, the Company will
pay You the amounts, and will provide the benefits, due to You
under the Severance Benefits Agreement, minus legally required
federal, state and local payroll deductions and withholdings.
Payment of any monetary amount provided for in this Section 2 will
be made within the time periods required by the Severance Benefits
Agreement (except for payments or benefits that will be paid or
provided over time as provided therein) and, if no time is
specified, within 5 business days after this Release becomes
effective.
3. Acknowledgement of
Receipt of Amounts Due. You acknowledge and agree that You
have received all, and that the Company does not owe You any
additional, payments, benefits or other compensation as a result of
your employment with the Company or your separation from employment
with the Company, including, but not limited to, wages,
commissions, bonuses, vacation pay, severance pay, expenses, fees,
or other compensation or payments of any kind or nature, other than
those amounts or benefits, if any, payable or to be provided to You
after the date hereof pursuant to the Severance Benefits Agreement
after this Release becomes effective.
4. Return of Company
Property. You represent and warrant that You have returned
to the Company any and all documents, software, equipment
(including, but not limited to, computers and computer-related
items), and all other materials or other things in your possession,
custody, or control which are the property of the Company,
including, but not limited to, Company identification, keys,
computers, cell phones, and the like, wherever such items may have
been located; as well as all copies (in whatever form thereof) of
all materials relating to your employment, or obtained or created
in the course of your employment with the Company. You hereby
represent that, other than those materials You have returned to the
Company pursuant to this Section 4, You have not copied or caused
to be copied, and have not transferred or printed-out or caused to
be transferred or printed-out, any software, computer disks,
e-mails or other documents other than those documents generally
available to the public, or retained any other materials
originating with or belonging to the Company. You further represent
that You have not retained in your possession, custody or control,
any software, documents or other materials in machine or other
readable form, which are the property of the Company, originated
with the Company, or were obtained or created in the course of or
relate to your employment with the Company.
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5. Confidentiality and
Non-Solicitation/Interference.
(a) You
shall keep confidential, and shall not hereafter use or disclose to
any person, firm, corporation, governmental agency, or other
entity, in whole or in part, at any time in the future, any trade
secret, proprietary information, or confidential information of the
Company, including, but not limited to, information relating to
trade secrets, processes, methods, pricing strategies, customer
lists, marketing plans, product introductions, advertising or
promotional programs, sales, financial results, financial records
and reports, regulatory matters and compliance, and other
confidential matters, except as required by law and as necessary
for compliance purposes. These obligations are in addition to the
obligations set forth in any confidentiality or non-disclosure
agreement between You and the Company, including, without
limitation, that certain Employee Confidentiality Agreement dated
as of [_______], [__], which shall remain binding on You after the
Employment Termination Date.
(b)
Unless required by applicable law, rule, regulation or order or to
enforce this Agreement, Employee shall not disclose the existence
of the Severance Benefits Agreement or this Release or the
underlying terms to any third party, including without limitation,
any former, present or future employee of the Company, other than
to Employee’s immediate family who have a need to know such
matters or to Employee’s tax or legal advisors who have a
need to know such matters. If Employee does disclose this Release,
the Severance Benefits Agreement or any of their respective terms
to any of Employee’s immediate family or tax or legal
advisors, then Employee will inform them that they also must keep
the existence of this Release, the Severance Benefits Agreement and
their respective terms confidential. The Company may disclose the
existence or terms of this Release, the Severance Benefits
Agreement and their respective terms and may file this Release and
the Severance Benefits Agreement as exhibits to its public filings
if it is required to due so under applicable law, rule, regulation
or order.
(c) For
a period of one (1) year immediately following this Release
becoming effective, You agree that You will not interfere with
Company’s business by soliciting an employee to leave
Company’s employ, or by inducing a consultant or vendor to
sever its relationship with Company. You may not, at any time, use
the Company’s trade secrets to solicit business from any
source, including the Company’s customers or clients. This
Section 5(c) is not intended to, and shall not, prevent You from
lawful competition with the Company. You represent and warrant that
You have not engaged in any of the foregoing activities prior to
the effective date of this Release.
