Exhibit
10.1
|
|
Sara
Partin
Senior Vice President, Chief Human Resources
Officer
Direct Line: 949.862.3069
sara.partin@autoweb.com
|
|
AutoWeb, Inc.
18872 MacArthur Blvd., Suite 200
Irvine, CA 92612-1400
Phone: (949) 225-4500
www.autoweb.com
|
|
November
21, 2018
Joseph
P. Hannan
[Personal
Residence Address Redacted]
Re:
Offer of Employment
Dear
Mr. Hannan:
This
letter confirms the terms and conditions upon which AutoWeb, Inc.,
a Delaware corporation (“
Company
”) is offering employment
to you. Note that this offer of employment and your employment by
the Company is subject to and contingent upon (i) approval of the
terms of this offer and your appointment as an officer of the
Company by the Company’s board of directors and (ii) various
conditions and requirements that must be completed prior to
commencement of employment, which conditions and requirements are
set forth below.
1.
Employment
.
(a) Effective
as of the date you commence employment with the Company
(“
Commencement
Date
”), which date, subject to the satisfaction of the
items noted in the introductory paragraph of this letter, is
anticipated to be December 17, 2018
,
the Company will
employ you in the capacity set forth on the Exhibit A attached
hereto (“
Offer Letter
Schedule
”). In such capacity, you will report to such
person or persons as may be designated by the Company from time to
time.
(b) Your
employment is at will and not for a specified term and may be
terminated by the Company or you at any time, with or without cause
or good reason and with or without prior, advance notice. This
“at-will” employment status will remain in effect
throughout the term of your employment by the Company and cannot be
modified except by a written amendment to this offer letter that is
executed by both parties (which in the case of the Company, must be
executed by the Company’s Chief Human Resources Officer) and
that expressly negates the “at-will” employment
status.
2.
Compensation,
Benefits and Expenses
.
As compensation for the services to be
rendered by you pursuant to this agreement, you will receive the
payments and be entitled to participate in the benefits set forth
below, subject to the terms and conditions set forth below or in
such payment or benefit plans or arrangements. If at any time a
conflict between anything in this letter and the applicable benefit
plan arises, the terms of the benefit plan controls. Your
compensation and benefits shall be paid or made available in
accordance with the Company’s normal payroll and other
practices and policies of the Company.
(a) The
Company hereby agrees to pay you a base salary as set forth on the
Offer Letter Schedule.
Jospeh
P. Hannan
Offer
Letter
November
21, 2018
Page
2
(b) You
shall be eligible to participate in annual incentive compensation
plans, if any, that may be adopted by the Company from time to time
and that are afforded generally to persons employed by the Company
at your employment level and position, geographic location and
applicable department or operations within the Company (subject to
the terms and conditions of any such annual incentive compensation
plans). Should such an annual incentive compensation plan be
adopted for any annual period, your target annual incentive
compensation opportunity will be as established by the Company for
each annual period, which may be up to a percentage set forth on
the Offer Letter Schedule of your annualized rate (i.e., 24 X
Semi-monthly Rate) based on achievement of objectives specified by
the Company each annual incentive compensation period (which may
include Company-wide performance objectives; divisional, department
or operations performance objectives and/or individual performance
objectives, allocated between and among such performance objectives
as the Company may determine) and subject to adjustment by the
Company based on the Company’s evaluation and review of your
overall individual job performance in the sole discretion of the
Company. Specific annual incentive compensation plan details,
target incentive compensation opportunity and objectives for each
annual compensation plan period will be established each year.
Awards under annual incentive plans may be prorated by the Company
in its discretion for a variety of factors, including time employed
by the Company during the year, adjustments in base compensation or
target award percentage changes during the year, and unpaid time
off. You understand that the Company’s annual incentive
compensation plans, their structure and components, specific target
incentive compensation opportunities and objectives, the
achievement of objectives and the determination of actual awards
and payouts, if any, thereunder are subject to the sole discretion
of the Company. Awards, if any, under any annual incentive
compensation plan shall only be earned by you, and payable to you,
if you remain actively employed by the Company through the date on
which award payouts are made by the Company under the applicable
annual incentive compensation plan. You will not earn any such
award if your employment ends for any reason prior to that
date.
(c) You
shall be entitled to participate in such ordinary and customary
benefits plans afforded generally to persons employed by the
Company at your employment position and level and geographic
location (subject to the terms and conditions of such benefit
plans, your enrollment in the plans and making of any required
employee contributions required for your participation in such
benefits, your ability to qualify for and satisfy the requirements
of such benefits plans). Upon commencement of employment with the
Company, you will begin accruing vacation under the Company’s
vacation accrual policy at the rate set forth on the Offer Letter
Schedule. Accrual of vacation is subject to a limitation on accrual
as set forth in the Company’s vacation accrual
policy.
(d) You
are solely responsible for the payment of any tax liability that
may result from any compensation, payments or benefits that you
receive from the Company. The Company shall have the right to
deduct or withhold from the compensation due to you hereunder any
and all sums required by applicable federal, state, local or other
laws, rules or regulations, including, without limitation federal
and state income taxes, social security or FICA taxes, and state
unemployment taxes, now applicable or that may be enacted and
become applicable during your employment by the
Company.
(e) Upon
termination of your employment by either party, whether with or
without cause, you will be entitled to receive only that portion of
your compensation, benefits, reimbursable expenses and other
payments and benefits required by applicable law or by the
Company’s compensation or benefit plans, policies or
agreements in which you participate and pursuant to which you are
entitled to receive the compensation or benefits thereunder under
the circumstances of and at the time of such termination (subject
to and payable in accordance with the terms and conditions of such
plans, policies or agreements).
Jospeh
P. Hannan
Offer
Letter
November
21, 2018
Page
3
3.
Pre-Hire Conditions
and Requirements
.
This offer of employment and your employment by the Company is
contingent upon various conditions and requirements for new hires
that must be completed prior to commencement of employment. These
conditions and requirements include, among other things, the
following:
(i)
Completed
Application of Employment.
(ii)
A Consent to
Conduct a Background Check and the successful completion of the
Company’s background check.
(ii)
Consent to
Conduct a Background Check and the successful completion of the
Company’s background check.
Your acceptance,
execution and delivery of this offer letter.
(iii)
Your execution and
delivery of your acknowledgment and agreement to the
Company’s
Employee
Confidentiality Agreement and accompanying exhibits and schedules,
Mutual Agreement to Arbitrate, Employee Handbook and the various
policies included therein, Securities Trading Policy, and Code of
Conduct and Ethics.
(iv)
Your compliance
with all applicable federal and state laws, rules, regulation and
orders,
including (1) your
execution and delivery of an I-9 Employment Eligibility
Verification together with complying verification documents; and
(2) your execution and delivery of a W-4 Employee’s
Withholding Allowance Certificate. Upon your acceptance of this
offer letter, you will be provided instructions how to access
online, sign and return these documents.
The
documents referenced in Sections 3 (i) (ii), (iii) and (iv) above
are referred to herein as the “
Standard Employee
Documents
.”
4.
Amendments
and Waivers
. This agreement may be amended, modified,
superseded, or cancelled, and the terms and conditions hereof may
be waived, only by a written instrument signed by the parties
hereto or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any
right, power, or privilege hereunder will operate as a waiver
thereof, nor will any waiver on the part of any party of any right
hereunder, nor any single or partial exercise of any rights
hereunder, preclude any other or further exercise thereof or the
exercise of any other right hereunder.
5.
Notices
.
Any notice required or permitted under this agreement will be
considered to be effective in the case of (i) certified mail, when
sent postage prepaid and addressed to the party for whom it is
intended at its address of record, three (3) days after deposit in
the mail; (ii) by courier or messenger service, upon receipt by
recipient as indicated on the courier's receipt; or (iii) upon
receipt of an Electronic Transmission by the party that is the
intended recipient of the Electronic Transmission. The record
addresses, facsimile numbers of record, and electronic mail
addresses of record for you are set forth on the signature page to
this agreement and for the Company as set forth in the letterhead
above and may be changed from time to time by notice from the
changing party to the other party pursuant to the provisions of
this Section 5. For purposes of this Section 5, "
Electronic Transmission
” means a
communication (i) delivered by facsimile, telecommunication or
electronic mail when directed to the facsimile number of record or
electronic mail address of record, respectively, which the intended
recipient has provided to the other party for sending notices
pursuant to this Agreement and (ii) that creates a record of
delivery and receipt that is capable of retention, retrieval, and
review, and that may thereafter be rendered into clearly legible
tangible form.
