AMENDED AND RESTATED SEVERANCE BENEFITS AGREEMENT
Exhibit
10.18
AMENDED
AND RESTATED SEVERANCE BENEFITS AGREEMENT
This
Amended and Restated Severance Benefits Agreement
(“Agreement”)
entered into effective as of March 3, 2021, (“Effective Date”) between AutoWeb,
Inc., a Delaware corporation (“AutoWeb” or “Company”), and Xxxx X.
Xxxxxx (“Employee”).
Background
AutoWeb
has determined that it is in its best interests to encourage
Employee’s continued employment with, and dedication to the
business of, AutoWeb, and as a result thereof, AutoWeb and Employee
have previously entered into a Severance Benefits Agreement dated
as of October 22, 2018 (“Prior Severance Agreement”). After
consultation by the Compensation Committee of the Company’s
Board of Directors with the committee’s independent
compensation advisor to evaluate updated market and peer group data
related to severance benefits for senior management, the Company
has determined that it is in the Company’s best interests to
amend the Prior Severance Agreement to provide for additional
incentive to encourage Employee’s continued employment with
AutoWeb and dedication to AutoWeb’s business.
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 October
22, 2018 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 contendere 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.
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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 in 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.
(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.
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(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 AutoWeb,
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
Senior Vice President, Chief People Officer of the
Company.
(j) “Employee’s Primary Work
Location” means [PERSONAL HOME ADDRESS
REDACTED].
(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.
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(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 twelve (12) months.
(o) “Successor Company” means
any successor to AutoWeb or its assets by reason of any Change in
Control.
(p) “Termination Without
Cause” means termination of Employee’s
employment with the Company by the Company (i) for any reason other
than (1) death, (2) Disability or (3) those reasons expressly set
forth in the definition of “Cause,” (ii) for no reason
at all, or (iii) in connection with or as a result of a Change in
Control; provided, however, that a termination of Employee’s
employment with the Company in connection with a Change in 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.
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2. Severance Benefits
and Conditions.
(a) (i) Termination
Not in Connection With or Within 18 Months of a Change in
Control. If before, or more than eighteen months following,
a Change in Control there occurs (i) a Termination Without Cause,
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 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; (C) Employee shall receive the amount
of Employee’s annual incentive compensation plan payout for
the annual incentive compensation plan year in which
Employee’s date of termination occurred, based on actual
performance for the entire performance period and prorated for the
amount of time Employee was employed by the Company prior to the
date of termination during such plan year (“Actual Incentive Compensation
Payment”); and (D) 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.
(ii) Termination
In Connection With or Within 18 Months of a Change in
Control. If upon, or within eighteen months
following, a Change in Control there occurs (i) a
Termination Without Cause, or (ii) the termination of
Employee’s employment with the Company by Employee for Good
Reason, if the event giving rise to such Good Reason occurred
within eighteen (18) months following a Change in Control, 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 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; (C) Employee shall receive a
lump sum amount equal to Employee’s target annual incentive
compensation opportunity at the rate of base annual salary and the
target annual incentive compensation opportunity in effect
immediately before such termination, prorated for the amount of
time Employee was employed by the Company prior to the date of
termination during such plan year (“Target Incentive Compensation
Payment”); (D) in addition to the Target Incentive
Compensation Payment, if the Actual Incentive Compensation Payment
is more than the Target Incentive Compensation Payment, then
Employee shall receive an additional lump sum payment equal to the
difference between the Actual Incentive Compensation Payment and
the Target Incentive Compensation Payment; and (E) 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.
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(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 AutoWeb
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.
(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.
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(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 Confidential
Separation and Release Agreement in favor of the Company and
Releasees (as defined the Release), 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 19 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 19 of the Release (“Release Revocation Period”); (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; and (iv) Employee has complied with the terms and
conditions set forth in the Release. 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) Subject
to Section 3, satisfaction of the conditions set forth in Section
2(c), and the last sentence of this Section 2(d), all payments
under Section 2(a)(i)(A), Section 2(a)(ii)(A), and Section
2(a)(ii)(C) 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 payments under Section 2(a)(i)(A),
Section 2(a)(ii)(A) and Section 2(a)(ii)(C) 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)(i)(A), Section 2(a)(ii)(A) and Section
2(a)(ii)(C) 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.
