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EXHIBIT 10.4
AMENDED AND RESTATED EMPLOYMENT AND SEVERANCE AGREEMENT
This Employment and Severance Agreement ("Agreement") is made and
entered into at Irvine, California, as of the 4th day of March 1999, between
autobytel.com inc., a corporation duly organized under the laws of the State of
Delaware (the "Company"), with offices at 18872 MacArthur Blvd, Irvine,
California, 92612-1400 and Michael J. Lowell (hereinafter referred to as
"Lowell" or "Employee"), domiciled at 32942 Barque Way, Dana Point, California
92629.
RECITALS
WHEREAS: Employee and the Company entered into a Severance Agreement
dated January 1, 1998 (the "Severance Agreement".)
WHEREAS: Each of the Employee and the Company desire to terminate the
Severance Agreement and agree that Employee shall hereafter be
employed as the Senior Vice President, Development, subject to
the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with reference to the above recitals, the parties hereby
agree as follows:
ARTICLE 1
TERM OF EMPLOYMENT
The Company hereby employs Lowell as Senior Vice President Development
of the Company and Lowell hereby accepts such employment by the Company
commencing from the date of this Agreement (the "Commencement Date").
ARTICLE 2
DUTIES AND OBLIGATIONS
2.1 During the Term of this Agreement, Lowell shall: (i) devote his
entire time, attention and energies to the business of the Company; (ii) shall
use his best efforts to promote the interests of the Company; (iii) shall
perform all functions and services as Senior Vice President Development of the
Company; and (iv) shall act in accordance with the policies and directives of
the Company as determined from time to time by its President and Chief Executive
Officer.
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2.2 Lowell covenants and agrees that he shall not engage in any other
business duties or pursuits whatsoever, or directly or indirectly render any
services of a business, commercial, or professional nature to any other person
or organization, including, but not limited to, providing services to any
business that is in competition with or similar in nature to the Company,
whether for compensation or otherwise, without the prior written consent of the
President and Chief Executive Officer of the Company. However, the expenditure
of reasonable amounts of time for educational, charitable, or professional
activities shall not be deemed a breach of this Agreement, if those activities
do not materially interfere with the services required under this Agreement, and
shall not require the prior written consent of the Company's Board of Directors.
Notwithstanding anything herein contained to the contrary, this Agreement shall
not be construed to prohibit Lowell from making passive personal investments or
conducting private business affairs if those activities do not materially
interfere with the services required hereunder.
ARTICLE 3
COMPENSATION
3.1 As compensation for the services to be rendered by Lowell pursuant
to this Agreement, the Company hereby agrees to pay Lowell a salary at the rate
of One Hundred and forty Thousand Dollars ($140,000.00) per year, payable in
twenty-six (26) equal bimonthly installments of Seven Thousand Three Hundred and
Seven Dollars and Seventy Cents ($5,384.62), each at such times or on such dates
that employees of the Company are regularly and customarily paid. In the event
of termination of this Agreement pursuant to Article 6 hereof (other than a
termination pursuant to Section 6.2), Lowell shall be entitled to receive only
that portion of the yearly salary earned by Lowell up to the date of termination
and applicable accrued vacation.
3.2 The Company shall have the right to deduct or withhold from the
compensation due to Lowell hereunder any and all sums required for federal
income and social security taxes and all state or local taxes now applicable or
that may be enacted and become applicable during the Term.
ARTICLE 4
EMPLOYEE BENEFITS
4.1 The Company agrees that Lowell shall be entitled to all ordinary and
customary perquisites afforded to employees of the Company, at the Company's
sole expense (except to the extent employee contribution may be required under
the Company's benefit plans as they may now or hereafter exist).
4.2 Lowell shall be entitled to the greater of: (a) two (2) weeks of
paid vacation for each year of his employment hereunder, or (b) the number of
vacation days provided for under the Company's then-current vacation policy;
provided, however, that any accrued but unused vacation time shall accumulate
and carry over into
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successive years of employment with the Company, for a period not to exceed two
(2) successive years of employment hereunder.
4.3 Lowell shall be entitled to one-half (1/2) day per month, or six (6)
days per year, of paid sick leave for each year of his employment hereunder;
provided, however, that any unused sick leave shall not accumulate and carry
over into successive years of employment with the Company.