Jospeh
P. Hannan
Offer
Letter
November
21, 2018
Page
4
6.
Choice
of Law
. This agreement, its construction and the
determination of any rights, duties or remedies of the parties
arising out of or relating to this agreement will be governed by,
enforced under and construed in accordance with the laws of the
State of California, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws of such
state.
7.
Severability
.
Each term, covenant, condition, or provision of this agreement will
be viewed as separate and distinct, and in the event that any such
term, covenant, condition or provision will be deemed to be invalid
or unenforceable, the arbitrator or court finding such invalidity
or unenforceability will modify or reform this agreement to give as
much effect as possible to the terms and provisions of this
agreement. Any term or provision which cannot be so modified or
reformed will be deleted and the remaining terms and provisions
will continue in full force and effect.
8.
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. 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.
9.
Entire
Agreement
. This Agreement, together with the Standard
Employee Documents, is intended to be the final, complete and
exclusive agreement between the parties relating to the employment
of you by the Company and all prior or contemporaneous
understandings, representations and statements, oral or written,
are merged herein. 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 which the enforcement
thereof is or may be sought.
10.
Counterparts;
Facsimile or PDF Signature
. This agreement may be executed
in counterparts, each of which will be deemed an original hereof
and all of which together will constitute one and the same
instrument. This agreement may be executed by facsimile or PDF
signature by either party and such signature shall be deemed
binding for all purposes hereof, without delivery of an original
signature being thereafter required.
This
offer shall expire thirty (30) calendar days from the date of this
offer letter. Should you wish to accept this offer and its terms
and conditions, please confirm your understanding of, agreement to,
and acceptance of the foregoing by signing and returning to the
undersigned the duplicate copy of this offer letter enclosed
herewith.
AUTOWEB,
INC.
By:
/s/ Sara
Partin
Sara
Partin
Senior
Vice President,
Chief
Human Resources Officer
Accepted
and Agreed
as of
the date
first
written above:
Joseph
P. Hannan
[Personal
Residence Address Redacted]
Jospeh
P. Hannan
Offer
Letter
November
21, 2018
Page
5
Exhibit A
Offer Letter Schedule
Employment Capacity/Title:
EVP, Chief Financial
Officer
Employment Commencement Date:
December 17,
2018
Base Salary:
Semi-monthly Rate of Fourteen Thousand Five
Hundred Eighty-four Dollars ($14,584) which equates to an
annualized rate of approximately Three Hundred Fifty Thousand
Dollars ($350,000).
Annual Incentive Compensation Target:
55%
Stock Options:
120,000. Priced at closing price of common
stock on The Nasdaq Capital Market on Commencement Date. Stock
Options shall be granted as inducement options under NASDAQ
rules.
Sign On Bonus
: One Hundred Thousand Dollars ($100,000) minus
applicable state and federal withholdings payable within 30 days of
employment commencement date.
Vacation Accrual Rate
: V
acation
accrues at a rate equal to 3 weeks (120 hours for full-time
employees) per year (5 hours per pay period).
/s/
JPH
/s/ SP
Employee
Initials
Company
Initials
Exhibit 10.2
AUTOWEB, INC.
Inducement Stock Option Award Agreement
(Non-Qualified Stock Options)
THESE OPTIONS HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (“SECURITIES ACT”), OR THE SECURITIES
LAWS OF ANY STATE AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS A REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND OTHER APPLICABLE STATE
SECURITIES LAWS WITH RESPECT TO SUCH SECURITY IS THEN IN EFFECT, OR
SUCH REGISTRATION UNDER THE SECURITIES ACT AND OTHER APPLICABLE
SECURITIES LAWS IS NOT REQUIRED DUE TO AVAILABLE EXEMPTIONS FROM
SUCH REGISTRATION. SHOULD THERE BE ANY REASONABLE UNCERTAINTY OR
GOOD FAITH DISAGREEMENT BETWEEN THE COMPANY AND PARTICIPANT AS TO
THE AVAILABILITY OF SUCH EXEMPTIONS, THEN PARTICIPANT SHALL BE
REQUIRED TO DELIVER TO THE COMPANY AN OPINION OF COUNSEL
(SKILLED
IN SECURITIES MATTERS, SELECTED BY PARTICIPANT AND REASONABLY
SATISFACTORY TO THE COMPANY)
IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY THAT SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH AN AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES
LAWS.
This
Inducement Stock Option Award Agreement (“
Agreement
”) is entered into
effective as of the Grant Date set forth on the signature page to
this Agreement (“
Grant
Date
”) by and between AutoWeb, Inc., a Delaware
corporation (“
Company
”), and the person set
forth as Participant on the signature page hereto
(“
Participant
”).
Participant has not
previously been an employee or director of the Company. The Company
has determined to offer employment to Participant, and as an
inducement material to Participant’s decision to accept such
employment offer, the Company determined to grant Participant the
Options (as defined herein) under the terms and conditions set
forth herein.
This
Agreement and the stock options granted hereby have not been
granted pursuant to The AutoWeb, Inc. 2018 Equity Incentive Plan
(“
Plan
”), but
certain capitalized terms identified herein and not defined herein
shall have the same meanings as defined in the Plan.
1.
Grant of
Options
. The Company hereby grants to Participant
non-qualified stock options (“
Options
”) to purchase the number
of shares of common stock of the Company, par value $0.001 per
share, set forth on the signature page to this Agreement
(“
Shares
”), at
the exercise price per Share set forth on the signature page to
this Agreement (“
Exercise
Price
”). The Options are not intended to qualify as
incentive stock options under Section 422 of the Code (as such term
is defined in the Plan).
2.
Term of
Options
. Unless the Options terminate earlier pursuant to
the provisions of this Agreement, the Options shall expire on the
seventh (7
th
) anniversary of the
Grant Date (“
Option
Expiration Date
”).
3.
Vesting
. The
Options shall become vested and exercisable in accordance with the
vesting schedule set forth on the signature page to this Agreement
(“
Vesting
Schedule
”). No installments of the Options shall vest
after Participant’s termination of employment for any
reason.
4.
Exercise of
Options
.
(a)
Manner
of Exercise
. To the extent vested, the Options may be
exercised, in whole or in part, by delivering written notice to the
Company in accordance with Section 7(f) of this Agreement in such
form as the Company may require from time to time, or at the
direction of the Company, through the procedures established with
the Company’s third party option administration service. Such
notice shall specify the number of Shares subject to the Options
that are being exercised and shall be accompanied by full payment
of the Exercise Price of such Shares in a manner permitted under
the terms of Section 5.5 of the Plan (as if these Options had been
granted under the Plan) (including same day sales through a
broker), except that payment in whole or in part in a manner set
forth in clauses (ii), (iii) or (iv) of Section 5.5(b) of the Plan
(as if these Options had been granted under the Plan), may only be
made with the consent of the Committee (as such term is defined in
the Plan). The Options may be exercised only in multiples of whole
Shares, and no fractional Shares shall be issued.
(b)
Issuance
of Shares
. Upon exercise of the Options and payment of the
Exercise Price for the Shares as to which the Options are exercised
and satisfaction of all applicable tax withholding requirements,
the Company shall issue to Participant the applicable number of
Shares in the form of fully paid and nonassessable
Shares.
(c)
Withholding
.
No Shares will be issued on exercise of the Options unless and
until Participant pays to the Company or makes satisfactory
arrangements with the Company for payment of, any federal, state,
local or foreign taxes required by law to be withheld in respect of
the exercise of the Options. Participant may remit withholding
payment following Option exercise through the use of broker
assisted Option exercise. Participant hereby agrees that the
Company may withhold from Participant’s wages or other
remuneration the applicable taxes. At the discretion of the
Company, the applicable taxes may be withheld in kind from the
Shares otherwise deliverable to Participant on exercise of the
Options, up to Participant’s minimum required withholding
rate or such other rate determined by the Committee that will not
trigger a negative accounting impact.