(e) Subject
to Section 3, the satisfaction of the conditions set forth in
Section 2(c), and the last sentence of this Section 2(e), the lump
sum cash payments under Section 2(a)(i)(C) and Section 2(a)(ii)(D)
shall be made once the Company’s board of directors has
determined and approved the payouts, if any, under the
Company’s annual incentive compensation plan for the
applicable year and at the same time as payouts are made to other
executive officers of the Company who are actively employed by the
Company at the time. In any case, the lump sum cash payments under
Section 2(a)(i)(C) and Section 2(a)(ii)(D) 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 its terms prior to expiration of such two and
one-half month period. If the period of time covered by the entire
allowed Release Consideration Period and the entire Release
Revocation Period (considering such periods consecutively) begins
in one calendar year and ends in the following calendar year, the
lump sum cash payments under Section 2(a)(i)(C) and Section
2(a)(ii)(D) 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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(f) 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(f) are not conditioned upon Employee’s signing the
Release and shall be made within the time period(s) required by
applicable law.
(g) All
payments and benefits under this Section 2 are subject to legally
required federal, state and local payroll deductions and
withholdings.
(h) To
receive career transition services, Employee must contact the
service provider no later than 30 days after the Release becomes
effective.
(i) 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:
000
Xxxxx Xxxxxx Xx., Xxxxx 000
Xxxxx,
XX 00000
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.
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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 do so under applicable law, rule, regulation or
order.
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 Florida without giving
effect to such State’s choice of law rules. This Agreement is
deemed to be entered into entirely in the State of Florida. 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.
-10-
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.]
-11-
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 Officer and Secretary
EMPLOYEE
/s/ Xxxx X.
Xxxxxx
Xxxx X.
Xxxxxx
|
-12-
EXHIBIT A
CONFIDENTIAL SEPARATION AND RELEASE AGREEMENT
This
Confidential Separation and Release Agreement (“Release”) is hereby entered into
as of ___________, 20__ (“Release Signature Date”) by and
between Xxxx X. Xxxxxx (for such person and such person’s
spouse, family, heirs, agents and attorneys) (collectively and
jointly, “You,”
“Your,” or
“Employee”), and
AutoWeb, Inc., a Delaware corporation (for itself and its
predecessors, successors, affiliates, directors, employees,
shareholders, fiduciaries, insurers, employees and agents
(collectively and jointly, “AutoWeb” or “Company”)(Employee and the Company
being collectively referred to herein as the “Parties”).
Background
[Insert
Description of Events Leading to Employment
Termination]
This
Release is entered into in connection with that certain Amended and
Restated Severance Benefits Agreement dated effective as of March
3, 2021, by and between the Company and Employee
(“Severance Benefits
Agreement”) (this Release and the Severance Benefits
Agreement are collectively referred to herein as the
“Severance and Release
Agreements”).
In
order to implement the foregoing and for valuable consideration,
receipt of which is hereby acknowledged, and in consideration of
the representations, covenants, and releases contained herein, the
parties hereto agree as follows.
1. Separation
of Employment.
(a) The
effective date of the termination of your employment with the
Company is [_______], 20[__] (“Employment Termination Date”). You
have delivered your resignation 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.
(b) You
will not perform any further duties, functions or services for the
Company subsequent to the Employment Termination Date.
(c) You
acknowledge that You shall continue to be governed by and subject
to the Company’s Securities Trading Policy until such time as
the Company notifies You that You are no longer governed by the
policy and not subject to any trading blackouts or other
restrictions.
2. Release
Consideration.
