EXHIBIT 10.18
SEPARATION AGREEMENT
This Agreement is made as of December 14, 2001 (the "Effective
Date"), by and between Xxxx X. Xxxxxxx (the "Executive") and Autobytel Inc. (the
"Company").
WHEREAS, the Executive has been employed by the Company or its
predecessor companies or its or their subsidiaries or affiliates as its
President and Chief Executive Officer, pursuant to an employment agreement by
and between the Company and the Executive, dated July 1, 1998 and amended July
31, 1998 (the "Employment Agreement");
WHEREAS, the Executive resigned from his position as President and
Chief Executive Officer of the Company, a member of the Board of Directors of
the Company (the "Board"), and from all other positions with the Company and its
subsidiaries or affiliates effective December 5, 2001 (the "Resignation Date");
and
WHEREAS, the Executive and the Company desire to set forth the terms
of the Executive's separation from the Company.
NOW THEREFORE, the parties hereto, intending to be legally bound, do
hereby agree as follows:
1. Payments and Benefits to the Executive.
a) Cash Payments. Subject to and conditioned upon the performance by the
Executive of his obligations set forth in this Agreement, the Company
agrees to pay the Executive an amount equal to $1,000,000, of which
$666,667 shall be paid to the Executive on the Revocation Date (as
defined in Section 14 hereof) and $333,333 shall be paid on the six
month anniversary of the Effective Date.
b) Stock Options.
(i) On the Effective Date, (A) 1,472 of the 2,943 options granted to
the Executive pursuant to the option agreement dated as of
December 12, 1997 between the Company and the Executive, (B)
8,468 of the 16,935 options granted to the Executive pursuant to
the option agreement dated as of June 21, 1998 between the
Company and the Executive, (C) 100,000 of the 200,000 options
granted to the Executive pursuant to Section 1 of Schedule A to
the Employment Agreement, (D) the 500,000 options granted to the
Executive pursuant to Section 2 of Schedule A to the Employment
Agreement and (E) 68,457 of the 136,914 options granted to the
Executive pursuant to the
option agreement(s) dated as of February 15, 1999 between the
Company and the Executive (collectively, the "Disposed Options")
shall terminate and be of no further force or effect,
notwithstanding anything to the contrary set forth in the
agreements pursuant to which such options were granted.
(ii) On the Effective Date, (A) the 333,333 options granted to the
Executive pursuant to the option agreement dated as of October
23, 1996 between the Company and the Executive, (B) 1,471 of the
2,943 options granted to the Executive pursuant to the option
agreement dated as of December 12, 1997 between the Company and
the Executive, (C) 8,467 of the 16,935 options granted to the
Executive pursuant to the option agreement dated as of June 21,
1998 between the Company and the Executive, (D) 100,000 of the
200,000 options granted to the Executive pursuant to Section 1
of Schedule A to the Employment Agreement, (E) 68,457 of the
136,914 options granted to the Executive pursuant to the option
agreement dated as of February 15, 1999 between the Company and
the Executive and (F) the 331,792 options granted to the
Executive pursuant to the option agreement(s) dated as of
February April 12, 2000 between the Company and
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the Executive (collectively, the "Continuing Options") shall
become vested and exercisable as of the Effective Date and shall
remain exercisable by the Executive until the third anniversary
of the Effective Date, notwithstanding anything to the contrary
set forth in the agreements pursuant to which such options were
granted. Except as specifically set forth in this Section
1(b)(ii), the Continuing Options shall continue to be governed
by and subject to the terms of the applicable stock option plans
and option agreements pursuant to which such options were
granted.
(iii) The parties acknowledge and agree that the Disposed Options and
the Continuing Options comprise all of the options to acquire
shares of common stock of the Company held by the Executive as
of the date hereof.
c) Health and Welfare Benefits. The Company shall continue to provide the
Executive with health and welfare benefits no less favorable than
those provided to him as of the Resignation Date, until the earlier of
the second anniversary of Effective Date and the Executive obtaining
employment providing substantially comparable benefits (determined on
a benefit-by-benefit basis); provided, however that, notwithstanding
anything in Section 17 below to the contrary, any
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such benefit shall be offset by any amount received by the Executive
under any plan or arrangement of a subsequent employer providing a
similar type of benefit.