(d)
Compliance
with
Securities Trading Policy
.
Shares issued upon exercise of the
Options may only be sold, pledged or otherwise transferred in
compliance with the Company’s securities trading policies
generally applicable to officers, directors or employees of the
Company as long as Participant is subject to such securities
trading policy.
(e)
Limitation
on Number of Resales or Transfers of Shares
. The number of
Shares that may be resold or transferred to the public or through
any public securities trading market at any time may not exceed (i)
for any one sale or transfer order, twenty-five percent (25%) of
the Average Daily Volume; and (ii) for all sales or transfer volume
in any calendar week, twenty-five percent (25%) of the Weekly
Volume. For purposes of this Section 4(e), (i) “
Average Daily Volume
” will be
determined once at the beginning of each calendar quarter for
application during such quarter based on an averaging of the daily
volume of sales of Company Common Stock as reported by The NASDAQ
Capital Market (provided that if the Company’s Common Stock
is not then listed on The NASDAQ Capital Market, as reported by
such trading market on which the Common Stock is traded) for each
trading day over the 90-trading day period preceding such
determination; and (ii) “
Average Weekly Volume
” is
calculated by multiplying the Average Daily Volume by the number of
trading days in the calendar week preceding the proposed sale or
transfer of Shares.
5.
Option
Termination and Other Provisions
.
(a)
Termination
Upon Expiration of Option Term
. The Options shall terminate
and expire in their entirety on the Option Expiration Date. In no
event may Participant exercise the Options after the Option
Expiration Date, even if the application of another provision of
this Section 5 may result in an extension of the exercise period
for the Options beyond the Option Expiration Date.
(b)
Termination
of Employment
.
(i)
Termination
of Employment Other Than Due to Death, Disability or
Cause
.
(1)
Participant may exercise the vested portion of the Options for a
period of ninety (90) days (but in no event later than the Option
Expiration Date) following any termination of Participant’s
employment with Company, either by Participant or Company, other
than in the event of a termination of Participant’s
employment by Company for Cause (as defined below), voluntary
termination by Participant without Good Reason (as defined below)
or by reason of Participant’s death or Disability (as defined
below). In the event the termination of Participant’s
employment is by Company without Cause or by Participant for Good
Reason, any unvested portion of the Options shall become
immediately and fully vested as of the date of such
termination.
(2) In
the event of a voluntary termination of employment with the Company
by Participant without Good Reason, (i) unvested Options as of the
date of termination shall immediately terminate in their entirety
and shall thereafter not be exercisable to any extent whatsoever;
and (ii) Participant may exercise any portion of the Options that
are vested as of the date of termination for a period of ninety
(90) days (but in no event later than the Option Expiration Date)
following the date of termination.
(3) To
the extent Participant is not entitled to exercise the Options at
the date of termination of employment, or if Participant does not
exercise the Options within the time specified in the Plan or this
Agreement for post-termination of employment exercises of the
Options, the Options shall terminate.
(4) For
purposes of this Agreement, the terms “
Cause
” and “
Good Reason
”
shall have the meanings ascribed
to them in that certain Severance Benefits Agreement listed on the
signature page to this Agreement by and between Company and
Participant (“
Severance
Agreement
”).
(ii)
Termination
of Employment for Cause
. Upon the termination of
Participant’s employment by the Company for Cause, unless the
Options have been earlier terminated, the Options (whether vested
or not) shall immediately terminate in their entirety and shall
thereafter not be exercisable to any extent whatsoever; provided
that the Company, in its discretion, may, by written notice to
Participant given as of the date of termination, authorize
Participant to exercise any vested portion of the Options for a
period of up to thirty (30) days following Participant’s
termination of employment for Cause, provided that in no event may
Participant exercise the Options beyond the Option Expiration
Date.
(iii)
Termination
of Participant’s Employment By Reason of Participant’s
Death
. In the event Participant’s employment is
terminated by reason of Participant’s death, the Options, to
the extent vested as of the date of termination, may be exercised
at any time within twelve (12) months following the date of
termination (but in no event later than the Option Expiration Date)
by Participant’s executor or personal representative or the
person to whom the Options shall have been transferred by will or
the laws of descent and distribution, but only to the extent
Participant could exercise the Options at the date of
termination.
(iv)
Termination
of Participant’s Employment By Reason of Participant’s
Disability
. In the event that Participant ceases to be an
employee by reason of Participant’s Disability, unless the
Options have been earlier terminated, Participant (or
Participant’s attorney-in-fact, conservator or other
representative on behalf of Participant) may, but only within
twelve (12) months from the date of such termination of employment
(but in no event later than the Option Expiration Date), exercise
the Options to the extent Participant was otherwise entitled to
exercise the Options at the date of such termination of employment.
For purposes of this Agreement, “
Disability”
shall mean
Participant’s becoming “permanently and totally
disabled” within the meaning of Section 22(e)(3) of the Code
or as otherwise determined by the Committee in its discretion. The
Committee may require such proof of Disability as the Committee in
its sole and absolute discretion deems appropriate, and the
Committee’s determination as to whether Participant has
incurred a Disability shall be final and binding on all parties
concerned.
(c)
Change
in Control
. In the event of a Change in Control, the effect
of the Change in Control on the Options shall be determined by the
applicable provisions of the Plan (including, without limitation,
Article 10 of the Plan) (as if the Options had been granted under
the Plan), provided that (i) to the extent the Options are assumed
or substituted by the successor company in connection with the
Change in Control (or the Options are continued by Company if it is
the ultimate parent entity after the Change in Control), the
Options will vest and become fully exercisable in accordance with
clause (i) of Section 10.2(a) of the Plan (as if the Options had
been granted under the Plan), if within twenty-four (24) months
following the date of the Change in Control Participant’s
employment is terminated by Company or a Subsidiary (or the
successor company or a subsidiary or parent thereof) without Cause
or by Participant for Good Reason, and any vested Options (either
vested prior to the Change in Control or accelerated by reason of
this Section 5(c)) may be exercised for a period of twenty-four
(24) months after the date of such termination of employment (but
in no event later than the Option Expiration Date); and (ii) any
portion of the Options which vests and becomes exercisable pursuant
to Section 10.2(b) of the Plan (as if the Options had been granted
under the Plan), as a result of such Change in Control will (1)
vest and become exercisable on the day prior to the date of the
Change in Control if Participant is then employed by the Company or
a Subsidiary and (2) terminate on the date of the Change in
Control. For purposes of Section 10.2(a) of the Plan, the Options
shall not be deemed assumed or substituted by a successor company
(or continued by Company if it is the ultimate parent entity after
the Change in Control) if the Options are not assumed, substituted
or continued with equity securities of the successor company or
Company, as applicable, that are publicly-traded and listed on an
exchange in the United States and that have voting, dividend and
other rights, preferences and privileges substantially equivalent
to the Shares. If the Options are not deemed assumed, substituted
or continued for purposes of Section 10.2(a) of the Plan, the
Options shall be deemed not assumed, substituted or continued and
governed by Section 10.2(b) of the Plan. Notwithstanding the
foregoing, if on the date of the Change in Control the Fair Market
Value of one Share is less than the Exercise Price per Share, then
the Options shall terminate as of the date of the Change in Control
except as otherwise determined by the Committee.
(d)
Extension
of Exercise Period
. Notwithstanding any provisions of this
Section 5 to the contrary, if following termination of employment
or service the exercise of the Options or, if in conjunction with
the exercise of the Options, the sale of the Shares acquired on
exercise of the Options, during the post-termination of service
time period set forth in the paragraph of this Section 5 applicable
to the reason for termination of service would, in the
determination of the Company, violate any applicable federal or
state securities laws, rules, regulations or orders (or any Company
policy related thereto), including its securities trading policy),
the running of the applicable period to exercise the Options shall
be tolled for the number of days during the period that the
exercise of the Options or sale of the Shares acquired on exercise
would in the Company’s determination constitute such a
violation;
provided,
however
, that in no event shall the exercisability of the
Options be extended beyond the Option Expiration Date.