(a) In
exchange for Your promises and obligations in the Severance and
Release Agreements, including the release of claims and covenant
not to xxx set forth in this Release, and provided that You sign
and do not revoke this Release, You comply with the terms and
conditions of this Release, and this Release becomes effective, the
Company will pay You the amounts, and will provide You the
benefits, due to You under the Severance Benefits Agreement
(“Release
Consideration”).
-13-
(b) 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 in the Severance Benefits Agreement)
and, if no time is specified, within 5 business days after this
Release becomes effective.
(c) All
payments made pursuant to the Severance and Release Agreements will
be subject to withholding of applicable federal, state and local
payroll deductions and withholdings. Notwithstanding the foregoing,
You are solely responsible and liable for the satisfaction of any
federal, state, or local taxes that may arise with respect to the
Severance and Release Agreements. Neither the Company nor any of
its employees, directors, or service providers shall have any
obligation whatsoever to pay any such taxes or interest, to prevent
You from incurring them, or to mitigate or protect You from any
such tax or interest liabilities.
(d) In
addition to the payments and benefits under the Severance and
Release Agreements, upon termination of Your employment with the
Company, You shall receive any payments required by applicable law
(including payments with respect to accrued and unused vacation
time). Payments required under this Section 2(d) are not
conditioned upon You signing this Release or upon this Release
becoming effective and shall be made within the time period(s)
required by applicable law.
(e) Other
than the Release Consideration, You shall not be entitled to any
additional payments or benefits from the Company resulting from a
termination of Your employment with the Company or under any
Company incentive compensation, commission or other plan or
arrangement.
(f) To
the extent you may have stock options to acquire common stock of
the Company that are vested as of the Employment Termination Date,
the effect of the termination of Your employment with the Company
on your rights to exercise such stock options and on their
termination, expiration or forfeiture shall be governed by the
applicable plan and award agreements under which such stock options
were granted.
3. Acknowledgement
of Receipt of Amounts Due. You acknowledge and agree that
You have received all payments, benefits or other compensation owed
to You as a result of Your employment with the Company or Your
separation from employment with the Company, and that the Company
does not owe You any additional, payments, benefits or other
compensation, including, but not limited to, wages, commissions,
bonuses, incentive compensation, 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.
-14-
5. Confidentiality
and Non-Disclosure.
(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, sales commission
and compensation plans and other confidential matters, except as
necessary for compliance purposes and as required by applicable
law, rule, regulation, legal process or order, including when
required or requested pursuant to a court order, subpoena, or
written request from an administrative agency or a legislature.
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 October 22, 2018
(“Confidentiality
Agreement”), which shall survive and remain binding on
You after the Employment Termination Date.
(b)
Unless required by applicable law, rule, regulation, legal process
or order or to enforce this Agreement, or to the extent the Company
has previously publicly disclosed the Severance Benefits Agreement,
this Release, or their underlying terms or conditions, Employee
shall not disclose the existence of the Severance and Release
Agreements or their underlying terms or conditions to any third
party, including without limitation, any former, present or future
employee of the Company, other than to members of Your immediate
family who have a need to know such matters or to Your tax or legal
advisors who have a need to know such matters. If You do disclose
this Release, the Severance Benefits Agreement or any of their
respective terms or conditions to any of Your immediate family or
tax or legal advisors, then You will inform them that they also
must keep the existence of this Release, the Severance Benefits
Agreement and their respective terms and conditions confidential.
The Company may disclose the existence or terms and conditions of
this Release, the Severance Benefits Agreement and their respective
terms and conditions and may file this Release and the Severance
Benefits Agreement as exhibits to its public filings.
(c) In
addition to Your obligations and restrictions under Section 5(a)
above, You hereby agree that You may not, at any time, use the
Company’s trade secrets to (i) solicit business from any
source, including the Company’s customers or clients; or (ii)
solicit any employee of the Company to leave Company’s employ
or induce a consultant to sever the consultant’s relationship
with Company. You represent and warrant that You have not engaged
in any of the foregoing activities prior to the Release Signature
Date. 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 Release Signature Date.
