Blueprint






Exhibit 10.1






AutoWeb,
Inc.

 


Employment
Agreement

 


This
Employment Agreement (“Agreement”) entered into effective
as of April 12, 2018 (“Effective Date”), between AutoWeb,
Inc., a Delaware corporation (“AutoWeb” or “Company”), and Jared R. Rowe
(“Executive”).
Executive and AutoWeb are sometimes referred to herein individually
as a “Party” and
collectively as the “Parties.”

 


Background

 


AutoWeb
wishes to retain the services of Executive, and Executive wishes to
be employed by the Company on the terms and subject to the
conditions set forth in this Agreement.

 


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 8.

 

(b) “Arbitration Agreement” means that
certain Mutual Agreement to Arbitrate dated as of the Effective
Date and entered into by and between AutoWeb and Executive
concurrently with the execution and delivery of this Agreement by
the Parties.

 

(c) “Benefits” means all Company
medical, dental, vision, life and disability plans in which
Executive participates under Section 4(b).

 

(d) “Board” means the Company’s
Board of Directors.

 

(e) “Cause” means the termination of
the Executive’s employment by Company as a result of any one
or more of the following:

 

(i) any conviction of,
or pleading of nolo contendre by, the Executive for any felony or
any crime involving moral turpitude;

 

(ii) any
willful misconduct of the Executive which has a materially
injurious effect on the business or reputation of the Company and
its affiliates;

 

(iii) Executive
engaging in any material act of dishonesty, fraud or
misrepresentation with respect to the Company or its
affiliates;

 

(iv) Executive’s
violation of any federal or state law, rule, regulation or order
applicable to the Company or its business or affiliates, which
results in material harm to the Company, which violation is not
cured within thirty (30) days following written notice from the
Company detailing such violation;

 

(v) a material and
continuous failure to perform Executive’s employment duties
and responsibilities 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 Executive’s Disability or ill
health.

 


For
purposes of this definition of Cause, no act or failure to act, on
the part of the Executive, shall be considered
“willful” if it is done, or omitted to be done, by the
Executive in good faith and with the reasonable belief that
Executive’s action or omission was in the best interests of
the Company. For
purposes of clarity, Executive’s termination of employment
due to death or Disability is not, by itself, deemed to be a
termination by the Company other than for Cause or a resignation
for Good Reason.


 




 

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(f)
“Change
in Control” means the occurrence of any one of the
following events:

 


(i)      During
any twenty-four (24) month period, individuals who, as of the
beginning of such period, constitute the Board (“Incumbent Directors”) cease for
any reason to constitute at least a majority of the Board, provided
that any person becoming a director subsequent to the beginning of
such period whose election or nomination for election was approved
by a vote of at least a majority of the Incumbent Directors then on
the Board (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a nominee
for director, without written objection to such nomination) will be
an Incumbent Director; provided,
however, that no individual initially elected or nominated
as a director of the Company as a result of an actual or threatened
election contest with respect to directors or as a result of any
other actual or threatened solicitation of proxies by or on behalf
of any person other than the Board will be deemed to be an
Incumbent Director;

 


(ii)                 Any
“person” (as
such term is defined in the Securities Exchange Act of 1934, as
amended (“Exchange
Act”), and as used in Sections 13(d)(3) and 14(d)(2)
of the Exchange Act) is or becomes a “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined
voting power of the Company’s then outstanding securities
eligible to vote for the election of the Board (“Company Voting Securities”);
provided, however, that the
event described in this Section 1(f)(ii) will not be deemed to be a
Change in Control by virtue of any of the following acquisitions:
(1) by the Company or any Subsidiary, (2) by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any Subsidiary, (3) by any underwriter temporarily holding
securities pursuant to an offering of such securities, (4) pursuant
to a Non-Qualifying Transaction, as defined in Section 1(f)(iii),
or (5) the acquisition of additional stock by any one person, who
owns more than 50% of the total voting power of the stock of the
Company prior to such acquisition; or

 


(iii)                 The
consummation of a merger, consolidation, statutory share exchange
or similar form of corporate transaction involving the Company or
any of its Subsidiaries that requires the approval of the
Company’s stockholders, whether for such transaction or the
issuance of securities in the transaction (a “Business Combination”), unless
immediately following such Business Combination: (i) more than 50%
of the total voting power of (A) the corporation resulting from
such Business Combination (“Surviving Corporation”), or (B) if
applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of 100% of the voting
securities eligible to elect directors of the Surviving Corporation
(“Parent
Corporation”), is represented by Company Voting
Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which
such Company Voting Securities were converted pursuant to such
Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting power
of such Company Voting Securities among the holders thereof
immediately prior to the Business Combination, (ii) no person
(other than any employee benefit plan (or related trust) sponsored
or maintained by the Surviving Corporation or the Parent
Corporation), is or becomes the beneficial owner, directly or
indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) and (iii) at least a majority of the members
of the board of directors of the Parent Corporation (or, if there
is no Parent Corporation, the Surviving Corporation) following the
consummation of the Business Combination were Incumbent Directors
at the time of the Board’s approval of the execution of the
initial agreement providing for such Business Combination (any
Business Combination which satisfies all of the criteria specified
in (i), (ii) and (iii) above is deemed to be a “Non-Qualifying Transaction”);
or

 


(iv)                 The
stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or the consummation of a sale of all
or substantially all of the Company’s assets provided, however, that any such event
shall not constitute a Change in Control (“Liquidation or Asset Sale Event”)
(i) if immediately following the consummation of such event more
than 50% of the total voting power of (A) the corporation resulting
from such event (“Acquirer
Corporation”), or (B) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial
ownership of 100% of the voting securities eligible to elect
directors of the Acquirer Corporation (“Parent Acquirer Corporation”), is
represented by Company Voting Securities that were outstanding
immediately prior to such Liquidation or Asset Sale Event (or, if
applicable, is represented by shares into which such Company Voting
Securities were converted pursuant to such Liquidation or Asset
Sale Event); (ii) the transfer is to a person, that owned, directly
or indirectly, 50% or more of the total voting power of the Company
prior to the transfer or to an entity, at least 50% of the total
voting power of which is owned, directly or indirectly, by such a
person.


