Exhibit 10.3
SEPARATION AGREEMENT AND
RELEASE
It is hereby agreed by and between
you, James E. Riesenbach (for yourself, your spouse, family, agents
and attorneys) (jointly, “ You ”), and Autobytel
Inc., its predecessors, successors, affiliates, directors,
officers, shareholders, fiduciaries, insurers, employees and agents
(jointly, the “ Company ”), as
follows:
1. You acknowledge that your
employment with the Company ended effective December 10, 2008,
and that you will perform no further duties, functions or services
for the Company subsequent to that date.
2. You acknowledge and agree that
you have received all vacation pay and other compensation due you
from the Company as a result of your employment with the Company
and your separation from employment, including, but not limited to,
all amounts required under your Employment Agreement with the
Company dated March 1, 2006, as amended on December 10,
2008 (the “ Employment Agreement ”), other than
those amounts payable pursuant to Paragraph 3 below and those
amounts, if any, payable pursuant to Sections 3.5, 5.1, 5.2 and 5.3
or Article 7 of the Employment Agreement if required by the terms
of such sections or article. You acknowledge and agree that the
Company owes you no additional wages, commissions, bonuses,
vacation pay, severance pay, expenses, fees, or other compensation
or payments of any kind or nature, other than as provided in this
Agreement and those amounts, if any, payable pursuant to Sections
3.5, 5.1, 5.2 and 5.3 or Article 7 of the Employment Agreement if
required by the terms of such sections or article. All benefits for
which you are eligible pursuant to the Employment Agreement will
remain in effect for the periods set forth therein.
3. In exchange for your promises in
this Agreement and the Employment Agreement, including the release
of claims set forth below, if you (A) sign and do not revoke
this Agreement and (B) you resign effective immediately from
the Board of Directors of the Company, the Company will pay you all
cash severance payments due to you under Section 6.2 of the
Employment Agreement, minus legally required state and federal
payroll deductions, within three (3) business days of the date
all applicable revocation periods that you may have relating to
this Separation Agreement and Release expire without you revoking
this Separation Agreement and Release. All other payments due to
you under Section 6.2 of the Employment Agreement, minus
legally required state and federal payroll deductions, shall be
paid to you in the time periods required by the Employment
Agreement. You and the Company have and will continue to take
consistent positions in each party’s reasonable tax reporting
in respect of Section 409A of the Internal Revenue Code of
1986 (the “Code”) as applied to payments to be made to
you under the Employment Agreement. You are still liable for all
taxes and penalties arising under Section 409A of the Code, if
any, that may result from any payments or benefits that you receive
pursuant to the Employment Agreement. Accordingly, if there is any
liability for tax pursuant to Section 409A of the Code, it
shall be your sole responsibility and liability for all such taxes
and penalties and you agree to indemnify and hold the Company
harmless from any liability the Company may incur for not reporting
or withholding taxes under Section 409A of the Code or any
similar state or local law in connection with the payments and
benefits under this Separation Agreement and Release or the
Employment Agreement. In connection with entering into the
Employment Agreement you were represented by independent counsel
and tax advisors. The Company has not and is not now advising you
in respect of any tax applicable to payment due to you under the
Employment Agreement.
4. 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, 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.
5. You hereby represent that, other
than those materials you have returned to the Company pursuant to
Paragraph 4 of this Agreement, you have not copied or caused to be
copied, and have not printed-out or caused to be printed-out, any
software, computer disks, 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
oth