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 publicly or privately to any third party, including without
limitation (i) to any current or former employee, officer,
director, contractor, supplier, customer, or client of the Company;
(ii) any prospective or actual purchaser of the equity interests of
the Company or its business or assets; or (iii) to any person or
entity in the automotive industry, automotive marketing,
advertising or other services, or the automotive press.
Notwithstanding the foregoing provisions of this Section 6, the
foregoing provisions shall not be deemed to prevent or restrict You
from disclosing factual information to the extent any such
provisions are prohibited by applicable law with respect to any
such disclosure of factual information.
-15-
7. Unconditional
General Release of Claims.
(a)
In consideration for the Release Consideration, You fully, finally
and unconditionally waive, 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 collectively 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, and regardless of whether
the knowledge thereof would have materially affected Your agreement
to release the Company hereunder, based on any act, omission,
event, occurrence, or nonoccurrence from the beginning of time to
the Release Signature Date, 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.
(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 Release), wages, penalties, premiums, severance
pay, vacation pay or any benefits, including 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 of 1967 (“ADEA”), the Older Worker Benefits
Protection Act, the Americans With Disabilities Act of 1990,
Sections 1981 through 1988 of Title 42 of the United States Code,
the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, The Employee Retirement Income Security Act of
1974 ("ERISA"), The
Immigration Reform and Control Act, The Fair Credit Reporting Act,
The Equal Pay Act, The Genetic Information Nondiscrimination Act of
2008, The Families First Coronavirus Response Act, The Coronavirus
Aid, Relief, and Economic Security Act, The Florida Civil Rights
Act – Fla. Stat. § 760.01, et seq., Florida’s Private-Sector
Whistle-blower’s Act – Fla. Stat. § 448.101,
et seq., Florida’s
Statutory Provision Regarding Retaliation/Discrimination for Filing
a Workers Compensation Claim – Fla. Stat. § 440.205,
Florida’s Statutory Provision Regarding Wage Rate
Discrimination Based on Sex – Fla. Stat. § 448.07, The
Florida Equal Pay Act – Fla. Stat. § 725.07, The Florida
Omnibus AIDS Act – Fla. Stat. § 760.50, Florida’s
Statutory Provisions Regarding Employment Discrimination on the
Basis of and Mandatory Screening or Testing for Sickle-Cell Trait
– Fla. Stat. §§ 448.075, 448.076, Florida’s
Wage Payment Laws, Fla. Stat. §§ 448.01, 448.08,
Florida’s Domestic Violence Leave Act – Fla. Stat.
§741.313, Florida’s Preservation & Protection of
Right to Keep & Bear Arms in Motor Vehicles Act – Fla.
Stat. §790.251, Florida’s Statutory Provision Regarding
Termination of Employees who Testify in Judicial Proceedings
– Fla. Stat. § 92.57, Florida’s General Labor
Regulations, Fla. Stat. ch. 448; any other federal, state or local
law, rule, regulation, or ordinance, any public policy, contract,
tort, or common law, or any basis for recovering costs, fees, or
other expenses including attorneys' fees incurred in these matters;
(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
common law or statutory torts, and any claims for costs, fees, or
other expenses, including attorneys’ fees; (v) any agreement,
understanding or inducement, oral or written, express or implied,
between You and any of the Releasees, including any employment
agreement; and (vi) any other aspect of your employment or the
termination of your employment, including any impairment of Your
ability to obtain subsequent employment.
-16-
(c) If
any claim is not subject to release, to the extent permitted by
law, You waive any right or ability to be a class or collective
action representative or to otherwise participate in any putative
or certified class, collective or multi-party action or proceeding
based on such a claim in which the Company or any other Releasee
identified in this Agreement is a party.
(d) This
Release will not waive any rights You may have 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 the Release Signature Date, including claims to enforce this
Release.