ARTICLE 5
BUSINESS EXPENSES
5.1 The Company shall promptly pay or reimburse Lowell for all
reasonable and authorized business expenses incurred by Lowell during the Term;
such payment or reimbursement shall not be unreasonably withheld so long as said
business expenses have been incurred for and promote the business of the Company
and are normally and customarily incurred by employees in comparable positions
at other comparable businesses in the same or similar market.
5.2 The Company shall reimburse Lowell for the use of his personal
vehicle for business-related mileage at the reimbursement rate approved by the
United States Internal Revenue Service, as such rate may change from time to
time. Notwithstanding the foregoing, the Company shall not reimburse Lowell for
mileage traveled to the Company's office from Lowell's residence, or from the
Company's office to Lowell's residence. Nothing contained in this Section 5.2
shall be construed as requiring the Company to reimburse Lowell for the cost of
gasoline, maintenance, or other expense relating to his motor vehicle.
5.3 As a condition to reimbursement, Lowell shall furnish to the Company
adequate records and other documentary evidence required by federal and state
statutes and regulations for the substantiation of each expenditure as an income
tax deduction. Lowell acknowledges and agrees that failure to furnish the
required documentation may result in the Company denying all or part of the
expense for which reimbursement is sought.
ARTICLE 6
TERMINATION OF EMPLOYMENT
6.1 Termination for Cause. The Company may, during the Term, without
notice to Lowell, terminate this Agreement and discharge Lowell for cause,
whereupon the respective rights and obligations of the parties hereunder shall
terminate; provided, however, that the Company shall immediately pay Lowell any
amount due and owing pursuant to Articles 3, 4, and 5, prorated to the date of
termination. As used herein, the
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term "for cause" shall refer to the termination of Lowell's employment as a
result of any one or more of the following:
6.1.1 Any conviction of Lowell for a felony or any crime
involving moral turpitude, in which event Lowell agrees to resign from
employment with the Company and to release the Company from all further
obligations under this Agreement, except for those obligations set forth in
Article 6 herein above;
6.1.2 Breach of his fiduciary duties to the Company for the
purpose of and inuring to his own pecuniary benefit;
6.1.3 Failure to consistently and competently discharge his
duties under this Agreement or as assigned by the Company from time to time
which failure continues for thirty (30) days following written notice from the
Company detailing the Company's expectations of Lowell's performance and the
area or areas in which such expectations have not been met.
6.2 Termination Without Cause. Anything in this Agreement to the
contrary notwithstanding, the Company shall have the right, at any time in its
sole and subjective discretion, to terminate this Agreement without cause upon
prior written notice to Lowell in accordance with Section 6.4 herein below. The
term "termination without cause" shall mean the termination of Lowell's
employment for any reason other than those expressly set forth in Section 6.1,
or no reason at all, and shall also mean (i) the permanent or quasi-permanent
assignment to duties grossly inappropriate for a senior vice president and (ii)
the Company's decision to relocate Lowell from the Company's offices located at
18872 MacArthur Boulevard, Irvine, California, to 92612-1400 to any other
location in excess of fifty (50) miles beyond the geographic limits of Irvine,
California, without Lowell's consent.