 




 

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For
purposes of this definition of Change in Control, the term
“Subsidiary”
means any corporation (other than the Company) in an unbroken chain
of corporations beginning with the Company if, at the relevant time
each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in the chain. For purposes of this definition, the
term “corporation” has the meaning prescribed in
Section 7701(a)(3) of the Code and the regulations thereunder.
Notwithstanding the foregoing, for each payment or benefit pursuant
to this Agreement that constitutes deferred compensation under
Section 409A of the Code, as defined below, and to the extent
required to avoid accelerated taxation and/or tax penalties under
Section 409A of the Code, a Change in Control shall be deemed to
have occurred with respect to such payment or benefit only if a
change in the ownership or effective control of the Company or a
change in ownership of a substantial portion of the assets of the
Company shall also be deemed to have occurred under Section 409A of
the Code.

 

(g)
“COBRA” means the Consolidated
Omnibus Budget Reconciliation Act, as amended, and the rules and
regulations promulgated thereunder.

 

(h)
“COBRA Continuation Period” means
the up to eighteen-month COBRA continuation period set forth in
Section 5(b) and Section 5(c).

 

(i)
“Code” means the Internal Revenue
Code of 1986, as amended, and the rules and regulations promulgated
thereunder.

 

(j)
“Common Stock” means the
Company’s common stock, par value $0.001 per
share.

 

(k)
“Disability” means either (i) the
Participant is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment that can be expected to result in death or can be
expected to last for a continuous period of not less than 12
months, or (ii) the Participant is, by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months, receiving income replacement benefits
for a period of not less than three months under an accident and
health plan of the Company or any Affiliate.

 

(l)
“Employment Term” The term of this
Agreement is the period commencing with the Effective Date and
ending on the date on which Executive’s employment with the
Company terminates in accordance with this Agreement or
otherwise.

 

(m)
“Executive’s Primary Work
Location” means AutoWeb’s headquarters located
at 18872 MacArthur Boulevard, Suite 200, Irvine, California
92612-1400.

 

(n)
“Good Reason” means any act,
decision or omission by the Company without the Executive’s
consent that: (A) reduces Executive’s Annual Base Salary,
Target Bonus or Travel and Housing Accommodation Monthly Allowance
as in existence as of the date hereof or as of the date prior to
any such change, whichever is more beneficial for Executive at the
time of the act, decision, or omission by the Company; (B)
materially diminishes the Executive’s title, authority,
duties, or responsibilities from the authority, duties or
responsibilities Executive has as the Company’s chief
executive officer; (C) Executive reporting to anyone other than the
Board or, if the Company is acquired, the board of directors of the
ultimate parent of the acquiring company; (D) the failure by a
successor to assume this Agreement; (E) only if Executive has
relocated to the Irvine, California area, either relocates the
Executive’s place of employment from Executive’s
Primary Work Location to any other location in excess of a forty
(40) mile radius from the Executive’s Primary Work Location
or requires any such relocation as a condition to continued
employment by Company or Successor Company; (F) requires Executive
to relocate from Atlanta, GA, or (G) involves or results in any
material breach of this Agreement by the Company or Successor
Company, 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 Executive. Notwithstanding the foregoing, no event shall
constitute “Good Reason” unless (i) the Executive first
provides written notice to the Company within ninety (90) days of
the Executive’s knowledge of 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 event(s) within thirty (30) days after Company’s
receipt of such written notice.

 




 

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(o) “Inducement Stock Option Award
Agreement” means the Inducement Stock Option Award
Agreement dated as of the Effective Date and entered into by and
between AutoWeb and Executive concurrently with the execution and
delivery of this Agreement by the Parties, which agreement provides
for the grant of options to acquire One Million (1,000,000.00)
shares of Common Stock on the terms and conditions set forth in
such agreement.

 

(p) “Inventions Assignment Agreement”
means the Inventions Assignment Agreement dated as of the Effective
Date and entered into by and between AutoWeb and Executive
concurrently with the execution and delivery of this Agreement by
the Parties.

 

(q) “Separation from Service” or
“Separates from
Service” shall mean Executive’s termination of
employment, as determined in accordance with Treas. Reg. §
1.409A-1(h). Executive shall be considered to have experienced a
termination of employment when the facts and circumstances indicate
that Executive 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
Executive 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 Executive (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 Executive has been providing services to the Company for
less than thirty six (36) months). If Executive is on military
leave, sick leave, or other bona fide leave of absence, the
employment relationship between Executive 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
Executive 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 Executive 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 paragraph, a leave of
absence shall be considered a bona fide leave of absence only if
there is a reasonable expectation that Executive will return to
perform services for the Company. For purposes of determining
whether Executive 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).

 

(r) “Successor Company” means any
successor to AutoWeb or substantially all of AutoWeb’s
assets.

 

(s) “Termination Without Cause” means
termination of Executive’s employment with the Company (i) by
the Company (a) for any reason other than those reasons expressly
set forth in the definition of “Cause,” or (b) for no
reason at all; or (ii) by Executive for Good Reason within thirty
(30) days following the Company’s failure to cure the event
or events that constitute Good Reason; provided, however, that
Executive’s Separation from Service in connection with a
Change in Control shall not constitute a Termination Without Cause
if Executive is offered employment with the Successor Company under
terms and conditions, including position, salary and other
compensation, and benefits, that would not otherwise provide
Executive the right to terminate Executive’s employment for
Good Reason under this Agreement.

 


(u)
“Travel
and Housing Accommodation Monthly Allowance” means a
monthly allowance of Fifteen Thousand Dollars ($15,000), less
applicable tax withholdings, for Executive’s (i) personal
housing in the Irvine, California area; and (ii) air/ground
travel between Atlanta, Georgia and Irvine,
California.