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, administrative agency, arbitration or other alternative
dispute resolution complaint, claim, or lawsuit, or any complaint
or claim with the Company’s internal complaint process,
involving any claims You have released in this Release, and You
agree to withdraw any such complaints, claims or lawsuits You have
filed, or were filed on your behalf, prior to the Release Signature
Date. You agree if You breach this covenant, then You must pay the
legal expenses incurred by any Releasee in defending against your
claim, complaint or lawsuit, including reasonable attorneys’
fees, or, at the Company’s option, return everything paid to
You under this Release. In that event, the Company shall be excused
from making any further payments or continuing any other benefits
otherwise owed to You under Section 2 of this Release. 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. Notwithstanding the foregoing
provisions of this Section 10, to the extent any of the foregoing
provisions of this Section 10 are void or unenforceable under
applicable law, such provisions shall be deemed stricken from this
Release and not enforceable.
-17-
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
Florida 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 Release are
for convenience only and shall not control the meaning, effect, or
construction of this Release. Time periods used in this Release
shall mean calendar periods unless otherwise expressly
indicated.
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. Protected
Rights.
(a) An
individual may not be held criminally or civilly liable under any
federal or state trade secret law for the disclosure of a trade
secret that: (i) is made (1) in confidence to a federal,
state, or local government official, either directly or indirectly,
or to an attorney; and (2) solely for the purpose of reporting
or investigating a suspected violation of law; or (ii) is made
in a complaint or other document that is filed under seal in a
lawsuit or other proceeding. Further, an individual who files a
lawsuit for retaliation by an employer for reporting a suspected
violation of law may disclose the employer's trade secrets to the
attorney and use the trade secret information in the court
proceeding if the individual: (i) files any document
containing the trade secret under seal; and (ii) does not
disclose the trade secret, except pursuant to court
order.
(b) You
understand that this general release does not apply to those rights
that as a matter of law cannot be waived. You further understand
that nothing contained in this Agreement or in the Confidentiality
Agreement limits Your ability to do any of the following: (i) file
a claim for unemployment or workers' compensation insurance; (ii)
file a charge or complaint with the U.S. Equal Employment
Opportunity Commission, the National Labor Relations Board, the
Occupational Safety and Health Administration, the Securities and
Exchange Commission, or any other federal, state or local
governmental agency or commission (“Government Agencies”); (iii)
communicate with any Government Agencies or otherwise participate
in any investigation or proceeding that may be conducted by any
Government Agency, including providing documents or other
information, without notice to the Company; (iv) testify in an
administrative, legislative, or judicial proceeding concerning
alleged criminal conduct or sexual harassment on the part of the
Company or any agent or employee of the Company when You are
required or requested to attend the proceeding pursuant to a court
order, subpoena, or written request from an administrative agency
or a legislature; and (vii) receive an award for information
provided to any Government Agencies, provided, however, You agree that if
any claim is prosecuted in Your name before any court or
administrative agency, You waive and agree not to take any damages
from such suit.
-18-
17. Entire
Agreement. You hereby acknowledge that no promise or
inducement has been offered to You, except as expressly stated in
the Severance and Release Agreements, and You are relying upon
none. The Severance and Release Agreements 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. Exhibits, appendices, and schedules
referred to herein and attached hereto, if any, are incorporated by
reference into this Release and form a part hereof.
18. Arbitration.
Any controversy or claim arising out or, or related to, this
Release Agreement, or the breach thereof, shall be governed by the
terms of the Arbitration Agreement (as defined in the Severance
Benefits Agreement).
19. Period
for Review and Consideration/Revocation Rights.
