SEPARATION AND RELEASE AGREEMENT
Exhibit
10.37
It is
hereby agreed by and between you, Xxxxxxx X. Xxxxx (for yourself,
your spouse, family, agents and attorneys) (jointly,
“You” or
“Employee”), and
AutoWeb,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 April 12, 2018 (“Employment Termination Date”), and
that You will perform no further duties, functions or services for
the Company subsequent to the Employment Termination Date except
for such transition services that you may provide as an independent
contractor pursuant to a consulting services agreement that may be
entered into by the Company and You. 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 Second Amended and
Restated Agreement dated effective as of April 3, 2014 as amended
by and between the Company and Employee (collectively, the
“Employment
Agreement”).
2. Release
Consideration. In exchange for your promises and obligations
in this Release and the Employment 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 Employment 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 Employment 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 Employment 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 December 12, 2008 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 Employment 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 Employment 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 Employment Agreement and their respective terms
confidential. The Company may disclose the existence or terms of
this Release, the Employment Agreement and their respective terms
and may file this Release and the Employment Agreement as exhibits
to its public filings if it is required to do 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 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.
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.
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(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.
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.
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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.
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: (a) is
made (i) in confidence to a federal, state, or local government
official, either directly or indirectly, or to an attorney; and
(ii) solely for the purpose of reporting or investigating a
suspected violation of law; or (b) 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:
(a) files any document containing the trade secret under seal; and
(b) does not disclose the trade secret, except pursuant to court
order.
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(b) You understand that
nothing contained in this Agreement or in the Confidentiality
Agreement limits your ability to 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”). You further understand that this
Agreement does not limit your ability to 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. This Agreement does not limit your right to
receive an award for information provided to any Government
Agencies.
17. 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 Employment Agreement, and You are relying
upon none. This Release and the Employment 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.
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 Employment
Agreement).
19. Period
for Review and Consideration/Revocation Rights. 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, AutoWeb, 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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20. 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: April 13,
2018 |
/s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X.
Xxxxx
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Dated: April 30,
2018
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By: /s/
Xxxxx X.
Xxxxxx
Xxxxx
X. Xxxxxx
EVP,
Chief Legal and Administrative Officer
and
Secretary
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