 

2.         
Term
of Employment. This Agreement shall govern Executive’s
employment during the Employment Term. Executive’s employment
is at will and not for a specified term and may be terminated by
the Company or Executive 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 Employment Term and cannot be modified except by a
written amendment to this Agreement that is executed by both
parties (which in the case of the Company, must be executed by the
Company’s Chairman of the Board or Chief Legal Officer) and
that expressly negates the “at-will” employment status.
Subject to the terms and conditions set forth in this Agreement,
Executive may be entitled to severance and other compensation and
benefits upon the occurrence of certain terminations of
Executive’s employment.

 

 




 

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3.         
Nature
of Duties.

 


(a)
During
Executive’s employment under this Agreement, Executive shall
be the Company’s President and Chief Executive Officer.
Executive shall have all of the customary powers and duties
associated with such positions, and shall be subject to the
Company’s written policies, procedures, and approval
practices provided to the Executive, including without limitation
hiring and employment policies and codes of conduct and ethics as
in effect from time to time governing executives of the Company.
Executive will perform Executive’s duties faithfully and to
the best of his ability and will devote Executive’s full
business efforts and substantially all of his business time to the
performance of Executive’s duties and responsibilities for
the Company, provided that Executive shall be permitted to (i)
manage Executive’s personal, financial and legal affairs,
(ii) participate in trade associations, (iii) serve on the board of
directors of up to two for-profit organizations, and (iv) serve on
the board of directors of not-for-profit or tax-exempt charitable
organizations, in each case, subject to compliance with this
Agreement and provided that such activities do not materially
interfere with Executive’s performance of Executive’s
duties and responsibilities hereunder. Executive shall report
directly to the Board. Executive’s primary work location will
be at the Executive’s Primary Work Location.

 


(b)
Executive
will be appointed to be a Board member effective as of the
Effective Date, and Executive hereby consents to such appointment
and to be a Board member in all Company filings with the Securities
and Exchange Commission or other governmental filings. The Company shall cause the
nomination of Executive (to the extent that Executive would be up
for election at such time) in connection with any subsequent proxy
statement or information statement pursuant to which the Company
intends to solicit stockholders with respect to the election of
directors and to have the Board recommend in connection with such
subsequent proxy statement or information statement that the
stockholders of the Company vote for the election of Executive.
Notwithstanding the foregoing, the nomination, appointment and
election of Executive to the Board shall be subject to all legal
requirements and the Company’s corporate governance standards
regarding service as a director of the Company. Upon the
termination of Executive’s employment for any reason, unless
otherwise requested by the Board, Executive will be deemed to have
resigned from the Board (and all other positions held at the
Company and its affiliates) voluntarily, without any further
required action by Executive, as of the end of the Employment Term,
and Executive, at the Board’s request, will execute any
documents necessary to reflect Executive’s
resignation.

 


4.         
Compensation,
Benefits and Expenses.

 


(a)
As
compensation for the services to be rendered by Executive pursuant
to this Agreement, the Company hereby agrees to pay Executive a
base annual salary (“Base
Annual Salary”) at a rate equal to Five Hundred Fifty
Thousand Dollars ($550,000.00) during the Employment Term.
Executive’s Base Annual Salary shall be reviewed by the Board
(or the Compensation Committee thereof) at least annually and may
be increased by an amount approved by the Board (or the
Compensation Committee thereof) in its sole discretion, and
Executive agrees that the Company has not made any promises or
guaranty of any increase in Base Annual Salary during the
Employment Term. The Company may not reduce Executive’s Base
Annual Salary during the Employment Term without Executive’s
prior written consent. The Base Annual Salary shall be paid in
substantially equal bimonthly installments, in accordance with the
normal payroll practices of the Company. Executive will not receive
any compensation for Executive’s service as a member of the
Company’s Board or any of its committees.

 


(b)
Executive
shall be eligible to receive, at the time and in the form provided
for in the Company’s annual incentive compensation plan, an
annual incentive compensation opportunity targeted at one hundred
percent (100%) of Executive’s Base Annual Salary
(“Target Bonus”)
based upon annual performance goals and the achievement of those
goals, as established and determined at least annually (and
consistently with the Company’s most recent proxy statement
disclosure of the standards for providing cash-based incentive
compensation) by the Board or the Compensation Committee of the
Board. Such performance goals may include Company-wide performance
objectives, divisional or departmental performance objectives,
and/or individual performance objectives, as the Board or the
Compensation Committee may determine in its discretion. The Company
may not reduce Executive’s targeted annual incentive
compensation opportunity percentage during the Employment Term
without Executive’s prior written consent. The amount of
annual incentive compensation payments, if any, that may be paid to
Executive will be: (i) determined in the reasonable discretion of
the Board or the Compensation Committee; (ii) paid prior to March
15 of the year following the year for which such bonus is earned,
in accordance with the Company’s normal payroll practices and
be subject to the usual, required tax withholding; and (iii)
subject to Executive’s continued employment with the Company
through December 31 of the year for which the bonus is payable.
Executive’s bonus for calendar year 2018 will equal
Executive’s actual payout under the Company’s 2018
incentive compensation plan based on actual performance for the
entire year (but shall not be less than 75% of Executive’s
Target Bonus) and prorated for the amount of time Executive was
employed by the Company during 2018.

 

 




 

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(c)
The Company
will pay Executive a signing bonus in the amount of Two Hundred
Fifty Thousand Dollars ($250,000.00), less applicable tax
withholdings, (“Signing
Bonus”). The
Signing Bonus will be paid to Executive within thirty (30) days of
the Effective Date. If prior to the first anniversary date of the
Effective Date, Executive shall voluntarily terminate
Executive’s employment with the Company without Good Reason
or the Company terminates Executive’s employment with the
Company for Cause, Executive shall repay the pro-rata portion
(determined based on the quotient of the number of days elapsed
since the Effective Date and 365) Signing Bonus to the Company
within thirty (30) days of the effective date of Executive’s
termination of employment.

