EXHIBIT 10.4
CONSULTING SERVICES AGREEMENT
This Consulting Services Agreement ("Agreement") is entered into this 1st day of
March 2002, between Autobytel Inc., a Delaware corporation ("Company"), and
Xxxxxxx Xxxxx (hereinafter referred to as "Coats" or "Consultant") and is based
on the facts as hereafter set forth. Consultant and Company are sometimes
collectively referred to herein as the "Parties".
RECITALS
WHEREAS: Coats is currently a director of the Company and the Company
desires to retain Coats as a consultant to the Company for business
development consulting services.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally
bound hereby, the Parties agree as follows:
ARTICLE 1
TERM OF ENGAGEMENT
The Company hereby engages Coats as Consultant to the Company and Coats
hereby accepts such consultancy by the Company on a month to month basis
not exceeding one year (the "Term") commencing from the date of this
Agreement, unless extended by mutual agreement or sooner terminated as
provided herein.
ARTICLE 2
DUTIES AND OBLIGATIONS
During the Term of this Agreement, Coats shall make himself reasonably
available to the executive officers of the Company during the Term for
consultation and other activities related to business development. Coats
shall not be required to devote his entire time, attention and energies
to the business of the Company and shall not be required to maintain any
set hours. In performing his duties hereunder, Coats shall act in
accordance with the policies of the Company as determined from time to
time by the Company's Board of Directors.
ARTICLE 3
COMPENSATION
3.1 As compensation for the services to be rendered by Coats pursuant
to this Agreement, the Company hereby agrees to pay Coats Six
Thousand Two Hundred Fifty Dollars ($6,250) per month during the
Term.
3.2 The Company shall have the right to deduct or withhold from the
compensation due to Coats hereunder any and all sums required for
federal income or social security taxes and all state or local
taxes now applicable or that may be enacted and become applicable
during the Term.
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ARTICLE 4
BUSINESS EXPENSES
4.1 Coats shall pay for all business expenses incurred by him during
the Term in performance of his obligations hereunder, including,
without limitation, travel, meals, telephone and mail. If Coats'
business expenses incurred in connection with services rendered
hereunder exceed $25,000 annually, then upon mutual agreement of
the Company and Coats, the Company may reimburse Coats for
reasonable business expenses in excess of such $25,000 amount per
submission of receipts for such reimbursable business expenses.
ARTICLE 5
TERMINATION OF CONSULTANCY
5.1 Termination for Cause. The Company may, during the Term,
terminate this Agreement and discharge Coats for cause, whereupon
the respective rights and obligations of the parties hereunder
shall terminate (other than Coats' obligations and the Company's
rights with respect thereto under Article 6); provided, however,
that the Company shall promptly pay Coats any amount due and
owing pursuant to Article 3, prorated to the date of termination.
As used herein, the term "for cause" shall refer to the
termination of Coats' consultancy as a result of any one or more
of the following:
5.1.1 Any conviction of Coats for a felony or a crime involving
moral turpitude, in which event Coats agrees to release
the Company from all further obligations under this
Agreement.
5.1.2 Coats engages in willful misconduct in the performance of
his duties hereunder; or
5.1.3 Coats shall fail or refuse to perform in any material
respect any of his duties or responsibilities as required
under this Agreement; provided that termination pursuant
to this paragraph 5.1.3 shall not constitute a valid
termination for cause unless Coats shall first have
received written notice from the Board of Directors
stating with specificity the nature of such failure or
refusal and affording Coats at least fifteen (15) days to
correct the act or omission complained of.
5.2 Termination Without Cause. Anything in this Agreement to the
contrary notwithstanding, the Company shall have the right, at
any time in its sole and subjective discretion, to terminate this
Agreement without cause upon not less than thirty (30) days prior
written notice to Coats. The term "termination without
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cause" shall mean the termination of Coats' consultancy for any
reason other than those expressly set forth in Section 5.1, or no
reason at all.
5.3 Termination By Coats. Anything in this Agreement to the contrary
notwithstanding, Coats shall have the right, at any time in his
sole and subjective discretion, to terminate this Agreement
without cause upon not less than thirty (30) days prior written
notice to the Company. In the event Coats terminates this
Agreement pursuant to this section, all fees shall cease as of
the effective date of such termination.