(e)
Adjustments
.
The number of Options may be subject to adjustment as provided in
Section 11.2 of the Plan (as if the Options had been granted under
the Plan).
(f)
Other
Governing Agreements or Plans
.
To the extent not
prohibited by the Plan, the provisions of this Section 5 regarding
the acceleration of vesting of Options and the extension of the
exercise period for Options following a Change in Control or a
termination of Participant’s employment with Company shall be
superseded and governed by the provisions, if any, of a written
employment or severance agreement between Participant and Company
or a severance plan of Company covering Participant, including a
change in control severance agreement or plan, to the extent such a
provision (i) is specifically applicable to option awards or grants
made to Participant and (ii) provides for the acceleration of
Options vesting or for a longer extension period for the exercise
of the Options in the case of a Change in Control or a particular
event of termination of Participant’s employment with Company
(e.g., an event of termination governed by Section 5(b)(i)) to this
Agreement than is provided in the provision of this Section 5
applicable to a Change in Control or to the same event of
employment termination;
provided,
however
, that in no event shall the exercisability of the
Options be extended beyond the Option Expiration Date.
(g)
Forfeiture
upon Engaging in Detrimental Activities
. If, at any
time within the twelve (12) months after (i) Participant exercises
any portion of the Options; or (ii) the effective date of any
termination of Participant’s employment by the Company or by
Participant for any reason, Participant engages in, or is
determined by the Committee in its sole discretion to have engaged
in, any (i) material breach of any non-competition,
non-solicitation, non-disclosure or settlement or release covenant
or agreement with the Company or any Subsidiary; (ii) activities
during the course of Participant’s employment with the
Company or any Subsidiary constituting fraud, embezzlement, theft
or dishonesty; or (iii) activity that is otherwise in conflict
with. or adverse or detrimental to the interests of the Company or
any Subsidiary, then (x) the Options shall terminate effective as
of the date on which Participant engaged in or engages in that
activity or conduct, unless terminated sooner pursuant to the
provisions of this Agreement, and (y) the amount of any gain
realized by Participant from exercising all or a portion of the
Options at any time following the date that Participant engaged in
any such activity or conduct, as determined as of the time of
exercise, shall be forfeited by Participant and shall be paid by
Participant to the Company, and recoverable by the Company, within
sixty (60) days following such termination date of the
Options. For purposes of the foregoing, the following will be
deemed to be activities in conflict with or adverse or detrimental
to the interests of the Company or any Subsidiary: (i)
Participant’s conviction of, or pleading guilty or nolo
contendre to any misdemeanor involving moral turpitude or any
felony, the underlying events of which related to
Participant’s employment with the Company; (ii) knowingly
engaged or aided in any act or transaction by the Company or a
Subsidiary that results in the imposition of criminal, civil or
administrative penalties against the Company or any Subsidiary; or
(iii) misconduct during the course of Participant’s
employment by the Company or any Subsidiary that results in an
accounting restatement by the Company due to material noncompliance
with any financial reporting requirement under applicable
securities laws, whether such restatement occurs during or after
Participant’s employment by the Company or any
Subsidiary.
(h)
Reservation
of Committee Discretion to Accelerate Option Vesting and Extend
Option Exercise Window
. The Committee reserves the right, in
its sole and absolute discretion, to accelerate the vesting of the
Options and to extend the exercise window for Options that have
vested (either in accordance with the terms of this Agreement or by
discretionary acceleration by the Committee) under circumstances
not otherwise covered by the foregoing provisions of this Section
5; provided that in no event may the Committee extend the exercise
period for Options beyond the Option Expiration Date. The Committee
is under no obligation to exercise any such discretion and may or
may not exercise such discretion on a case-by-case
basis.
6.
Non-Registered
Option and Shares
.
(a) Participant
hereby acknowledges that the Options and any Shares that may be
acquired upon exercise of the Options pursuant hereto are, as of
the date hereof, not registered: (i) under the Securities Act, on
the ground that the issuance of the Options and the underlying
shares is exempt from registration under Section 4(2) of the
Securities Act as not involving any public offering or, with
respect to Options, because the grant of the Options alone may not
constitute an offer or sale of a security under the Securities Act
until such time as the Options are exercised or exercisable or (ii)
under any applicable state securities law because the grant of the
Options does not involve any public offering or is otherwise exempt
under applicable state securities laws, and (iii) that the
Company’s reliance on the Section 4(2) exemption of the
Securities Act and under applicable state securities laws is
predicated in part on the representations hereby made to the
Company by Participant. Participant represents and warrants that
Participant is acquiring the Options and will acquire the Shares
for investment for Participant’s own account, with no present
intention of reselling or otherwise distributing the
same.
(b) If,
at the time of issuance of shares upon exercise of the Options, no
registration statement is in effect with respect to such shares
under applicable provisions of the Securities Act and other
applicable securities laws, Participant hereby agrees that
Participant will not sell, transfer, offer, pledge or hypothecate
all or any part of the shares unless and until Participant shall
first have given notice to the Company describing such sale,
transfer, offer, pledge or hypothecation and there shall be
available exemptions from such registration requirements that
exist. Should there be any reasonable uncertainty or good faith
disagreement between the Company and Participant as to the
availability of such exemptions, then Participant shall be required
to deliver to the Company (1) an opinion of counsel (skilled in
securities matters, selected by Participant and reasonably
satisfactory to the Company) in form and substance satisfactory to
the Company to the effect that such offer, sale, transfer, pledge
or hypothecation is in compliance with an available exemption under
the Securities Act and other applicable securities laws, or (2) an
interpretative letter from the Securities and Exchange Commission
to the effect that no enforcement action will be recommended if the
proposed offer, sale, transfer, pledge or hypothecation is made
without registration under the Securities Act. The Company may at
its election require that Participant provide the Company with
written reconfirmation of Participant’s investment intent as
set forth in Section 6(a) with respect to the shares. The shares
issued upon exercise of the Options shall bear a legend reading
substantially as follows:
“THESE SHARES
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (“
SECURITIES
ACT
”), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED
UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND OTHER
APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO SUCH SECURITY IS
THEN IN EFFECT, OR SUCH REGISTRATION UNDER THE SECURITIES ACT AND
OTHER APPLICABLE SECURITIES LAWS IS NOT REQUIRED DUE TO AVAILABLE
EXEMPTIONS FROM SUCH REGISTRATION. SHOULD THERE BE ANY REASONABLE
UNCERTAINTY OR GOOD FAITH DISAGREEMENT BETWEEN THE COMPANY AND
PARTICIPANT AS TO THE AVAILABILITY OF SUCH EXEMPTIONS, THEN
PARTICIPANT SHALL BE REQUIRED TO DELIVER TO THE COMPANY AN OPINION
OF COUNSEL (SKILLED IN SECURITIES MATTERS, SELECTED BY PARTICIPANT
AND REASONABLY SATISFACTORY TO THE COMPANY) IN FORM AND SUBSTANCE
SATISFACTORY TO THE COMPANY THAT SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH AN AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT AND OTHER APPLICABLE SECURITIES
LAWS.”
(c) The
exercise of the Option and the issuance of the Shares upon such
exercise shall be subject to compliance by the Company and
Participant with all applicable requirements of law, rules,
regulations or orders relating thereto and with all applicable
rules and regulations of any stock exchange or securities trading
market on which the Shares may be listed for trading at the end of
such exercise and issuance.
(d) The
inability of the Company to obtain approval from any regulatory
body having authority deemed by the Company to be necessary to the
lawful issuance and sale of any Shares pursuant to the Options
shall relieve the Company of any liability with respect to the
nonissuance or sale of the Shares as to which such approval shall
not have been obtained. However, the Company shall use its best
efforts to obtain all such applicable approvals.
(a)
No Rights of Stockholder
. Participant shall not have any of
the rights of a stockholder with respect to the Shares subject to
this Agreement until such Shares have been issued upon the due
exercise of the Options.