6.3 Severance Amount. In the event the Company shall exercise the
termination right granted pursuant to Section 6.2 herein above, the Company
shall, within Thirty (30) Days of notice of termination to Lowell, pay to
Lowell, in a single lump-sum payment, the amount set forth below corresponding
to the effective date of any such termination (the "Severance Amount"):
i. If the effective date of termination occurs during January 1999,
then the Severance Amount shall be two hundred and sixty four
thousand one hundred and sixty seven dollars ($264,167.00) less
any applicable Federal and State taxes;
ii. If the effective date of termination occurs during February 1999,
then the Severance Amount shall be two hundred and forty eight
thousand, three hundred and thirty four dollars ($248,334.00)
less any applicable Federal and State taxes;
iii.If the effective date of termination occurs during March 1999,
then the Severance Amount shall be two hundred and thirty two
thousand, five hundred and one dollars ($232,501.00) less any
applicable Federal and State taxes;
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iv. If the effective date of termination occurs during April 1999,
then the Severance Amount shall be two hundred and sixteen
thousand, six hundred and sixty eight dollars ($216,668.00) less
any applicable Federal and State taxes;
v. If the effective date of termination occurs during May 1999, then
the Severance Amount shall be two hundred thousand, eight hundred
and thirty five dollars ($200,835.00) less any applicable Federal
and State taxes;
vi. If the effective date of termination occurs during June 1999,
then the Severance Amount shall be one hundred and eighty five
thousand and two dollars ($185, 002.00) less any applicable
Federal and State taxes;
vii.If the effective date of termination occurs during July 1999,
then the Severance Amount shall be one hundred and sixty nine
thousand, one hundred and sixty nine dollars ($169, 169.00) less
any applicable Federal and State taxes;
viii. If the effective date of termination August 1999, then the
Severance Amount shall be one hundred and fifty three thousand,
three hundred and thirty six dollars ($153,336.00) any applicable
Federal and State taxes;
ix. If the effective date of termination occurs during September
1999, then the Severance Amount shall be one hundred and thirty
seven thousand, five hundred and three dollars ($137,503.00) less
any applicable Federal and State taxes;
x. If the effective date of termination occurs during October 1999,
then the Severance Amount shall be one hundred and twenty one
thousand, six hundred and seventy dollars ($121,670.00) less any
applicable Federal and State taxes;
xi. If the effective date of termination occurs during November 1999,
then the Severance Amount shall be one hundred and five thousand,
eight hundred and thirty seven dollars, ($105,837.00) less any
applicable Federal and State taxes;
xii.If the effective date of termination occurs during December
1999, then the Severance Amount shall be ninety thousand and four
dollars ($90,004.00) less any applicable Federal and State taxes;
xiii. If the effective date of termination is after January 1, 2000
and prior to the end of the Term of this Agreement, the Severance
Amount shall be ninety thousand dollars ($90,000.00) less any
applicable Federal and State taxes.
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6.4 Notice of Termination. In the event that the Company elects to
exercise its rights to terminate Lowell's employment without cause pursuant to
Section 6.2 of the Agreement, the Company shall provide notice of such
termination as follows:
i. Should termination occur prior to May 1, 1999, the Company shall
provide one hundred and eighty (180) days written notice.
ii. Should termination occur between May 1, 1999, and July 1, 1999,
the Company shall provide ninety (90) days written notice.
iii.Should termination occur between July 1, 1999 and September 30,
1999, the Company shall provide sixty (60) days written notice.
iv. Should termination occur on October 1, 1999 or thereafter for the
remainder of the Term of this Agreement, the Company shall
provide thirty (30) days written notice.
6.5 Death or Disability. Anything in this Agreement to the contrary
notwithstanding, upon the death or disability of Lowell, the Company shall pay
to Lowell or his successors, heirs, designees, or assigns, the amount that would
have been due and owing to Lowell for the remainder of the Term.
ARTICLE 7
RESTRICTIVE COVENANTS
7.1 During the Term and following termination of this Agreement, Lowell
agrees that, without the Company's prior written consent, he will not use or
disclose to any person, firm, association, partnership, entity or corporation,
other than in the course of his employment hereunder acting for and on behalf of
the Company, any information concerning: (a) the business operations or internal
structure of the Company; (b) the customers of the Company; (c) the financial
condition of the Company; and (d) other confidential information pertaining to
the Company, including without limitation, trade secrets, technical data,
marketing analyses and studies, operating procedures, customer and/or inventor
lists, or the existence or nature of any of the Company's agreements; provided,
however, that Lowell shall be entitled to disclose such information: (a) to the
extent the same shall have otherwise become publicly available (unless made
publicly available by Lowell); or (b) during the course of or in connection with
any litigation, arbitration, or other proceeding based upon or in connection
with the subject matter of this Agreement.
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7.2 Employee acknowledges that a breach or violation of the covenants
contained in Section 7.1 above will cause severe and irreparable harm to the
Company and that recovery of monetary damages by the Company may not constitute
an adequate remedy. Accordingly, in the event of any breach or violation of such
covenants by Employee, the Company reserves the right to specifically enforce
Section 7.1 of this Agreement, or at its election, to seek an injunction
enjoining any such acts, without requirement of bond or showing of actual
damages, provided that nothing contained herein shall limit or restrict any
other rights or remedies that the Company may have at law or in equity. Each of
the rights and remedies of the Company enumerated in this Section shall be
independent of the other, and shall be in addition to, and not in lieu of, any
other rights and remedies available to the Company under law or in equity.
