Exhibit 10.2
SEPARATION AGREEMENT AND
RELEASE
It is hereby agreed by and between
you, Monty Houdeshell (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 February 28, 2009,
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 January 20, 2007, as amended on
December 20, 2008 (“ 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 your
officer positions and any Board of Directors positions with the
Company and each of its subsidiaries, 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 (“ 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
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.
6. 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
obligat