(b)
Nontransferability of Options
. The Options shall be
nontransferable or assignable except to the extent expressly
provided in the Plan (as if the Options had been granted under the
Plan). Notwithstanding the foregoing, Participant may by delivering
written notice to the Company in a form provided by or otherwise
satisfactory to the Company, designate a third party who, in the
event of Participant’s death, shall thereafter be entitled to
exercise the Options.
This Agreement
is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(c)
Severability
. If any provision of this Agreement shall be
held unlawful or otherwise invalid or unenforceable in whole or in
part by a court of competent jurisdiction, such provision shall (i)
be deemed limited to the extent that such court of competent
jurisdiction deems it lawful, valid and/or enforceable and as so
limited shall remain in full force and effect, and (ii) not affect
any other provision of this Agreement or part thereof, each of
which shall remain in full force and effect.
(d)
Governing Law, Jurisdiction and Venue
. This Agreement shall
be governed by and interpreted in accordance with the laws of the
State of Delaware other than its conflict of laws principles. The
parties agree that in the event that any suit or proceeding is
brought in connection with this Agreement, such suit or proceeding
shall be brought in the state or federal courts located in New
Castle County, Delaware, and the parties shall submit to the
exclusive jurisdiction of such courts and waive any and all
jurisdictional, venue and inconvenient forum objections to such
courts.
(e)
Headings
.
The headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this
Agreement.
(f)
Notices
.
All notices required or permitted under this Agreement shall be in
writing and shall be sufficiently made or given if hand delivered
or mailed by registered or certified mail, postage prepaid. Notice
by mail shall be deemed delivered on the date on which it is
postmarked.
Notices
to the Company should be addressed to:
AutoWeb,
Inc.
18872
MacArthur Blvd., Suite 200
Irvine,
CA 92612-1400
Attention: Chief
Legal Officer
Notices
to Participant should be addressed to Participant at
Participant’s address as it appears on the Company’s
records.
The
Company or Participant may by writing to the other party designate
a different address for notices. If the receiving party consents in
advance, notice may be transmitted and received via telecopy or via
such other electronic transmission mechanism as may be available to
the parties. Such notices shall be deemed delivered when
received.
(g)
Agreement
Not an Employment Contract
. This Agreement is not an
employment or service contract, and nothing in this
Agreement or in the
granting of the Options shall be deemed to create in any way
whatsoever any obligation on Participant’s part to continue
as an employee of the Company or any Subsidiary or on the part of
the Company or any Subsidiary to continue Participant’s
employment or service as an employee.
(h)
Counterparts
.
This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original Agreement but all of which, taken
together, shall constitute one and the same Agreement binding on
the parties hereto. The signature of any party hereto to any
counterpart hereof shall be deemed a signature to, and may be
appended to, any other counterpart hereof.
(i)
Administration
.
The Committee shall have the power to interpret this Agreement and
to adopt such rules for the administration, interpretation and
application of this Agreement as are consistent with this Agreement
and to interpret or revoke any such rules. All actions taken and
all interpretations and determinations made by the Committee
(including determinations as to the calculation, satisfaction or
achievement of performance-based vesting requirements, if any, to
which the Options are subject) shall be final and binding upon
Participant, the Company and all other interested persons. No
member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to
this Agreement.
(j)
Policies
and Procedures
. Participant agrees that Company may impose,
and Participant agrees to be bound by, Company policies and
procedures with respect to the ownership, timing and manner of
resales of shares of Company's securities, including without
limitation, (i) restrictions on insider trading; (ii) restrictions
designed to delay and/or coordinate the timing and manner of sales
by officers, directors and affiliates of the Company following a
public offering of the Company's securities; (iii) stock ownership
or holding requirements applicable to officers and/or directors of
Company; and (iv) the required use of a specified brokerage firm
for such resales.
(k)
Entire
Agreement; Modification
. This Agreement contains the entire
agreement between the parties with respect to the subject matter
contained herein and may not be modified except as provided herein
or in a written document signed by each of the parties hereto and
may be rescinded only by a written agreement signed by both
parties.
Remainder of Page Intentionally Left Blank; Signature Page
Follows
IN
WITNESS WHEREOF, the parties have executed this Agreement effective
as of the Grant Date.
|
Grant
Date:
|
December 17,
2018
|
|
Total Options
Awarded:
|
120,000
|
|
Exercise Price Per
Share:
|
$2.30
|
|
Severance Benefits
Agreement:
|
Severance Benefits Agreement
dated
|
|
|
December 17, 2018
|
|
Vesting
Schedule:
|
|
|
|
(i)
thirty-three and one-third percent (33 1/3%) shall vest and become
exercisable on the first anniversary after the Grant Date; and (ii)
one thirty-sixth (1/36th) shall vest and become exercisable on each
successive monthly anniversary thereafter for the following
twenty-four (24) months ending on the third anniversary of such
vesting commencement date.
|
|
|
|
|
“Company
”
|
AutoWeb, Inc., a
Delaware corporation
|
|
|
|
|
|
By:
/s/ Glenn E.
Fuller
|
|
|
Glenn E.
Fuller
|
|
|
EVP, Chief Legal
and Administrative
|
|
|
Officer and
Secretary
|
|
|
|
|
“Participant
”
|
/s/ Joseph P.
Hannan
|
|
|
Joseph P.
Hannan
|
Exhibit 10.3
AUTOWEB,
INC.
SEVERANCE
BENEFITS AGREEMENT
This
Severance Benefits Agreement (“
Agreement
”) entered into effective
as of December 17, 2018, (“
Effective Date
”) between AutoWeb,
Inc., a Delaware corporation (“
AutoWeb
” or
“Company”
), and Joseph P.
Hannan (“
Employee
”).
Background
AutoWeb
has determined that it is in its best interests to provide Employee
with certain severance benefits to encourage Employee’s
continued employment with, and dedication to the business of, the
Company.
In
consideration of the foregoing and other good and valuable
consideration, receipt of which is hereby acknowledged, the Parties
hereby agree as follows.
1.
Definitions
.
For purposes of this Agreement, the terms below that begin with
initial capital letters within this Agreement shall have the
specially defined meanings set forth below (unless the context
clearly indicates a different meaning).
(a)
“
409A Suspension Period
”
shall have the meaning set forth in Section 3.
(b)
“
Arbitration Agreement
”
means that certain Mutual Agreement to Arbitrate dated as December
17, 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.
For
purposes of this definition of Cause, no act or failure to act, on
the part of the Employee, shall be considered “willful”
if it is done, or omitted to be done, by the Employee in good faith
or with reasonable belief that Employee’s action or omission
was in the best interest of the Company. Employee shall have the
opportunity to cure any such acts or omissions (other than clauses
(i) and (iii) above) within thirty (30) days of the
Employee’s receipt of a written notice from the Company
notifying Employee that, in the opinion of the Company,
“Cause” exists to terminate Employee’s
employment.
(d)
“
Change of Control
” shall
mean any of the following events:
(i)
When any “person” as
defined in Section 3(a)(9) of the Exchange Act and as used in
Sections 13(d) and 14(d) thereof (including a “group”
as defined in Section 13(d) of the Exchange Act, but excluding the
Company, any Subsidiary or any employee benefit plan sponsored or
maintained by the Company or any Subsidiary (including any trustee
of such plan acting as trustee)), directly or indirectly, becomes
the “beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act, as amended from time to time), of securities of
the Company representing 50% or more of the combined voting power
of the Company’s then outstanding
securities.
(ii)
When the individuals who, as of the
Effective Date, constitute the Board (“
Incumbent
Board
”), cease for any
reason to constitute at least a majority of the Board; provided
however, that any individual becoming a director subsequent to such
date, whose election, or nomination for election by the
Company’s stockholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board
shall, for purposes of this section, be counted as a member of the
Incumbent Board in determining whether the Incumbent Board
constitutes a majority of the Board.