ARTICLE 8
GENERAL PROVISIONS
8.1 This Agreement is intended to be the final, complete and exclusive
agreement between the parties relating to the employment of Lowell by the
Company and all prior or contemporaneous understandings, representations and
statements, oral or written, are merged herein and that the Severance Agreement
between Employee and the Company dated January 1, 1998 is terminated and of no
further force or effect.
8.2 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.
8.3 No modification, waiver, amendment, discharge or change of this
Agreement shall be valid unless the same is in writing and signed by the party
against whom enforcement of such modification, waiver, amendment, discharge, or
change is sought.
8.4 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.
8.5 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 telegram, tested
telex or cable, or sent prepaid by registered or certified mail with return
receipt requested and shall be deemed given (i) if personally served, when
delivered to the person to whom such notice is addressed, (ii) if given by
telegram, telex or cable, when sent, or (iii) if given by mail, four (4)
business days following deposit in the United States mail. Any notice given by
telegram, telex or cable shall be confirmed in writing within forty-eight (48)
hours after being sent. Such notices
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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: auytobytel.com inc.
18872 MacArthur Boulevard
Irvine, California 92612-1400
Attn: Chief Executive Officer
If to Employee: Michael J. Lowell
32942 Barque Way
Dana Point, CA 92629
8.6 Dispute Resolution, Forum. ANY DISPUTE OR CLAIM ARISING HEREUNDER
SHALL BE SUBMITTED TO BINDING ARBITRATION, and conducted in accordance with the
National Rules for the Resolution of Employment Disputes as published by the
American Arbitration Association, ("AAA"). The parties hereunder further agree:
(i) Any request for arbitration shall be made in writing and must be made within
a reasonable time after the claim, dispute or other matter in question has
arisen; (ii) the arbitrator or arbitrators appointed must be former or retired
judges or attorneys at law with at least ten (10) years experience in the area
employment law; (iii) all proceedings involving the parties shall be reported by
a certified shorthand reporter and written transcripts of any such proceedings
shall be prepared and made available to the parties (iv) the arbitrator or
arbitrators decision must be made within ninety (90) days from the date the
arbitration proceedings are initiated; (v) the prevailing parties shall be
awarded reasonable attorney's fees, expert and non-expert witness costs, and
expenses and other costs incurred in connection with the arbitration, unless the
arbitrator or arbitrators, for good cause, determine otherwise, (vii) costs and
fees of the arbitrator or arbitrators shall be borne by the non-prevailing
party, unless the arbitrator or arbitrators determine otherwise, (viii) the
award or decision of the arbitrator or arbitrators, which may include equitable
relief, shall be final and judgment may be entered on such award in accordance
with applicable law in any court having jurisdiction over the matter. The
parties agree that in connection with any such arbitration, that the General
Principles of Evidence, as enacted or hereafter amended, beginning at Section
1856 and continuing to Section 1866, of the California Code of Civil Procedure;
and all provisions of the Civil Discovery Act, as enacted or hereafter amended,
beginning at Section 2016, et seq., of the California Code of Civil Procedure
shall apply.
8.7 The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto.
8.8 This Agreement shall be construed and enforced in accordance with
the laws of the State of California.
8.9 This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one
instrument.
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8.10 The provisions of this Agreement are agreed to be severable, and if
any provision or application thereof, is held invalid or unenforceable, then
such holding shall not affect any other provision or application.
8.11 As used herein, and as the circumstances require, the plural term
shall include the singular, the singular shall include the plural, the neuter
term shall include the masculine and feminine genders, and the feminine term
shall include the neuter and the masculine genders.
8.12 Each party hereto shall pay its or their own expenses incident to
the negotiation, preparation and consummation of this Agreement, including all
fees and expenses of its or their respective counsel.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY
AUTOBYTEL.COM INC.
By: /s/ MARK W. LORIMER
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Mark W. Lorimer
President
Chief Executive Officer
EMPLOYEE
/s/ MICHAEL J. LOWELL
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Michael J. Lowell
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