d) Other Benefits and Perquisites. During the two year period immediately
following the Effective Date, (i) the Company shall reimburse the
Executive for the cost of internet connectivity through America Online
or a DSL connection, (ii) the Company shall continue to reimburse the
Executive for the cost of his health club membership (at a level no
greater than that provided by the Company immediately prior to the
Effective Date) and (iii) the Company shall continue to pay the
Executive an automobile allowance equal to the automobile allowance in
effect as of the Resignation Date. In addition, the Executive shall be
entitled to retain one Compaq desktop computer and monitor and the
printer previously provided to him by the Company. As soon as
practicable following the Revocation Date, the Executive shall return
to the Company all other computer equipment belonging to the Company,
including, but not limited to, the Toshiba laptop computer and docking
station and the router and switchbox.
e) Other. In addition to the foregoing,
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(i) the Executive acknowledges that he has received all salary
payments, as well as accrued but unused vacation and all other
amounts due him, through the Resignation Date and that no
further salary or other compensation for services rendered is
due to him; and
(ii) the Executive acknowledges that the Company shall deduct all
applicable withholding taxes from the amounts to be paid to the
Executive under this Agreement.
2. Confidential Information. The Executive acknowledges that the Company's
and its subsidiaries' and affiliates' trade secrets, information
concerning products and services and their development, technical
information, marketing and sales activities and procedures, promotion and
pricing techniques and credit and financial data concerning the Company,
its subsidiaries and affiliates and their customers (the "Proprietary
Information") are valuable, special and unique assets of the Company and
its subsidiaries and affiliates, access to and knowledge of which have
been gained by virtue of the Executive's position and involvement with the
Company and its subsidiaries and affiliates. Proprietary Information shall
not include information which is or becomes generally available to the
public other than as a result of unauthorized disclosure by the Executive.
The Executive agrees that he will not disclose any of such Proprietary
Information to any person or
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other entity for any reason or purpose whatsoever, and that the Executive
will not make use of any Proprietary Information for the benefit of any
person or other entity other than the Company and its subsidiaries and
affiliates, except to the extent disclosure is or may be required by a
statute, by a court of law, by any governmental agency having supervisory
authority over the business of the Company or by any administrative or
legislative body (including a committee thereof) with jurisdiction to
order him to divulge, disclose or make accessible such information,
provided, however, that the Executive shall give the Company notice of any
such request or demand for such information upon his receipt of same and
the Executive shall reasonably cooperate with the Company in any
application the Company may make seeking a protective order barring
disclosure by the Executive.
3. Restrictive Covenants. The Company is engaged in the business of
independent online automotive marketing services and information (the
"Business") throughout the world. The Executive represents, warrants,
acknowledges and agrees that (i) the market for the Business is extremely
competitive and extends throughout the world and the Executive, through
the Company, is among the limited number of people engaged in the
Business; (ii) the Disposed Options are of significant economic value to
the Company and the Executive; (iii) the restrictive covenants and other
agreements contained herein are an essential part of this Agreement; (iv)
the Executive
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has been fully advised by, or has had the opportunity to be advised by, an
attorney in connection with the negotiation, preparation, execution and
delivery of this Agreement and the transactions contemplated by this
Agreement; and (v) no reasonable person would engage in any of the
transactions contemplated by this Agreement without the benefit of the
restrictive covenants and the other agreements contained herein by the
Executive. Accordingly, the Executive agrees to be bound by the
restrictive covenants and the other agreements contained in this Agreement
to the maximum extent permitted by law, it being the intent and spirit of
the parties that the restrictive covenants and the other agreements
contained herein shall be valid and enforceable in all respects, and,
subject to the terms and conditions of this Agreement, mutually dependent
upon the obligations of the Company to pay the Executive the consideration
due the Executive under this Agreement.
a) Noncompetition. During the period commencing with the Revocation Date
(as defined in Section 14 hereof) and extending for one year
thereafter (the "Restricted Period"), the Executive shall not in any
city, town, county, parish or other municipality in any state of the
United States where the Company or any of its subsidiaries, successors
or assigns engages in the Business, directly or indirectly, (i) engage
in the Business for the Executive's own account; (ii) enter
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the employ of, or render any services to or for any entity that is
engaged in the Business; or (iii) become interested in any such entity
in any capacity, including as an individual, partner, shareholder,
officer, director, employee, principal, agent, trustee or consultant;
provided, however, the Executive may own, directly or indirectly,
solely as a passive investment, securities of any entity traded on any
national securities exchange or automated quotation system if the
Executive, individually or in the aggregate, is not a controlling
Person of, or a member of a group which controls, such entity and does
not, directly or indirectly, "beneficially own" (as defined in Rule
13d-3 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), without regard to the 60 day period referred to in
Rule 13d-3(d)(1)(i)) 2% or more of any class of securities of such
entity.