(iii)
Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially
all of the assets of the Company or the acquisition of assets of
another corporation (a “
Business
Combination
”), in each
case, unless, following such Business
Combination:
(1)
all or substantially all of the
individuals and entities who were the beneficial owners of the then
outstanding shares of common stock of the Company and the
beneficial owners of the combined voting power of the then
outstanding voting securities of the Company entitled to vote
generally in the election of directors immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than fifty percent (50%) of the then outstanding shares of common
stock and the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors,
respectively, as the case may be, of the corporation resulting from
such Business Combination (including, without limitation, a
corporation which as a result of such transaction owns the Company
or all or substantially all of the Company’s assets either
directly or indirectly or through one or more subsidiaries);
and
(2)
no person (excluding any employee
benefit plan or related trust of the Company or such corporation
resulting from such Business Combination) beneficially owns,
directly or indirectly, fifty percent (50%) or more of the then
outstanding shares of common stock of the corporation resulting
from such Business Combination or the combined voting power of such
corporation except to the extent that such ownership existed prior
to the Business Combination.
(iv)
Approval by the stockholders of the Company of a
complete liquidation or dissolution of the
Company
.
(e)
“
COBRA
” shall mean the
Consolidated Omnibus Budget Reconciliation Act, as amended, and the
rules and regulations promulgated thereunder.
(f)
“
Code
” shall mean the
Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
(g)
“
Company
” means 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 EVP,
Chief Financial Officer of the Company.
(a)
“
Employee’s Primary Work
Location
” means AutoWeb’s headquarters located
at 18872 MacArthur Blvd, Suite 200, Irvine, CA 92612.
(b)
“
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.
(c)
“
Health and Welfare
Benefits
” means all Company medical, dental, vision,
life and disability plans in which Employee
participates.
(d)
“
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).
(e)
“
Severance Period
” shall
equal Six (6) months.
(f)
“
Successor Company
” means
any successor to AutoWeb or its assets by reason of any Change of
Control.
(g)
“
Termination Without
Cause
” means termination of Employee’s
employment with the Company (i) by the Company (a) for any reason
other than (1) death, (2) Disability or (3) those reasons expressly
set forth in the definition of “Cause,” (b) for no
reason at all, or (c) in connection with or as a result of a Change
of Control; provided, however, that a termination of
Employee’s employment with the Company in connection with a
Change of Control shall not constitute a Termination Without Cause
if Employee is offered employment with the Successor Company under
terms and conditions, including position, salary and other
compensation, and benefits, that would not provide Employee the
right to terminate Employee’s employment for Good
Reason.
2.
Severance Benefits
and Conditions
.
(a)
In the event of (i)
Termination Without Cause by the Company, or (ii) the termination
of Employee’s employment with the Company by Employee for
Good Reason within 30 days following the earlier of (1) the
Company’s failure to cure within the 30-day period set forth
in the definition of Good Reason, and (2) the Company’s
notice to Employee that it will not cure the event giving rise to
such termination for Good Reason, then (A) Employee shall receive
upon such termination a lump sum amount equal to the number of
months constituting the Severance Period at the time of termination
times the Employee’s monthly base salary (determined as the
Employee’s highest monthly base salary paid to Employee while
employed by the Company; base salary does not include any bonus,
commissions or other incentive payments or compensation); (B)
subject to Section 2(b) below, Employee shall be entitled to a
continuation of all Health and Welfare Benefits for Employee and,
if applicable, Employee’s eligible dependents during the
Severance Period at the time they would have been provided or paid
had the Employee remained an employee of Company during the
Severance Period and at the levels provided prior to the event
giving rise to a termination; and (C) the Company shall make
available to Employee career transition services at a level and
with a provider selected by the Company in accordance with Section
2(g) below.
(b)
(i)
With respect to Health and Welfare Benefits that are eligible for
continuation coverage under COBRA, in the event the Company is
unable to continue Employee’s and Employee’s eligible
dependents’ (assuming such dependents were covered by 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.
(c)
The payments and benefits set forth in Sections 2(a) and 2(b) are
conditioned upon and shall be provided to Employee only if (i)
Employee has executed and delivered to the Company a Separation and
Release Agreement in favor of the Company and Releasees, which
agreement shall be substantially in the form attached hereto as
Exhibit A (“
Release
”) no later than the
expiration of the applicable period of time allowed for Employee to
consider the Release as set forth in Section 17 of the Release
(“
Release Consideration
Period
”); (ii) Employee has not revoked the Release
prior to the expiration of the applicable revocation period set
forth in Section 17 of the Release (“
Release Revocation Period
”); and
(iii) the Release has become effective and non-revocable no later
than the cumulative period of time represented by the sum of the
maximum Release Consideration Period and the maximum Release
Revocation Period. No payments or benefits set forth in Sections
2(a) or 2(b) shall be due or payable to, or provided to, Employee
if the Release has not become effective and non-revocable in
accordance with the requirements of this Section 2(c).
(d)
Upon satisfaction of the conditions set forth in Section 2(c), but
subject to the last sentence of this Section 2(d), all payments
under Section 2(a)(A) shall be made to Employee within five (5)
business days after the Release becomes effective and non-revocable
in accordance with its terms. In any case, the payment under
Section 2(a)(A) shall be made no later than two and one-half months
after the end of the calendar year in which Employee’s
Separation from Service occurs, provided that the Release shall
have become effective and non-revocable in compliance with Section
2(c) prior to expiration of such two and one-half month period. If
the period of time covered by the entire allowed Release
Consideration Period, the entire Revocation Period and the entire
five business day period described above in this Section 2(d)
(considering such periods consecutively) begins in one calendar
year and ends in the following calendar year, all payments under
Section 2(a)(A) shall be made to Employee on the first business day
of such following calendar year which is five (5) or more business
days after the date on which the Release became effective and
non-revocable in accordance with its terms.
(e)
In addition to the payments and benefits under Sections 2(a) and
2(b), to the extent required by applicable law or the
Company’s incentive or other compensation plans applicable to
Employee, if any, upon any termination of Employee’s
employment Employee shall receive (i) any amounts earned and due
and owing to Employee as of the termination date with respect to
any base salary, incentive compensation or commissions; and (ii)
any other payments required by applicable law (including payments
with respect to accrued and unused vacation time). Payments
required under this Section 2(e) are not conditioned upon
Employee’s signing the Release and shall be made within the
time period(s) required by applicable law.
(f)
All payments and benefits under this Section 2 are subject to
legally required federal, state and local payroll deductions and
withholdings.
(g)
To receive career transition services, Employee must contact the
service provider no later than 30 days after the Release becomes
effective.
(h)
Other than the payments and benefits provided for in this Section
2, Employee shall not be entitled to any additional payments or
benefits from the Company resulting from a termination of
Employee’s employment with the Company.
3.
Taxes
. All
payments made pursuant to this Agreement will be subject to
withholding of applicable taxes. Notwithstanding the foregoing, and
except as otherwise specifically provided elsewhere in this
Agreement, Employee is solely responsible and liable for the
satisfaction of any federal, state, province or local taxes that
may arise with respect to this Agreement (including any taxes and
interest arising under Section 409A of the Code). Neither the
Company nor any of its employees, directors, or service providers
shall have any obligation whatsoever to pay such taxes or interest,
to prevent Employee from incurring them, or to mitigate or protect
Employee from any such tax or interest liabilities. Notwithstanding
anything in this Agreement to the contrary, if any amounts that
become due under this Agreement on account of Employee’s
termination of employment constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code,
payment of such amounts shall not commence until Employee incurs a
Separation from Service. If, at the time of Employee’s
Separation from Service under this Agreement, Employee is a
“specified employee” (within the meaning of Section
409A of the Code), any amounts that constitute “nonqualified
deferred compensation” within the meaning of Section 409A of
the Code that become payable to Employee on account of
Employee’s Separation from Service (including any amounts
payable pursuant to the preceding sentence) will not be paid until
after the end of the sixth calendar month beginning after
Employee’s Separation from Service (“
409A Suspension Period
”). Within
14 calendar days after the end of the 409A Suspension Period,
Employee shall be paid a lump sum payment, without interest, in
cash equal to any payments delayed because of the preceding
sentence. Thereafter, Employee shall receive any remaining benefits
as if there had not been an earlier delay. With respect to the
reimbursement of expenses to which Employee is entitled under this
Agreement, if any, or the provision of in-kind benefits to Employee
as specified under this Agreement, if any, such reimbursement of
expenses or provision of in-kind benefits shall be subject to the
following conditions: (i) the expenses eligible for
reimbursement or the amount of in-kind benefits provided in one
taxable year shall not affect the expenses eligible for
reimbursement or the amount of in-kind benefits provided in any
other taxable year, except for any medical reimbursement
arrangement providing for the reimbursement of expenses referred to
in Section 105(b) of the Code, solely to the extent that the
arrangement provides for a limit on the amount of expenses that may
be reimbursed under such arrangement over some or all of the period
in which the reimbursement arrangement remains in effect;
(ii) the reimbursement of an eligible expense shall be made no
later than the end of the calendar year after the calendar year in
which such expense was incurred; (iii) the right to
reimbursement or in-kind benefits shall not be subject to
liquidation or exchange for another benefit; and (iv) the right to
reimbursement or provision of in-kind benefits shall not apply to
any expenses incurred or benefits to be provided beyond the last
day of the second taxable year following the year in which
Employee's Separation from Service occurred.