 


(d)
Concurrently
with the execution and delivery of this Agreement by the Parties,
the Parties have entered into the Inducement Stock Option Award
Agreement. Executive will be eligible to receive additional awards
of stock options, restricted stock or other equity pursuant to any
plans or arrangements the Company may have in effect from time to
time. The Board or the Compensation Committee will determine in its
discretion whether Executive will be granted any such equity awards
and the terms of any such award in accordance with the terms of any
applicable plan or arrangement that may be in effect from time to
time and consistent with other grants made by the
Company.

 


(e)
Executive
shall be entitled to all ordinary and customary benefits afforded
generally to executive employees of the Company (except to the
extent employee contribution may be required under the
Company’s benefit plans as they may now or hereafter exist),
which shall in no event be less than the benefits generally
afforded to the other executive employees of the Company as of the
date hereof or from time to time, but in any event shall include
any qualified or non-qualified pension, profit sharing and savings
plans, any death benefit and disability benefit plans, life
insurance coverages, any medical, dental, health and welfare plans
or insurance coverages, and any stock purchase programs that are
adopted or maintained by the Company generally for executive
employees of the Company. The Company reserves the right to
terminate or change the benefit plans it offers to Company
executive employees at any time.

 


(f)
The Company
shall pay or reimburse Executive for all reasonable business
expenses incurred by Executive while employed under this Agreement
that are submitted in accordance with the Company’s expense
reimbursement policies and procedures. Executive’s business
expenses shall be subject to review and approval by the Chairman of
the Board in accordance with the Company’s expense
reimbursement policies and procedures.

 


(g)
Each month,
during the Employment Term, the Company will pay to Executive the
Travel and Housing Accommodation Monthly Allowance. Should
Executive elect to relocate to the Irvine, California area, the
Travel and Housing Accommodation Monthly Allowance will cease and
Company will pay actual moving costs from Atlanta, Georgia to the
Irvine, California area plus actual sales brokerage fees incurred
for the sale of Executive’s residence in Atlanta, Georgia,
such moving and relocation assistance not to exceed Two Hundred
Thousand Dollars ($200,000.00) in the aggregate. It is expressly
understood that at no point during the Employment Term Executive
shall be required to relocate from Atlanta, GA area.

 


(h)
Executive
shall be covered by the Company’s directors and officers
insurance policies and directors and officers indemnification
agreements on the same basis as the Company’s other senior
executive officers, as such insurance policies and coverage limits
and conditions and such indemnification agreements may exist from
time to time.

 


(i)
The Company
will pay directly to Skadden, Arps, Slate, Meagher & Flom for
reasonable and documented legal fees, not to exceed Fifty Thousand
Dollars ($50,000.00) incurred by Executive in the negotiation and
review of this Agreement, after the Company’s receipt of
appropriate documentation with respect to fees.

 

 




 

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(j)
During the
period commencing on the Effective Date and ending on the day
before the sixtieth day following the Effective Date, Executive
shall have the right to acquire in a direct private placement from
the Company up to One Million Dollars ($1,000,000.00) in shares of
the Company’s common stock, $0.001 per value per share. The
price of the shares shall be the closing price of the
Company’s common stock on The Nasdaq Capital Market on the
date Executive elects to exercise Executive’s right to
purchase the shares, with the purchase of the shares and delivery
of the payment for the shares to be made on the date Executive
notifies the Company of Executive’s exercise of the right to
acquire the shares. The exercise of such right, and the
Company’s obligations to issues the shares shall be subject
to compliance with applicable federal and state securities laws,
rules and regulations, including the availability of applicable
exemptions from registration or qualification, and Executive being
employed by the Company at the time of the issuance of the shares,
and conditioned on various requirements, including
Executive’s entering into a customary Company stockholder
agreement.

 


  5.         
Severance
Benefits and Conditions. All amounts payable hereunder shall
be subject to reduction for any employment and withholding taxes
that the Company determines are applicable, and shall be subject to
any applicable terms and conditions set forth in this Section 5,
and this Agreement generally, including without limitation Section
8.


 

(a)
Termination
Other Than Without Cause. In the event of Executive’s
Termination for Cause, resignation without Good Reason, death,
Disability, or any reason other than Termination Without Cause,
Executive shall be entitled to receive only the following
(“Accrued
Amounts”): (i) any amounts due and owing to Executive
as of Executive’s employment termination date with respect to
any Base Annual Salary, vested and payable bonuses or incentive
payments (including with respect to bonuses for the year preceding
the year of termination which remain unpaid as of the date of
termination), or unreimbursed business expense reimbursements; (ii)
any other payments required by applicable law (including payments
with respect to accrued and unused vacation, personal, sick and
other days); and (iii) any amount accrued and arising from
Executive’s participation in, or benefits accrued under any
employee benefit plans, programs or arrangements, which amounts
shall be payable in accordance with the terms and conditions of
such employee benefit plans, programs or arrangements. In addition,
(1) in case of Executive’s termination due to Disability,
within 30 days of termination, Executive will receive a lump sum
cash payment equal to Executive’s Target Bonus and (2) in
case of Executive’s termination due to death, within 30 days
of termination, Executive’s estate, will receive a lump sum
cash payment equal to Executive’s Base Annual Salary minus
the amount (but not less than zero) equal to the difference between
(i) the amount of life insurance proceeds payable to
Executive’s beneficiaries under Company-provided life
insurance policies and (ii) Executive’s Base Annual
Salary.

 

(b)
Termination
Without Cause. In the event of Executive’s Termination
Without Cause either before a Change in Control or more than
eighteen (18) months after a Change in Control, Executive shall be
entitled to (i) the Accrued Amounts; (ii) continued monthly Base
Annual Salary for twenty-four (24) months following the date of
Executive’s Termination Without Cause, at the rate of monthly
Base Annual Salary in effect immediately beforehand; (iii) for an
eighteen (18) month period, subject to Section 5(d) of this
Agreement, Benefits at the levels in effect before employment
terminates, including Company-paid COBRA premiums for any insurance
that is in effect for Executive and/or Executive’s dependents
before termination of Executive’s employment, and that
Executive elects to continue in accordance with COBRA; and (iv) the
amount of Executive’s annual incentive compensation plan
payout under Section 4(b) for the annual incentive compensation
plan year in which Executive’s date of termination occurred,
based on actual performance for the entire performance period and
prorated for the amount of time Executive was employed by the
Company prior to the date of termination during such plan
year.