[Alternative
1 for Section 19 regardless of Employee’s age at time of
separation from employment and separation from employment is NOT in
connection with a group separation]
(a) This
Release has been delivered to You by the Company on the Employment
Termination Date (also referred to herein as the
“Release Delivery
Date”). So that You can review this Release as You
deem appropriate, and in accordance with the Older Worker Benefits
Protection Act, You acknowledge that You have the right to seek
legal counsel and are advised by the Company to seek such counsel,
before entering into this Release. You have been advised that this
Release does not waive or release any rights or claims arising
after You sign this Release. You further understand that You have
twenty-one (21) days after the Release Delivery Date
(“Release Review
Period”) to decide whether to sign this Release,
although You may sign this Release prior to the expiration of the
Release Review Period if you so desire. Should You decide to sign
this Release prior to the expiration of the Release Review Period,
the date you sign this Release is referred to herein as the
“Release Signature
Date.” If You do not sign this Release prior to the
expiration of the Release Review Period, this Release shall not be
effective or enforceable as to any rights You may have under this
Release. In the event that You do not sign this Release prior to
the expiration of the Release Review Period, You will not be
entitled to the Release Consideration.
(b) If
You do sign this Release prior to the expiration of the Release
Review Period, You also understand that You will have an additional
seven (7) days after the Release Signature Date You sign this
Release 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, AutoWeb, Inc.,6410 Xxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, on or before the seventh (7th)
day after the Release Signature Date (or on the next business day
if the seventh day is not a business day). You understand that this
Release will not become effective or enforceable until after this
seven (7) day revocation period has passed (the day after the
expiration of this seven (7) day revocation period being referred
to herein as the “Release
Effective Date”). If You revoke this Release prior to
the expiration of the seven (7) day revocation period, 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 Release Consideration.
-19-
[Alternative
2 for Section 19 if Employee is age 40 or over at time of
separation from employment and separation from employment IS in
connection with a group termination]
(a) This
Release has been delivered to You by the Company on the Employment
Termination Date (also referred to herein as the
“Release Delivery
Date”). So that You can review this Release as You
deem appropriate, and in accordance with the Older Worker Benefits
Protection Act, You acknowledge that You have the right to seek
legal counsel and are advised by the Company to seek such counsel,
before entering into this Release. You have been advised that this
Release does not waive or release any rights or claims arising
after You sign this Release. You further understand that You have
forty-five (45) days after the Release Delivery Date
(“Release Review
Period”) to decide whether to sign this Release,
although You may sign this Release prior to the expiration of the
Release Review Period if you so desire. Should You decide to sign
this Release prior to the expiration of the Release Review Period,
the date you sign this Release is referred to herein as the
“Release Signature
Date.” If You do not sign this Release prior to the
expiration of the Release Review Period, this Release shall not be
effective or enforceable as to any rights You may have under this
Release. In the event that You do not sign this Release prior to
the expiration of the Release Review Period, You will not be
entitled to the Release Consideration.
(b) If
You do sign this Release prior to the expiration of the Release
Review Period, You also understand that You will have an additional
seven (7) days after the Release Signature Date You sign this
Release 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, AutoWeb, Inc., 0000 Xxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000, on or before the
seventh (7th) day after the Release Signature Date (or on the next
business day if the seventh day is not a business day). You
understand that this Release will not become effective or
enforceable until after this seven (7) day revocation period has
passed (the day after the expiration of this seven (7) day
revocation period being referred to herein as the
“Release Effective
Date”). If You revoke this Release prior to the
expiration of the seven (7) day revocation period, 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 Release Consideration.
(c)
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.
20. Advice
of Attorney and Tax Advisor. You acknowledge that: (i) the
Company has advised You to consult with an attorney and/or tax
advisor of Your choosing (and at Your own cost and expense) before
executing this Release, and (ii) You are not relying upon the
Company for, and the Company has not provided, legal or tax advice
to You in connection with this Release. It is Your responsibility
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.
You acknowledge that You have had a reasonable opportunity to seek
and consider advice from Your attorney and tax
advisors.
PLEASE READ THIS RELEASE 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 YOU.
|
|
AutoWeb Inc.
By:
___________________________
(Officer
Name)
(Title)
EMPLOYEE
______________________________
Xxxx X.
Xxxxxx
|
-20-
[If Applicable Under Section 19(c), Add Appendix A-Group
Termination Information]
-21-