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:
AutoWeb,
Inc.
18872
MacArthur Boulevard, Suite 200
Irvine,
California, 92612-1400
Facsimile: (949)
862-1323
Attn:
Chief Human Resources Officer
If to
the Employee:
To
Employee’s latest home address on file with the
Company
7.
No Waiver
.
No waiver, by conduct or otherwise, by any party of any term,
provision, or condition of this Agreement, shall be deemed or
construed as a further or continuing waiver of any such term,
provision, or condition nor as a waiver of a similar or dissimilar
condition or provision at the same time or at any prior or
subsequent time.
8.
Amendment to this
Agreement
. No modification, waiver, amendment, discharge or
change of this Agreement, shall be valid unless the same is in
writing and signed by the party against whom enforcement of such
modification, waiver amendment, discharge, or change is or may be
sought.
9.
Non-Disclosure
.
Unless required by applicable law, rule, regulation or order or to
enforce this Agreement, Employee shall not disclose the existence
of this Agreement or the underlying terms to any third party,
including without limitation, any former, present or future
employee of the Company, other than to Employee’s immediate
family who have a need to know such matters or to Employee’s
tax or legal advisors who have a need to know such matters. If
Employee does disclose this Agreement or any of its terms to any of
Employee’s immediate family or tax or legal advisors, then
Employee will inform them that they also must keep the existence of
this Agreement and its terms confidential. The Company may disclose
the existence or terms of the Agreement and its terms and may file
this Agreement as an exhibit to its public filings if it is
required to 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 California without giving
effect to such State’s choice of law rules. This Agreement is
deemed to be entered into entirely in the State of California. This
Agreement shall not be strictly construed for or against either
party.
12.
No Third Party
Beneficiaries
. Except as otherwise set forth in this
Agreement, nothing contained in this Agreement is intended or shall
be construed to create rights running to the benefit of any third
party.
13.
Successors of the
Company
. The rights and obligations of the Company under
this Agreement shall inure to the benefit of, and shall be binding
upon, the successors and assigns of the Company, including any
Successor Company. This Agreement shall be assignable by the
Company in the event of a merger or similar transaction in which
the Company is not the surviving entity, or a sale of all or
substantially all of the Company’s assets.
14.
Rights
Cumulative
. The rights under this Agreement, or by law or
equity, shall be cumulative and may be exercised at any time and
from time to time. No failure by any party to exercise, and no
delay in exercising, any rights shall be construed or deemed to be
a waiver thereof, nor shall any single or partial exercise by any
party preclude any other or future exercise thereof or the exercise
of any other right.
15.
No Right or
Obligation of Employment
. Employee acknowledges and agrees
that nothing in this Agreement shall confer upon Employee any right
with respect to continuation of employment by the Company, nor
shall it interfere in any way with Employee’s right or the
Company’s right to terminate Employee’s employment at
any time, with or without Cause.
16.
Interpretation
.
Every provision of this Agreement is the result of full
negotiations between the parties, both of whom have either been
represented by counsel throughout or otherwise been given an
opportunity to seek the aid of counsel. Each party hereto further
agrees and acknowledges that it is sophisticated in legal affairs
and has reviewed this Agreement in detail. Accordingly, no
provision of this Agreement shall be construed in favor of or
against any of the parties hereto by reason of the extent to which
any such party or its counsel participated in the drafting thereof.
Captions and headings of sections contained in this Agreement are
for convenience only and shall not control the meaning, effect, or
construction of this Agreement. Time periods used in this Agreement
shall mean calendar periods unless otherwise expressly
indicated.
17.
Legal and Tax
Advice
. Employee acknowledges that: (i) the Company has
encouraged Employee to consult with an attorney and/or tax advisor
of Employee’s choosing (and at Employee’s own cost and
expense) in connection with this Agreement, and (ii) Employee is
not relying upon the Company for, and the Company has not provided,
legal or tax advice to Employee in connection with this Agreement.
It is the responsibility of Employee to seek independent tax and
legal advice with regard to the tax treatment of this Agreement and
the payments and benefits that may be made or provided under this
Agreement and any other related matters. Employee acknowledges that
Employee has had a reasonable opportunity to seek and consider
advice from Employee’s counsel and tax advisors.
18.
Counterparts
.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall
constitute one instrument. The parties agree that facsimile copies
of signatures shall be deemed originals for all purposes hereof and
that a party may produce such copies, without the need to produce
original signatures, to prove the existence of this Agreement in
any proceeding brought hereunder.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF,
the Company and
Employee have executed and entered into this Agreement effective as
of the date first shown above.
|
|
AUTOWEB,
INC.
By:
/s/ Sara
Partin
Sara
Partin
Senior
Vice President,
Chief
Human Resources Officer
EMPLOYEE
/s/ Joseph P.
Hannan
Joseph P.
Hannan
|
EXHIBIT A
SEPARATION AND RELEASE AGREEMENT
It is
hereby agreed by and between you, Joseph P. Hannan (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 [_______], 201[__] (“
Employment Termination Date
”), and
that You will perform no further duties, functions or services for
the Company subsequent to the Employment Termination Date. You have
resigned or hereby resign from all officer and director positions
You held with the Company or any of its subsidiaries effective as
of the Employment Termination Date. This Separation and Release
Agreement (“
Release
”) is entered into in
connection with that certain Severance Benefits Agreement dated
effective as of December 17, 2018 by and between the Company and
Employee (“
Severance Benefits
Agreement
”).
2.
Release
Consideration
. In exchange for your promises and obligations
in this Release and the Severance Benefits Agreement, including the
release of claims set forth below, if You sign and do not revoke
this Release and this Release becomes effective, the Company will
pay You the amounts, and will provide the benefits, due to You
under the Severance Benefits Agreement, minus legally required
federal, state and local payroll deductions and withholdings.
Payment of any monetary amount provided for in this Section 2 will
be made within the time periods required by the Severance Benefits
Agreement (except for payments or benefits that will be paid or
provided over time as provided therein) and, if no time is
specified, within 5 business days after this Release becomes
effective.
3.
Acknowledgement
of Receipt of Amounts Due
. You acknowledge and agree that
You have received all, and that the Company does not owe You any
additional, payments, benefits or other compensation as a result of
your employment with the Company or your separation from employment
with the Company, including, but not limited to, wages,
commissions, bonuses, vacation pay, severance pay, expenses, fees,
or other compensation or payments of any kind or nature, other than
those amounts or benefits, if any, payable or to be provided to You
after the date hereof pursuant to the Severance Benefits Agreement
after this Release becomes effective.
4.
Return
of Company Property
. You represent and warrant that You have
returned to the Company any and all documents, software, equipment
(including, but not limited to, computers and computer-related
items), and all other materials or other things in your possession,
custody, or control which are the property of the Company,
including, but not limited to, Company identification, keys,
computers, cell phones, and the like, wherever such items may have
been located; as well as all copies (in whatever form thereof) of
all materials relating to your employment, or obtained or created
in the course of your employment with the Company. You hereby
represent that, other than those materials You have returned to the
Company pursuant to this Section 4, You have not copied or caused
to be copied, and have not transferred or printed-out or caused to
be transferred or printed-out, any software, computer disks,
e-mails or other documents other than those documents generally
available to the public, or retained any other materials
originating with or belonging to the Company. You further represent
that You have not retained in your possession, custody or control,
any software, documents or other materials in machine or other
readable form, which are the property of the Company, originated
with the Company, or were obtained or created in the course of or
relate to your employment with the Company.