 

(c)
Termination
Without Cause related to Change in Control. In the event of
Executive’s Termination Without Cause upon or within eighteen
(18) months after a Change in Control, Executive shall be entitled
to (i) the Accrued Amounts; (ii) a lump sum payment, paid in cash,
equal to two (2) times the sum of (1) Executive’s Base Annual
Salary and (2) Executive’s target annual incentive
compensation opportunity under Section 4(b), at the rate of Base
Annual Salary and the target annual incentive compensation
opportunity in effect immediately before such termination; (iii)
for the eighteen (18) month period following Executive’s
Termination Without Cause, subject to Section 5(d) of this
Agreement, Benefits at the levels in effect before employment
terminates, including Company-paid COBRA premiums for any insurance
that is in effect for Executive and/or Executive’s dependents
before termination of Executive’s employment, and that
Executive elects to continue in accordance with COBRA; and (iv)
Executive’s Target Bonus, at the rate of Base Annual Salary
and the Target Bonus in effect immediately before such termination,
prorated for the amount of time Executive was employed by the
Company prior to the date of termination during such plan
year.

 

 




 

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(d)
Special
Benefits Provisions.

 

(i)
With respect to
Benefits that are eligible for continuation coverage under COBRA,
in the event the Company is unable to continue Executive’s
and Executive’s eligible dependents’ (assuming such
dependents were covered by Company at the time of termination)
participation under the Company’s then existing insurance
policies for such Benefits, Executive may elect to obtain coverage
for such Benefits either by (1) electing COBRA continuation
benefits for Executive and Executive’s eligible dependents;
(2) obtaining individual coverage for Executive and
Executive’s eligible dependents (if Executive and
Executive’s eligible dependents qualify for individual
coverage); or (3) electing coverage as eligible dependents under
another person’s coverage (if Executive and Executive’s
eligible dependents qualify for such dependent coverage), or any
combination of the foregoing alternatives. Executive may also
initially elect COBRA continuation benefits and later change to
individual coverage or dependent coverage for Executive or any
eligible dependent of Executive, but Executive understands that if
continuation of Benefits under COBRA is not initially selected by
Executive or is later terminated by Executive, Executive will not
be able to return to continuation coverage under COBRA. The Company
shall pay directly or reimburse to Executive the monthly premiums
for the benefits or coverage selected by Executive, with such
payment or reimbursement not to exceed the monthly premiums the
Company would pay assuming Executive timely elected continuation of
benefits under COBRA. The Company’s obligation to pay or
reimburse for the Benefits covered by this Section 5(d) shall
terminate upon the earlier of (i) the end of the applicable
Company-paid COBRA Continuation Period; and (ii) Executive’s
employment by an employer that provides Executive and
Executive’s eligible dependents with coverage substantially
similar to such Benefits as provided to Executive and
Executive’s eligible dependents at the time of the
termination of Executive’s employment with the Company,
provided that Executive and Executive’s eligible dependents
are eligible for participation in such coverage.

 


(ii)
With respect
to Benefits that are not eligible for continuation coverage under
COBRA, in the event the Company is unable to continue
Executive’s participation under the Company’s then
existing insurance policies for such Benefits, Executive may elect
to obtain coverage for such Benefits either by (1) obtaining
individual coverage for Executive (if Executive qualifies for
individual coverage); or (2) electing coverage as an eligible
dependent under another person’s coverage (if Executive
qualifies for such dependent coverage), or any combination of the
foregoing alternatives; provided that any alternative shall be
available and implemented only (I) in a manner that neither
accelerates nor delays the year in which taxable income arises from
the Benefits, and (II) in accordance with Section 409A of the Code.
The Company shall pay directly or reimburse to Executive the
monthly premiums for the benefits or coverage selected by
Executive, with such payment or reimbursement not to exceed the
monthly premiums the Company paid for such Benefits at the time of
termination of Executive’s employment with the Company. The
Company’s obligation to pay or reimburse for the Benefits
covered by this Section 5(d)(ii) shall terminate upon the earlier
of (i) the end of the applicable COBRA Continuation Period; and
(ii) Executive’s employment by an employer that provides
Executive with coverage substantially similar to such Benefits as
provided to Executive at the time of the termination of
Executive’s employment with the Company, provided that
Executive is eligible for participation in such coverage. Executive
acknowledges and agrees that the Company shall not be obligated to
provide any Benefits covered by this Section 5(d)(ii) for Executive
if Executive does not qualify for coverage under the
Company’s existing insurance policies for such Benefits, for
individual coverage, or for dependent coverage.

 


(e)
Timing of Cash
Severance Payments.


 


(i)
Payments of
Accrued Amounts under Sections 5(a), 5(b) and 5(c) shall be made no
later than the payment date required by applicable law or such
earlier time specified in this Agreement.


 


(ii)
Subject to
Section 8, the satisfaction of the conditions set forth in Section
5(f), and the following sentences of this Section 5(e)(ii), the
cash monthly Base Annual Salary continuation payments under Section
5(b) shall be made to Executive in substantially equal bimonthly
installments, in accordance with the normal payroll practices of
the Company, as provided in Section 4(a). If the period of time
covered by the entire allowed Release Consideration Period (as
defined in Section 5(f)(ii)) and the entire Release Revocation
Period (as defined in Section 5(f)(ii)) (considering such periods
consecutively) begins in one calendar year and ends in the
following calendar year, the cash monthly Base Annual Salary
continuation payments under Section 5(b)(ii) shall commence with
the first Company payroll payment date of such following calendar
year which is after the date on which the Release became effective
and non-revocable in accordance with its terms. In the event
commencement of the cash monthly Base Annual Salary continuation
payments is delayed as a result of the immediately preceding
sentence, then any cash monthly Base Annual Salary continuation
payments that would otherwise have been payable before the second
tax year but for the immediately preceding sentence, will be
deferred and paid in a lump sum along with the first payment made
in that second tax year.