ARTICLE 6
RESTRICTIVE COVENANTS
6.1 Confidentiality. Coats agrees that, without the Company's prior
written consent, he will not use or disclose to any person, firm,
association, partnership, entity or corporation, any information
concerning: (a) the business operations or internal structure of
the Company; (b) the customers of the Company; (c) the financial
condition of the Company; and (d) other confidential information
pertaining to the Company, including without limitation, trade
secrets, technical data, marketing analyses and studies,
operating procedures, customer and/or inventor lists, or the
existence or nature of any of the Company's agreements; provided,
however, that Coats shall be entitled to disclose such
information: (a) to the extent the same shall have otherwise
become publicly available (unless made publicly available by
Coats or as a result of the breach by Coats of his obligations
hereunder); or (b) during the course of or in connection with any
litigation, arbitration, or other proceeding based upon or in
connection with the subject matter of this Agreement.
ARTICLE 7
GENERAL PROVISIONS
7.1 The Company shall, to the fullest extent permitted by law, defend
and indemnify Coats and hold Coats harmless from and against any
obligation, liability, claim, action, loss, cost, or expense,
including, but not limited to, reasonable attorneys' fees and
court costs (1) arising or alleged to arise from Company
obligations or liabilities, (2) made or asserted against Coats
individually by virtue of his having been a consultant, officer,
director, or agent of the Company, or (3) arising or alleged to
arise from conduct by Coats within the scope of Coats' duties as
consultant to the Company. Notwithstanding the foregoing, the
Company shall in no event be obligated to indemnify Coats against
liability arising from Coats' gross negligence, intentional,
wrongful conduct or acts.
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7.2 This Agreement is intended to be the final, complete and
exclusive agreement between the parties relating to the services
of Consultant to the Company and all prior or contemporaneous
understandings, representations and statements, oral or written,
relating to the same subject matter are merged herein. No waiver,
amendment, discharge or change of this Agreement shall be valid
unless the same is in writing and signed by the party against
which the enforcement thereof is or may be sought.
7.3 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.
7.4 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 sought.
7.5 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.
7.6 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 facsimile transmission,
e-mail or sent prepaid by registered or certified mail with
return receipt requested and shall be deemed given (i) if
personally served, when delivered to the person to whom such
notice is addressed, (ii) if given by facsimile transmission,
when a confirmation of answer is received, (iii) if given by
e-mail, when it is sent if non-delivery response is not received
within an hour of sending the e-mail or (iv) if given by mail,
two (2) business days following deposit in the United states
mail. Any notice given by telegram, telex or cable shall be
confirmed in writing within forty-eight (48) hours after being
sent. Such notices shall be addressed to the party to whom such
notice is to be given at the party's address set forth below or
as such party shall otherwise direct.
If to the Company: Autobytel Inc.
00000 XxxXxxxxx Xxxx., Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: General Counsel
Facsimile: (000) 000-0000
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If to Consultant: Xxxxxxx Xxxxx
000 X. 00xx Xxxxxx, Xxx 0X
Xxx Xxxx, XX 00000
Facsimile: 212.388.9818
e-mail: xxxxxx@xxxxxxxxxxxxxxxxxx.xxx
7.7 The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the
parties hereto.
7.8 This Agreement shall be construed and enforced in accordance with
the laws of the State of California without giving effect to the
principles of conflicts of laws.
7.9 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.
7.10 The provisions of this Agreement are agreed to be severable, and
if any provision, or application hereof, is held invalid or
unenforceable, then such holding shall not effect any other
provision or application.
7.11 As used herein, and as the circumstances require, the plural term
shall include the singular, the singular shall include the
plural, the neuter term shall include the masculine and feminine
genders, and the feminine term shall include the neuter and the
masculine genders.
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7.12 Coats acknowledges that he has consulted with or has had the
opportunity to consult with independent counsel of his own choice
concerning this Agreement and has been advised to do so by the
Company and that he has read and understands this Agreement, is
fully aware of its legal effect and has entered into it freely
based on his own judgment.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY
Autobytel Inc.
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
CONSULTANT
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
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