6. Nondisparagement.
You agree that neither You nor anyone acting on your behalf or at
your direction will disparage, denigrate, defame, criticize, impugn
or otherwise damage or assail the reputation or integrity of the
Company to any third party and in particular to any current or
former employee, officer, director, contractor, supplier, customer,
or client of the Company or prospective or actual purchaser of the
equity interests of the Company or its business or
assets.
7. Unconditional
General Release of Claims.
(a) In
consideration for the payment and benefits provided for in Section
2, and notwithstanding the provisions of Section 1542 of the Civil
Code of California, You unconditionally release and forever
discharge the Company, and the Company’s current, former, and
future controlling shareholders, subsidiaries, affiliates, related
companies, predecessor companies, divisions, directors, trustees,
officers, employees, agents, attorneys, successors, and assigns
(and the current, former, and future controlling shareholders,
directors, trustees, officers, employees, agents, and attorneys of
any such subsidiaries, affiliates, related companies, predecessor
companies, and divisions) (all of the foregoing released persons or
entities being referred to herein as “Releasees”), from any and all
claims, complaints, demands, actions, suits, causes of action,
obligations, damages and liabilities of whatever kind or nature,
whether known or unknown, based on any act, omission, event,
occurrence, or nonoccurrence from the beginning of time to the date
of execution of this Release, including, but not limited to, claims
that arise out of or in any way relate to your employment or your
separation from employment with the Company.
A-2
(b) You
acknowledge and agree that the foregoing unconditional and general
release includes, but is not limited to, (i) any claims for salary,
bonuses, commissions, equity, compensation (except as specified in
this Agreement), wages, penalties, premiums, severance pay,
vacation pay or any benefits under the Employee Retirement Income
Security Act of 1974, as amended; (ii) any claims of harassment,
retaliation or discrimination; (iii) any claims based on any
federal, state or governmental constitution, statute, regulation or
ordinance, including, without limitation, Title VII of the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, the Americans With Disabilities
Act, Section 1981 of the Civil Rights Act of 1866, the California
Fair Employment and Housing Act, the California Family Rights Act,
the Family and Medical Leave Act, the California Constitution, the
California Labor Code, the California Industrial Welfare Commission
Wage Orders, the California Government Code, the Worker Adjustment
and Retraining Notification Act; (iv) whistleblower claims, claims
of breach of implied or express contract, breach of promise,
misrepresentation, negligence, fraud, estoppel, defamation,
infliction of emotional distress, violation of public policy,
wrongful or constructive discharge, or any other employment-related
tort, and any claims for costs, fees, or other expenses, including
attorneys’ fees; and (v) any other aspect of your employment
or the termination of your employment.
(c) For
the purpose of implementing a full and complete release, You
expressly acknowledge and agree that this Release resolves all
claims You may have against the Company and the Releasees as of the
date of this Release, including but limited to claims that You did
not know or suspect to exist in your favor at the time of the
execution of this Release. You expressly waive any and all rights
which You may have under the provisions of Section 1542 of the
California Civil Code or any similar state or federal statute.
Section 1542 provides as follows:
“A general
release does not extend to claims which the creditor does not know
or suspect to exist in his or her favor at the time of executing
the release, which if known by him or her must have materially
affected his or her settlement with the debtor.”
(d)
This Release will not waive the Employee’s rights to
indemnification under the Company’s certificate of
incorporation or by-laws or, if applicable, any written agreement
between the Company and the Employee, or under applicable
law.
(e)
You hereby certify that
You have not experienced a job-related illness or injury for which
You have not already filed a claim.
(f)
This general release does not waive or release rights or claims
arising after You sign this Release.
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8. Covenant Not to
Xxx. A
“covenant not to xxx” is a promise not to xxx in court.