 


 




 

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(iii)
Subject to
Section 8, the satisfaction of the conditions set forth in Section
5(f), and the last sentence of this Section 5(e)(iii), the lump sum
cash payment under Section 5(c)(ii) and Section 5(c)(iv) shall be
made to Executive within five (5) business days after the Release
(as defined in Section 5(f)(ii)) becomes effective and
non-revocable in accordance with its terms. If the period of time
covered by the entire allowed Release Consideration Period (as
defined in Section 5(f)(ii)), the entire Release Revocation Period
(as defined in Section 5(f)(ii)) and the entire five business day
period described above in this Section 5(e)(iii) (considering such
periods consecutively) begins in one calendar year and ends in the
following calendar year, the lump sum cash payment under Section
5(c)(ii) and Section 5(c)(iv) shall be made to Executive 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.


 


(iv)
Subject to
Section 8 and the satisfaction of the conditions set forth in
Section 5(f), cash payments or reimbursements for Benefits under
Section 5(d), if applicable, shall be made to or on behalf of
Executive in monthly installments as provided in Section
5(d).


 


(v)
Subject to
Section 8, the satisfaction of the conditions set forth in Section
5(f), and the last sentence of this Section 5(e)(iii), the lump sum
cash payment under Section 5(b), clause (iv) shall be made once the
Company’s board of directors has determined and approved the
payouts, if any, under the Company’s annual incentive
compensation plan for the applicable year and at the same time as
payouts are made to other executive officers of the Company who are
actively employed by the Company at the time. In any case, the lump
sum cash payment under Section 5(b), clause (iv) shall be made no
later than two and one-half months after the end of the calendar
year in which Executive’s Separation from Service occurs,
provided that the Release shall have become effective and
non-revocable in compliance with its terms prior to expiration of
such two and one-half month period. If the period of time covered
by the entire allowed Release Consideration Period (as defined in
Section 5(f)(ii)), the entire Release Revocation Period (as defined
in Section 5(f)(ii)) and the entire five business day period
described above in this Section 5(e)(iii) (considering such periods
consecutively) begins in one calendar year and ends in the
following calendar year, the lump sum cash payment under Section
5(b), clause (iv) shall be made to Executive 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.


 


(f)
Conditions on Severance and
Benefits. The amounts and benefits (other than Accrued
Amounts) that are payable pursuant to Sections 5(b), 5(c) and 5(d)
of this Agreement shall be provided only if:


 

(i)
Executive is
compliant, at all times prior to the due date for any payment, with
the terms and conditions set forth in Section 6; and

 

(ii)
(A) Executive has
executed and delivered to the Company the Separation Agreement and
Release substantially in the form attached hereto as Exhibit A
(“Release”) no
later than the expiration of the applicable period of time allowed
for Executive to consider the Release as set forth in Section 13 of
the Release (“Release
Consideration Period”); (B) Executive has not revoked
the Release prior to the expiration of the applicable revocation
period set forth in Section 13 of the Release (“Release Revocation Period”); and
(C) 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
5(b), 5(c) or 5(d) shall be due or payable to, or provided to,
Executive if the Release has not become effective and non-revocable
in accordance with the requirements of this Section
5(f)(ii).

 


(iii)
If requested
by the Company, Executive shall have participated in an exit
interview with the Company’s Board of Directors or a
committee thereof.

 

(g)
Other than the
payments and benefits provided for in this Section 5, Executive
shall not be entitled to any additional amounts from the Company
resulting from a termination of Executive’s employment with
the Company.

 


 




 

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6.         
Unauthorized
Disclosure; Non-Solicitation; Proprietary
Rights.

 

(a)
Unauthorized
Disclosure. Executive agrees and understands that in
Executive’s position with the Company, Executive will be
exposed to and will receive non-public information relating to the
confidential affairs of the Company and its affiliates, including,
without limitation, employee lists and compensation, technical
information, intellectual property, business and marketing plans,
strategies, customer information, software, other information
concerning the products, promotions, development, financing and
expansion plans, business policies and practices of the Company and
other non-public forms of information considered by the Company to
be confidential and in the nature of trade secrets (including,
without limitation, ideas, research and development, know-how,
technical data, customer and supplier lists, pricing and cost
information and business and marketing plans and proposals)
(collectively, “Confidential
Information”). Executive agrees that at all times
during Executive’s employment with the Company, except as may
be required for Executive to discharge Executive’s duties as
a director, employee or an officer of the Company, and thereafter,
Executive shall not disclose such Confidential Information, either
directly or indirectly, to any Person without the prior written
consent of the Company and shall not use or attempt to use any such
information in any manner other than in connection with
Executive’s employment with the Company, unless (i) required
by law or court order to disclose such information, in which case
Executive shall provide the Company with written notice of such
requirement as far in advance of such anticipated disclosure as
reasonably possible and use Executive’s best efforts to
consult with the Board prior to such anticipated disclosure; (ii)
during the course of or in connection with any actual or potential
litigation, arbitration, or other proceeding based upon or in
connection with the subject matter of this Agreement or otherwise
related to Executive’s employment with the Company; (iii) as
may be necessary or appropriate to conduct Executive’s duties
hereunder; (iv) such information has become public other than by
reason of a breach by Executive of this Section 6(a); or (v) the
information is generally known to persons involved in the
Company’s trade or business. This confidentiality covenant
has no temporal, geographical or territorial restriction. Upon
termination of Executive’s employment with the Company for
any reason, Executive shall promptly deliver to the Company (or, at
the Company’s option, destroy (and provide a certification of
such destruction)) all property, keys, notes, electronic storage
media, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines,
technical data and any other tangible product or document which has
been produced by, received by or otherwise submitted to Executive
during or prior to Executive’s employment with the Company,
and any copies thereof in Executive’s (or capable of being
reduced to Executive’s ) possession, as well as all computers
of the Company provided to Executive; provided that nothing in this
Agreement or elsewhere shall prevent Executive from retaining and
utilizing copies of documents relating to Executive’s
employment or personal benefits, entitlements and obligations
(including employment agreements, confidentiality agreements, stock
options award agreements and severance agreements); documents
relating to Executive’s personal tax obligations; the data
and entries from Executive’s contacts and calendar;
Executive’s personal emails; and such other records and
documents as may reasonably be approved by the Company (items
covered by this proviso are referred to herein as the
“Personal
Documents”). Executive will not disclose to Company,
use in connection with performance of his duties to the Company, or
induce Company to use any proprietary information or trade secrets
of third parties, in each case, with knowledge and intent and in
violation of any confidentiality restrictions to which he is
subject, unless the Company is specifically authorized by such
third parties to obtain or use such proprietary information or
trade secrets.