b) Noninterference. During the Restricted Period, the Executive shall
not, directly or indirectly, (i) hire, solicit, induce, or attempt to
solicit or induce any person known to the Executive to be an employee
of the Company or any of its subsidiaries, successors or assigns, that
is involved in the Business to terminate his or her employment or
other relationship with the Company, its subsidiaries, successors or
assigns for the purpose of associating with (A) any entity of which
the Executive is or becomes an officer, director, partner, executive,
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employee, principal, agent, or consultant or (B) any competitor of the
Company or its subsidiaries, successors or assigns in the Business, or
(ii) otherwise encourage any person to terminate his or her employment
or other relationship with the Company or any of its subsidiaries,
successors or assigns for any other purpose or no purpose.
4. Standstill Agreement. The Executive, on behalf of himself and his
affiliates (as such term is defined in Rule 12b-2 under the Exchange Act),
agrees that, for a period of 2 years from the Effective Date, he and his
affiliates shall not, and shall cause any person or entity controlled by
him or them not to: (i) in any manner acquire, agree to acquire or make
any proposal to acquire ownership directly nor indirectly (including, but
not limited to beneficial ownership as defined in Rule 13d-3 under the
Exchange Act) of any voting securities or other equity interests in, debt
securities, trade payables, or property of the Company or any rights or
options to acquire such ownership except for the Continuing Options; (ii)
solicit proxies or consents, directly or indirectly, or become a
"participant" in any "solicitation" (as such terms are defined in
Regulation 14A under the Exchange Act) of proxies or consents to vote, or
seek to advise or influence any person with respect to the voting of, any
voting securities of the Company; (iii) with respect to any voting
securities of the Company, (a) form, join or be part of any "group"
(within the
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meaning of Section 13(d)(3) of the Exchange Act); (iv) otherwise act,
alone or in concert with others, to seek to control or influence the
management or policies of the Company or the Board; or (v) advise, assist
or encourage any other person in connection with any of the foregoing.
5. Rights and Remedies Upon Breach by the Executive. If the Executive
breaches, or threatens to commit a breach of, any of the provisions of
this Agreement, the Company, and its subsidiaries, successors or assigns
shall have the following rights and remedies, each of which shall be
independent of the others and severally enforceable, and each of which
shall be in addition to, and not in lieu of, any other rights or remedies
available to the Company, or its subsidiaries, successors or assigns at
law or in equity under this Agreement, or otherwise:
a) Specific Performance. The right and remedy to have each and every one
of the covenants in this Agreement specifically enforced and the right
and remedy to obtain injunctive relief, it being agreed that any
breach or threatened breach of any of the restrictive covenants in
this Agreement would cause irreparable injury to the Company and its
subsidiaries, successors or assigns and that money damages would not
provide an adequate remedy to the Company and its subsidiaries,
successors or assigns.
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b) Accounting. The right to other appropriate equitable or monetary
relief.
c) Severability of Covenants. The Executive acknowledges and agrees that
the restrictive covenants in this Agreement are reasonable and valid
in geographic, temporal and subject matter scope and in all other
respects, and do not impose limitations greater than are necessary to
protect the goodwill, proprietary information, and other business
interests of the Company and its subsidiaries, successors or assigns.