This covenant differs from a general release of claims in that,
besides waiving and releasing the claims covered by this Release,
You represent and warrant that You have not filed, and agree that
You will not file, or cause to be filed or maintained, any judicial
complaint, lawsuit or demand for arbitration involving any claims
You have released in this Release, and You agree to withdraw any
judicial complaints, lawsuits or demands for arbitration You have
filed, or were filed on your behalf, prior to the effective date of
this Release. Still, You may xxx to enforce this Release. You agree
if You breach this covenant, then You must pay the legal expenses
incurred by incurred by any Releasee in defending against your
suit, including reasonable attorneys’ fees, or, at the
Company’s option, return everything paid to You under this
Agreement. In that event, the Company shall be excused from making
any further payments or continuing any other benefits otherwise
owed to You under paragraph 2 of this Agreement. Furthermore, You
give up all rights to individual damages in connection with any
administrative or court proceeding with respect to your employment
with or termination of employment from, the Company. You also agree
that if You are awarded money damages, You will assign your right
and interest to such money damages (i) in connection with an
administrative charge, to the relevant administrative agency; and
(ii) in connection with a lawsuit or demand for arbitration, to the
Company.
9. Cooperation With
Company. You agree to assist and cooperate (including, but
not limited to, providing information to the Company and/or
testifying truthfully in a proceeding) in the investigation and
handling of any internal investigation, governmental 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.
10. No
Reemployment. You
acknowledge and agree that the Company has no obligation to employ
You or offer You employment in the future and You shall have no
recourse against the Company if it refuses to employ You or offer
You employment. If You do seek re-employment, then this Release
shall constitute sufficient cause for the Company to refuse to
re-employ You. Notwithstanding the foregoing, the Company has the
right to offer to re-employ You in the future if, in its sole
discretion, it chooses to do so.
11. No Admission of
Liability. This Release does not constitute an admission
that the Company or any other Releasee has violated any law, rule,
regulation, contractual right or any other duty or
obligation.
12. Severability.
Should any provision of this Release be declared or be determined
by any court or arbitrator to be illegal or invalid, the validity
of the remaining parts, terms, or provisions shall not be affected,
and said illegal or invalid part, term, or provision shall be
deemed not to be part of this Release.
13. Governing
Law. This Release is made and entered into in the State of
California and shall in all respects be interpreted, enforced, and
governed under the law of that state, without reference to conflict
of law provisions thereof.
14. Interpretation.
The language of all parts in this Release shall be construed as a
whole, according to fair meaning, and not strictly for or against
any party. The captions and headings contained in this Agreement
are for convenience only and shall not control the meaning, effect,
or construction of this Agreement.
A-4
15. Knowing and
Voluntary Agreement. You have carefully reviewed this
Release and understand the terms and conditions it contains. By
entering into this Release, You are giving up potentially valuable
legal rights. You specifically acknowledge that You are waiving and
releasing any rights You may have under the ADEA. You acknowledge
that the consideration given for this waiver and release is in
addition to anything of value to which You were already entitled.
You acknowledge that You are signing this Release knowingly and
voluntarily and intend to be bound legally by its
terms.
16. Entire
Agreement. You hereby acknowledge that no promise or
inducement has been offered to You, except as expressly stated in
this Release and in the Severance Benefits Agreement, and You are
relying upon none. This Release and the Severance Benefits
Agreement represent the entire agreement between You and the
Company with respect to the subject matter hereof, and supersede
any other written or oral understandings between the parties
pertaining to the subject matter hereof and may only be amended or
modified with the prior written consent of You and the
Company.
17. Period for Review
and Consideration/Revocation Rights.
[Alternative
1 for Section 17 if Employee is NOT age 40 or over at time of
separation from employment]
You
understand that You have seven (7) days after this Release has been
delivered to You by the Company to decide whether to sign this
Release, although You may sign this Release at any time within the
seven (7) day period. If You do sign it, You also understand that
You will have an additional three (3) days after the date You
deliver this signed Release to the Company and to change your mind
and revoke this Release, in which case a written notice of
revocation must be delivered to the Company’s Chief Legal
Officer, Autobytel Inc., 00000 XxxXxxxxx Xxxx. Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000-0000, on or before the third (3rd) day after your
delivery of this signed Release to the Company (or on the next
business day if the third calendar day is not a business day). You
understand that this Release will not become effective or
enforceable until after that three (3) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments and benefits specified in Paragraph 2.