 

(b)
Non-Solicitation
of Employees. During Executive’s employment with the
Company (whether during the term or thereafter) and for a period of
twelve (12) months after Executive’s termination of
employment, Executive shall not (other than in connection with
carrying out Executive’s responsibilities for the Company)
directly or indirectly contact, induce or solicit (or assist any
person to contact, induce or solicit) for employment any person who
is then or was an employee of the Company within the six (6) month
period prior to the date of such contact, inducement or
solicitation, provided that nothing in this Section 6(b) shall be
deemed to prohibit Executive from (1) providing advice or
references for any employee, (2) placing advertisements in
newspapers or other media of general circulation advertising
employment opportunities, provided that such advertisements are not
directed or tailored to Company employees, or (3) hiring persons
who respond to such advertisements, provided that they were not
otherwise solicited by Executive in violation of this Section
6(b).

 

 




 

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(c)
Interference
with Business Relationships. During Executive’s
employment with the Company (whether during the Employment Term or
thereafter) and for a period of twelve (12) months after
Executive’s termination of employment, Executive shall not
(other than in connection with carrying out Executive’s
responsibilities for the Company) directly or indirectly contact,
induce or solicit (or assist any person to contact, induce or
solicit) any customer, client, partner, joint venturer, vendor or
supplier of the Company, or any such person who was within six (6)
months of the date of contact a customer, client, partner, joint
venturer, vendor, or supplier of the Company, to terminate its
relationship or otherwise cease doing business in whole or in part
with the Company, or directly or indirectly interfere with (or
assist any person to interfere with) any material relationship
between the Company and any of its customers, clients, partners,
joint venturers, vendors or suppliers.

 

(d)
No
Other Post-Employment Restrictions. There shall be no
contractual or similar restrictions on Executive’s right to
terminate Executive’s employment with the Company, or on
Executive’s post-employment activities, other than as
expressly set forth in this Agreement, the Release and the
Inventions Assignment Agreement.

 

(e)
Permitted
Communications.

 

(i)
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.

 

(ii)
Executive
understands that nothing contained in this Agreement limits
Executive’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 Executive’s right
to receive an award for information provided to any Government
Agencies.

 

(f)
Cooperation
in Proceedings. Subject to reasonable notice and at
reasonable times not interfering with Executive’s subsequent
employment or other business endeavors, for the first thirty-six
(36) months following Executive’s termination of employment,
Executive agrees to assist and cooperate (including, but not
limited to, providing information to Company and/or testifying in a
proceeding) in the investigation and handling of any internal
investigation, legislative matter, or actual or threatened court
action, arbitration, administrative proceeding, or other claim
involving any matter that arose during the period of
Executive’s employment.  Executive shall be reimbursed
for reasonable expenses actually incurred in the course of
rendering such assistance and cooperation (including reasonable
legal fees and travel expenses).  Employee’s agreement
to assist and cooperate shall not affect in any way the content of
information or testimony provided by Employee.

 

(g)
Injunctive
Relief. Without limiting the remedies available to the
Company, Executive acknowledges that a breach of any of the
covenants contained in this Section 6 may result in irreparable
injury to the Company for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat
thereof, the Company shall be entitled to seek a temporary
restraining order and/or preliminary or permanent injunction,
without the necessity of proving irreparable harm or injury as a
result of such breach or threatened breach of this Section
6.

 


 




 

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7.         
Representations.
Each party represents and warrants (i) that such party is not
subject to any contract, arrangement, agreement, policy or
understanding, or to any statute, governmental rule or regulation,
that in any way limits such party’s ability to enter into and
fully perform such party’s obligations under this Agreement
(including the agreements the forms of which are appended hereto);
(ii) that such party is able without restrictions to enter into and
fully perform such party’s obligations under this Agreement
(including the agreements of which forms are appended hereto); and
(iii) that, upon the execution and delivery of this Agreement by
both parties, this Agreement shall be such party’s valid and
binding obligation, enforceable against such party in accordance
with its terms, except to the extent that enforceability may be
limited by applicable bankruptcy, insolvency or similar laws
affecting the enforcement of creditors’ rights generally. The
Company represents and warrants that it is fully authorized by
action of the Board, and by actions of any other Person whose
authorization is required, to enter into this Agreement and to
perform its obligations under it.