If, however, any court of competent jurisdiction subsequently
determines that any of the restrictive covenants, or any part thereof,
is invalid or unenforceable, the remainder of the restrictive
covenants shall not thereby be affected and shall be given full effect
without regard to the invalid portions.
d) Blue-Penciling. If any court of competent jurisdiction determines that
any of the restrictive covenants, or any part thereof, is
unenforceable because of the duration or scope of such provision, such
court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such
provision shall then be enforceable to the maximum extent permitted by
applicable law.
e) Enforceability in All Jurisdictions. The Executive intends to and
hereby confers jurisdiction to enforce each and every one of the
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covenants in this Agreement upon the courts of any jurisdiction within
the geographic scope of such restrictive covenants. If the courts of
any one or more of such jurisdictions hold the restrictive covenants
unenforceable by reason of the breadth of such scope or otherwise, it
is the intention of the Executive that such determination shall not
bar or in any way affect the Company's, or any of its subsidiaries',
successors' or assigns' right to the relief provided above in the
courts of any other jurisdiction within the geographic scope of such
restrictive covenants, as to breaches of such restrictive covenants in
such other respective jurisdictions, such restrictive covenants as
they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
6. Cooperation. The Executive agrees to cooperate in the Company's handling
or resolution of any matter in which the Executive was involved in the
course of his employment, provided that such requests shall not be unduly
burdensome. By way of example only, such obligation of cooperation may
include furnishing information and assisting the Company in legal
proceedings. Promptly following submission of a written statement by the
Executive, the Company shall reimburse the Executive his reasonable
out-of-pocket costs and other reasonable expenses incurred in connection
with his
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cooperation pursuant to this Section 6, including but not limited to
reasonable attorney's fees.
7. Releases
a) Release by the Executive.
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(i) The Executive on behalf of himself and his agents, assignees,
attorneys, heirs and executors (the "Executive Releasors")
agrees to and does hereby forever release the Company, any
affiliated companies, and their past and present parents,
subsidiaries, and present and former employees, officers,
directors, shareholders, agents, successors and assigns of any
of them (but, as to any such individuals, only in connection
with or in relationship to their capacity as an employee,
officer, director, shareholder, agent, successor or assignee of
the Company, any affiliated companies, and their past and
present parents and subsidiaries, successors and assignees and
not in connection with or in relationship to their personal
capacity unrelated to a referenced corporate entity; such
individuals as described and such corporate entities
collectively, the "Company Releasees") from all claims, demands,
causes of action, controversies, agreements, promises and
remedies, of any type which the Executive may have as of the
date hereof, whether known or unknown, in connection with or in
relationship to the Executive's capacity as an employee, officer
or director of any of the Company Releasees, and the termination
of any such capacity, other than
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with respect to the rights expressly preserved herein (such
released claims are collectively referred to herein as the
"Released Executive Claims"). Without any limitation on the
foregoing, the Released Executive Claims shall include any
claims arising under the Age Discrimination in Employment Act
("ADEA"), Title VII of the Civil Rights Act, the Americans with
Disabilities Act, the California Fair Employment and Housing
Act, as amended, the California Labor Code and all other
federal, state and local laws.
(ii) In addition, the Executive, on behalf of himself and the
Executive Releasors expressly waives all rights afforded by
Section 1542 of the Civil Code of the State of California
("Section 1542") with respect to the Company Releasees. Section
1542 states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
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MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Notwithstanding the provisions of Section 1542, and for the
purpose of implementing a full and complete release, the
Executive understands and agrees that this Release is intended
to include and does include all claims, if any, which the
Executive may have and which the Executive does not now know or
suspect to exist in his favor against the Company Releasees, and
this Release extinguishes those claims.
(iii) Notwithstanding the foregoing, the Executive does not waive, and
"Released Executive Claims" shall not include, any rights to
which he may be entitled (A) to seek to enforce this Agreement
or (B) to obtain contribution as permitted by law in the event
of the entry of judgment against him as a result of any act or
failure to act for which both the Executive and the Company are
held to be jointly liable. The Executive shall have the right to
indemnification, to the fullest extent permitted under
applicable law, to the same extent as other senior executive
officers and directors of the Company or its subsidiaries or
affiliates are so entitled, in accordance with the
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provisions of the Company's by-laws, certificate of
incorporation or as otherwise provided under the laws of the
state of Delaware, whichever provides the Executive with the
broadest protections, and directors' and officers' liability
insurance policies to the same extent as other senior executive
officers and directors of the Company, and in the event such
indemnification or liability insurance policy rights are
subsequently enhanced, and relate to the period of time prior to
the Resignation Date the Executive shall be entitled to the
protection of such enhanced rights.
(iv) The Executive, on behalf of himself and the Executive Releasors,
promises never to file a lawsuit or arbitration asserting any
Released Executive Claims against the Company Releasees. If the
Executive files a lawsuit or arbitration against the Company
Releasees based on the Released Executive Claims, he agrees to
pay for all costs incurred by the Company Releasees, including
reasonable attorney's fees, in defending against such claim.
b) Release by the Company.