[Alternative
2 for Section 17 if Employee is age 40 or over at time of
separation from employment, separation from employment is NOT in
connection with a group separation, and ADEA Claims are being
released]
You
understand that You have twenty-one (21) days after this Release
has been delivered to You by the Company to decide whether to sign
this Release, although You may sign this Release at any time within
the twenty-one (21) day period. If You do sign it, You also
understand that You will have an additional seven (7) days after
the date You deliver this signed Release to the Company and to
change your mind and revoke this Release, in which case a written
notice of revocation must be delivered to the Company’s Chief
Legal Officer, Autobytel Inc., 00000 XxxXxxxxx Xxxx. Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000-0000, on or before the seventh (7th) day
after your delivery of this signed Release to the Company (or on
the next business day if the seventh calendar day is not a business
day). You understand that this Release will not become effective or
enforceable until after that seven (7) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments and benefits specified in Paragraph 2.
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[Alternative
3 for Section 17 if Employee is age 40 or over at time of
separation from employment, separation from employment IS in
connection with a group termination, and ADEA Claims are being
released]
(a) You
understand that You have forty-five (45) days after this Release
has been delivered to You by the Company to decide whether to sign
this Release, although You may sign this Release at any time within
the forty-five (45) day period. If You do sign it, You also
understand that You will have an additional seven (7) days after You sign to change your
mind and revoke the Agreement, in which case a written notice of
revocation must be delivered to the Company’s Chief Legal
Officer, Autobytel Inc., 00000 XxxXxxxxx Xxxx. Xxxxx 000, Xxxxxx,
Xxxxxxxxxx 00000-0000, on or before the seventh (7th) day after
your delivery of this signed Release to the Company (or on the next
business day if the seventh calendar day is not a business day).
You understand that this Release will not become effective or
enforceable until after that seven (7) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments and benefits specified in Paragraph 2.
(b) You
acknowledge that You have received the group information of
employees included in the Company’s ____________ group
termination program, the eligibility factors for participation in
the program, and the time limits for participation in the program.
You also acknowledge that You have received lists of the ages and
job titles of employees eligible or selected for the program and
employees not eligible or selected for the group termination
program. This information is set forth on Appendix A attached
hereto and incorporated herein by reference.
18. Advice of Attorney
and Tax Advisor. Employee acknowledges that: (i) the Company
has advised Employee to consult with an attorney and/or tax advisor
of Employee’s choosing (and at Employee’s own cost and
expense) before executing this Release, and (ii) Employee is not
relying upon the Company for, and the Company has not provided,
legal or tax advice to Employee in connection with this Release. It
is the responsibility of Employee to seek independent tax and legal
advice with regard to the tax treatment of this Release and the
payments and benefits that may be made or provided under this
Release and any other related matters. Employee acknowledges that
Employee has had a reasonable opportunity to seek and consider
advice from Employee’s attorney and tax
advisors.
PLEASE
READ CAREFULLY. THIS RELEASE INCLUDES A GENERAL RELEASE OF ALL
CLAIMS, KNOWN AND UNKNOWN. YOU MAY NOT MAKE ANY CHANGES TO THE
TERMS OF THIS RELEASE THAT ARE NOT AGREED UPON BY THE COMPANY IN
WRITING. ANY CHANGES SHALL CONSTITUTE A REJECTION OF THIS RELEASE
BY EMPLOYEE.
|
Dated:_____________,
201_
|
_____________________________________
|
|
|
Xxxxx
Xxxx
|
|
|
|
|
Dated:_____________,
201_
|
|
|
|
|
|
|
By:
__________________________________
|
|
|
[Officer’s
Name]
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|
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[Title]
|
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