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 17, 2018, which shall remain binding on You after
the Employment Termination Date.
(b)
Unless required by applicable law, rule, regulation or order or to
enforce this Agreement, Employee shall not disclose the existence
of the Severance Benefits Agreement or this Release or the
underlying terms to any third party, including without limitation,
any former, present or future employee of the Company, other than
to Employee’s immediate family who have a need to know such
matters or to Employee’s tax or legal advisors who have a
need to know such matters. If Employee does disclose this Release,
the Severance Benefits Agreement or any of their respective terms
to any of Employee’s immediate family or tax or legal
advisors, then Employee will inform them that they also must keep
the existence of this Release, the Severance Benefits Agreement and
their respective terms confidential. The Company may disclose the
existence or terms of this Release, the Severance Benefits
Agreement and their respective terms and may file this Release and
the Severance Benefits Agreement as exhibits to its public filings
if it is required to 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.
(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 Sue
.
A
“covenant not to sue” is a promise not to sue 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 sue to enforce this Release. You agree
if You breach this covenant, then You must pay the legal expenses
incurred by incurred by any Releasee in defending against your
suit, including reasonable attorneys’ fees, or, at the
Company’s option, return everything paid to You under this
Agreement. In that event, the Company shall be excused from making
any further payments or continuing any other benefits otherwise
owed to You under paragraph 2 of this Agreement. Furthermore, You
give up all rights to individual damages in connection with any
administrative or court proceeding with respect to your employment
with or termination of employment from, the Company. You also agree
that if You are awarded money damages, You will assign your right
and interest to such money damages (i) in connection with an
administrative charge, to the relevant administrative agency; and
(ii) in connection with a lawsuit or demand for arbitration, to the
Company.
9.
Cooperation
With Company
. You agree to assist and cooperate (including,
but not limited to, providing information to the Company and/or
testifying truthfully in a proceeding) in the investigation and
handling of any internal investigation, governmental matter, or
actual or threatened court action, arbitration, administrative
proceeding, or other claim involving any matter that arose during
the period of your employment. You shall be reimbursed for
reasonable expenses actually incurred in the course of rendering
such assistance and cooperation. Your agreement to assist and
cooperate shall not affect in any way the content of information or
testimony provided by You.
10.
No
Reemployment
.
You
acknowledge and agree that the Company has no obligation to employ
You or offer You employment in the future and You shall have no
recourse against the Company if it refuses to employ You or offer
You employment. If You do seek re-employment, then this Release
shall constitute sufficient cause for the Company to refuse to
re-employ You. Notwithstanding the foregoing, the Company has the
right to offer to re-employ You in the future if, in its sole
discretion, it chooses to do so.
11.
No
Admission of Liability
. This Release does not constitute an
admission that the Company or any other Releasee has violated any
law, rule, regulation, contractual right or any other duty or
obligation.
12.
Severability
.
Should any provision of this Release be declared or be determined
by any court or arbitrator to be illegal or invalid, the validity
of the remaining parts, terms, or provisions shall not be affected,
and said illegal or invalid part, term, or provision shall be
deemed not to be part of this Release.
13.
Governing
Law
. This Release is made and entered into in the State of
California and shall in all respects be interpreted, enforced, and
governed under the law of that state, without reference to conflict
of law provisions thereof.
14.
Interpretation
.
The language of all parts in this Release shall be construed as a
whole, according to fair meaning, and not strictly for or against
any party. The captions and headings contained in this Agreement
are for convenience only and shall not control the meaning, effect,
or construction of this Agreement.
15.
Knowing
and Voluntary Agreement
. You have carefully reviewed this
Release and understand the terms and conditions it contains. By
entering into this Release, You are giving up potentially valuable
legal rights. You specifically acknowledge that You are waiving and
releasing any rights You may have under the ADEA. You acknowledge
that the consideration given for this waiver and release is in
addition to anything of value to which You were already entitled.
You acknowledge that You are signing this Release knowingly and
voluntarily and intend to be bound legally by its
terms.
16.
Entire
Agreement
. You hereby acknowledge that no promise or
inducement has been offered to You, except as expressly stated in
this Release and in the Severance Benefits Agreement, and You are
relying upon none. This Release and the Severance Benefits
Agreement represent the entire agreement between You and the
Company with respect to the subject matter hereof, and supersede
any other written or oral understandings between the parties
pertaining to the subject matter hereof and may only be amended or
modified with the prior written consent of You and the
Company.
17.
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).
18.
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.
(b)
E
mployee understands
that nothing contained in your Confidentiality Agreement limits
Employee’s ability to file a charge or complaint with the
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”). Employee further understands that this Agreement
does not limit Employee’s 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 Company. This Agreement does not limit Employee’s right to
receive an award for information provided to any Government
Agencies.
19.
Period
for Review and Consideration/Revocation Rights
.
[
Alternative
1 for Section 18 if Employee is NOT age 40 or over at time of
separation from employment
]
You
understand that You have seven (7) days after this Release has been
delivered to You by the Company to decide whether to sign this
Release, although You may sign this Release at any time within the
seven (7) day period. If You do sign it, You also understand that
You will have an additional three (3) days after the date You
deliver this signed Release to the Company and to change your mind
and revoke this Release, in which case a written notice of
revocation must be delivered to the Company’s Chief Human
Officer, AutoWeb, Inc., 18872 MacArthur Blvd. Suite 200, Irvine,
California 92612-1400, on or before the third (3
rd
) day after your
delivery of this signed Release to the Company (or on the next
business day if the third calendar day is not a business day). You
understand that this Release will not become effective or
enforceable until after that three (3) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments and benefits specified in Paragraph 2.
[
Alternative
2 for Section 18 if Employee is age 40 or over at time of
separation from employment, separation from employment is NOT in
connection with a group separation, and ADEA Claims are being
released
]
You
understand that You have twenty-one (21) days after this Release
has been delivered to You by the Company to decide whether to sign
this Release, although You may sign this Release at any time within
the twenty-one (21) day period. If You do sign it, You also
understand that You will have an additional seven (7) days after
the date You deliver this signed Release to the Company and to
change your mind and revoke this Release, in which case a written
notice of revocation must be delivered to the Company’s Chief
Human Resources Officer, AutoWeb, Inc., 18872 MacArthur Blvd. Suite
200, Irvine, California 92612-1400, 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.
[
Alternative
3 for Section 18 if Employee is age 40 or over at time of
separation from employment, separation from employment IS in
connection with a group termination, and ADEA Claims are being
released
]
(a) You
understand that You have forty-five (45) days after this Release
has been delivered to You by the Company to decide whether to sign
this Release, although You may sign this Release at any time within
the forty-five (45) day period. If You do sign it, You also
understand that You will have an additional seven (7)
days after You sign to change your
mind and revoke the Agreement, in which case a written notice of
revocation must be delivered to the Company’s Chief Human
Resources Officer, AutoWeb, Inc., 18872 MacArthur Blvd. Suite 200,
Irvine, California 92612-1400, on or before the seventh (7th) day
after your delivery of this signed Release to the Company (or on
the next business day if the seventh calendar day is not a business
day). You understand that this Release will not become effective or
enforceable until after that seven (7) day period has passed. If
You revoke this Release, this Release shall not be effective or
enforceable as to any rights You may have under this Release. In
the event that You revoke this Release, You will not be entitled to
the payments and benefits specified in Paragraph 2.
(b) You
acknowledge that You have received the group information of
employees included in the Company’s ____________ group
termination program, the eligibility factors for participation in
the program, and the time limits for participation in the program.
You also acknowledge that You have received lists of the ages and
job titles of employees eligible or selected for the program and
employees not eligible or selected for the group termination
program. This information is set forth on Appendix A attached
hereto and incorporated herein by reference.
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:_____________
_____________________________________
Joseph
P. Hannan
Dated:_____________
AutoWeb Inc.
By: __________________________________
(Officer
Name)
(Title)