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(i) The Company, on behalf of itself and any affiliated companies
and their past and present parents and subsidiaries (the
"Company Releasors"), agree to forever release the Executive and
his family, estate, agents, attorneys, heirs, executors,
successors and assigns (the "Executive Releasees") from any and
all claims, demands, causes of action, controversies,
agreements, promises and remedies, in connection with or in
relationship to the Executive's capacity as an employee, officer
or director of any of the Company Releasors which they may have
as of the date hereof, whether known or unknown, including,
without limitation, any rights to pursue such dispute(s) against
the Executive Releasees (the "Released Company Claims") except
for any claims, demands, causes of action, controversies,
agreements, promises and remedies arising out of the Executive's
intentional disclosure of, or direction to disclose, material
non-public information and referred to in that certain letter
listed on Exhibit A hereto, if any.
(ii) The Company, on behalf of itself and the Company Releasors,
promises never to file a law suit or arbitration against the
Executive Releasees asserting any Released Company Claims.
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If the Company files a lawsuit or arbitration against the
Executive Releasees based on Released Company Claims, it will
pay for all costs incurred by the Executive Releasees, including
reasonable attorney's fees, in defending against such claims.
Notwithstanding the foregoing, the Company does not waive, and
"Released Company Claims" shall not include, any rights to which
the Company may be entitled to seek to enforce this Agreement.
8. Miscellaneous.
a) Mutual Nondisparagement. The Executive shall not make any public
statements, encourage others to make statements or release information
intended to disparage or defame the Company, its subsidiaries or
affiliates or their products or services or their officers, directors
or managers. The Company, on behalf of itself and its subsidiaries and
affiliates, shall not make any public statements, encourage others to
make statements or release information intended to disparage or defame
the Executive's reputation. Notwithstanding the foregoing, nothing in
this Section 8(a) shall prohibit any person from making truthful
statements when required by order of a court or other body having
jurisdiction.
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b) Resolution of Disputes. Any disputes or claims arising under or in
connection with this Agreement, including, without limitation, any
disputes arising under Sections 3 or 4 hereof, shall be resolved by
binding arbitration, to be held in Orange County, California, in
accordance with the Commercial Rules of the American Arbitration
Association before a panel of three (3) arbitrators, one appointed by
the Executive, one appointed by the Company, and the third appointed
by mutual agreement of the arbitrators selected by the Executive and
the Company. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. Each party shall
bear its own counsels' fees in arbitration or litigation, and shall
share equally the costs of arbitration; provided however the Company
shall pay and be solely responsible for any attorneys' fees and
expenses and court or arbitration costs incurred by the Executive as a
result of a claim that the Company has breached or otherwise failed to
perform this Agreement or any provision thereof to be performed by the
Company if the Executive prevails in the contest in whole or in
substantial part. Nothing herein shall prevent the Company from
seeking equitable relief in court as provided for in Section 5 hereof.
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c) General. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver
of any similar or dissimilar provisions or conditions at the same or
any prior or subsequent time. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject matter
hereof have been made by either party which are not set forth
expressly in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by
the laws of the State of Delaware without regard to its conflicts of
law principles. Except as otherwise expressly provided in this
Agreement, including without limitation the provisions of Section 2
hereof, and except for disclosure by the Company to its legal,
accounting and other advisors, it is the express intention of the
parties hereto that this Agreement and the provisions hereof be
treated as confidential and not disclosed in any public manner other
than disclosure (i) that is or may be required by a statute, by a
court of law, by any governmental agency having supervisory authority
over the business of the
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Company or by any administrative or legislative body (including a
committee thereof) with jurisdiction to order that such information be
divulged, disclosed or made accessible; provided, however, that the
Executive shall give the Company notice of any such request or demand
for such information upon his receipt of same and the Executive shall
reasonably cooperate with the Company in any application the Company
may make seeking a protective order barring disclosure by the
Executive; (ii) that is made to the Executive's legal counsel or
personal financial advisor and is reasonably necessary in connection
with the Executive's consideration of the terms of this Agreement or
the Executive's personal financial dealings, or (iii) that is made to
a member of the Executive's immediate family; provided, however, that
with respect to subsections (ii) and (iii) of this Section 8(c), any
person to whom the Executive discloses such information has agreed in
advance to maintain the confidentiality of such information consistent
with the terms of this Agreement.
d) Beneficiaries. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If the Executive shall die while any amount would still
be
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payable to the Executive hereunder (other than amounts which, by their
terms, terminate upon the death of the Executive) if the Executive had
continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to the
executors, personal representatives or administrators of the
Executive's estate.
9. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
remain in full force and effect.
10. Notices. Notices, demands and all other communications provided for in
this Agreement shall be in writing and shall be sent by messenger,
overnight courier, certified or registered mail, postage prepaid and
return receipt requested or by facsimile transmission to the parties at
their respective addresses and fax numbers set forth below or to such
other address or fax number as to which notice is given.
If to the Executive: Xxxx X. Xxxxxxx
0000 Xxxxx Xxxxx
Xxx Xxxxxxxx, XX 00000
If to the Company:
Autobytel Inc.
00000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
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Attention: General Counsel
Fax: (000) 000-0000
Notices, demands and other communications shall be deemed given
on delivery thereof or, in the case of facsimile transmission, upon
receipt of successful transmission from the transmitting facsimile
machine.
11. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
will constitute one and the same instrument.
12. Entire Agreement; Effect on Employment Agreement. This Agreement sets
forth the entire agreement of the parties hereto in respect of the subject
matter contained herein and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations (including that
certain letter from the Executive to the Company dated as of December 13,
2001) or warranties, whether oral or written, by either party or by any
officer, employee or representative of either party hereto. Without
limiting the generality of the foregoing, as of the Effective Date, the
Employment Agreement shall become null and void and of no further force,
except that Section 7 thereof shall remain in full force and effect until
the second anniversary of the Effective Date.
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13. Legal Fees. The Company shall reimburse the Executive for his legal fees
and expenses in the amount of $25,000 incurred in connection with the
preparation and negotiation of this Agreement.
14. Review and Revocation. The Executive acknowledges that the Company has
advised him to consult with an attorney of his choosing prior to signing
this Agreement. The Executive understands and agrees that he has the right
and has been given the opportunity to review this Agreement and,
specifically, the release in Section 7 hereof, with an attorney of his
choice. The Executive also understands and agrees that he has entered into
this Agreement freely and voluntarily. The Executive has twenty-one (21)
days to consider the release of his rights under ADEA, although he may
sign this Agreement sooner if he so desires. Furthermore, once the
Executive has signed this Agreement, he has seven (7) additional days from
the date he signs it to revoke his consent to the release of his rights
under ADEA. The Executive's release of his rights under ADEA will not
become effective until seven (7) days after the date he has signed this
Agreement (the day immediately following the expiration of such 7-day
period being referred to herein as the "Revocation Date") and the payments
and obligations of the Company set forth in this Agreement shall not
become due unless and until the period for such revocation has expired
with no such revocation by the Executive having occurred.
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15. No Admission of Wrongdoing. The Company's offer to the Executive of this
Agreement and the payments and benefits set forth herein is not intended
to, and shall not be construed as, an admission of liability by the
Company or of any improper conduct on the Company's part, all of which the
Company specifically denies.
16. Representations of the Company. The Company represents and warrants to the
Executive that the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been
duly and validly authorized on behalf of the Company and that all
corporate action required to be taken by the Company for the execution,
delivery and performance of this Agreement including, without limitation,
the performance of Section 1(b) hereof, has been or promptly will be duly
and effectively taken. The Company acknowledges that the Executive has
relied upon such representations and warranties in entering into this
Agreement.
17. No Mitigation or Offsets. The Executive shall not be required to seek
other employment or to reduce or otherwise mitigate any severance amount
or benefit payable to him under this Agreement and, except as expressly
provided in Section 1(c) above, no severance amount or benefit shall be
reduced on account of any compensation received by the Executive from
other employment. The Company's obligation to pay severance amounts and
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benefits under this Agreement shall not be reduced by any amount owed by
the Executive to the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date set forth above.
Autobytel Inc.
/s/ Xxxx X. Xxxxxxx By:/s/ Xxxxx Xxxx
------------------------------- ------------------------------
Xxxx X. Xxxxxxx Executive Vice President and General Counsel
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