 


8.         
Taxes.

 


(a)
All payments made
pursuant to this Agreement will be subject to withholding of
applicable taxes. The intent of the parties is that the payments
and benefits under this Agreement comply with or be exempt from
Section 409A of the Code and the regulations and guidance
promulgated thereunder (collectively, “Section 409A of the
Code”) and, accordingly, to the maximum extent permitted,
this Agreement shall be interpreted to be in compliance therewith.
Notwithstanding anything in this Agreement to the contrary, any
compensation or benefits payable under this Agreement that is
considered nonqualified deferred compensation under Section 409A of
the Code and is designated under this Agreement as payable upon
Executive’s termination of employment shall be payable only
upon Executive’s Separation from Service. To the extent that
any reimbursements under this Agreement are subject to Section 409A
of the Code, any such reimbursements payable to Executive shall be
paid to Executive no later than December 31 of the year following
the year in which the expense was incurred; provided, that
Executive submits Executive’s reimbursement request promptly
following the date the expense is incurred, the amount of expenses
reimbursed in one year shall not affect the amount eligible for
reimbursement in any subsequent year, other than medical expenses
referred to in Section 105(b) of the Code, and Executive’s
right to reimbursement under this Agreement will not be subject to
liquidation or exchange for another benefit. Executive’s
right to receive any installment payments under this Agreement,
including any continuation salary payments that are payable on
Company payroll dates, shall be treated as a right to receive a
series of separate payments and, accordingly, each such installment
payment shall at all times be considered a separate and distinct
payment as permitted under Section 409A of the Code. Except as
otherwise permitted under Section 409A of the Code, no payment
hereunder shall be accelerated or deferred unless such acceleration
or deferral would not result in additional tax or interest pursuant
to Section 409A of the Code. If, at the time of Executive’s
Separation from Service under this Agreement, Executive 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 Executive on account of
Executive’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
Executive’s Separation from Service (“409A Suspension Period”). Within
14 calendar days after the end of the 409A Suspension Period,
Executive shall be paid a lump sum payment in cash equal to any
payments delayed because of the preceding sentence. Thereafter,
Executive shall receive any remaining benefits as if there had not
been an earlier delay. Each payment or benefit payable under this
Agreement is intended to constitute a separate payment for purposes
of Section 409A of the Code.

 


(b)
(i)
For purposes
of this Section 8(b), the following terms shall have the following
meanings:

 


(A) “Base
Amount” means the average
of Executive’s W-2 wages from the Company for the five (5)
calendar years completed immediately prior to the calendar year in
which the Section 280G Event occurred as determined in accordance
with Code Section 280G(b)(3) and the regulations thereunder. Any
W-2 wages for a partial year of employment will be annualized, in
accordance with the frequency which such wages are paid during such
partial year, before inclusion in Base Amount;


 


 (B) “Parachute
Payment” has the meaning
set forth in Section 280G(b)(2) of the Code;
and


 


 



 

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 (C) “Section
280G Event” means a
change in the ownership or effective control of the Company or a
change in the ownership of a substantial portion of the
Company’s assets, within the meaning of Section
280G(b)(2)(A)(i) of Code and the regulations
hereunder.

 


(ii)
Notwithstanding anything to the
contrary contained herein, in the event that any payment or benefit
received or to be received by Executive from
the Company under this Agreement or any other agreement or
arrangement between the Executive and the Company (including, but
not limited to, any stock option rights, stock grants, and other
cash and noncash compensation amounts that are treated as payments
under Section 280G), all as determined on a pre-tax basis
(collectively, “Payments”) would constitute a Parachute Payment,
then the Accountants (as defined below) shall promptly calculate
(A) the aggregate after-tax amount of Payments that would be
retained by Executive if the full pre-tax amount of the Payments
(“Full
Amount”) were paid to
Executive and Executive paid all applicable taxes imposed on the
Full Amount (including, without limitation, any excise taxes
imposed on such Payments under Code Section 4999) and (B) the
aggregate after-tax amount of Payments that would be retained by
Executive if the pre-tax amount of the Payments paid to Executive
were equal to only 2.99 times Executive’s Base Amount
(“Reduced
Amount”) and Executive
paid all applicable taxes imposed on the Reduced Amount (which
taxes would exclude excise taxes under Code Section 4999 because
the Payments would not constitute Parachute Payments as a result of
the aggregate present value of the Payments being limited to 2.99
times Executive’s Base Amount). The Accountants shall
promptly deliver a copy of such calculations to the Company and
Executive. The Company shall then pay to or for the benefit of
Executive whichever of (I) the Full Amount of pre-tax Payments or
(II) the Reduced Amount of pre-tax Payments, would result in
Executive retaining the greater aggregate after-tax amount of
Payments, after taking into account the total taxes that would be
imposed on the Full Amount of pre-tax Payments or the Reduced
Amount of pre-tax Payments, as applicable. The present value of the
Payments will be determined in accordance with the provisions of
Code Section 280G(d)(4) and the regulations
thereunder.


 


(iii)
Any determination required under this Section 8(b) shall be made in
writing by an independent firms of certified public accountant
selected by the Company (“Accountants”) and approved by
Executive, which approval shall not be unreasonably withheld,
delayed or conditioned. The written determination of the
Accountants so selected and approved shall be delivered promptly to
the Company and Executive and, absent manifest mathematical errors,
shall be conclusive and binding upon Executive and the Company for
all purposes. For purposes of making the calculations required by
this Section 8(b), the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on
reasonable, good faith interpretations concerning the application
of Sections 280G and 4999 of the Code. The Company and Executive
shall promptly furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to
make a determination under this Section 8(b). The Company shall
bear all costs the Accountants may reasonably incur in connection
with any calculations contemplated by this Section
8(b).


 


(iv)
If Executive’s Payments are reduced by
reason of this Section 8(b) and it is later established, pursuant
to a final determination of a court, arbitrator or a proceeding
before the Internal Revenue Service or other taxing authority, that
Executive could have received a greater amount of Payments without
resulting in an excise tax under Code Section 4999, then the
Company shall promptly thereafter (but in no event later than the
end of the calendar year in which such determination is rendered)
pay Executive the aggregate additional amount which could have been
paid without resulting in such an excise tax as soon as
practicable, less any employment and withholding taxes that the
Company determines are applicable.


 


 



 

-13-







 






 


(vi)
The Company
and Executive agree to cooperate generally and in good faith with
respect to (A) the review and determinations to be undertaken by
the Accountants as set forth in this Section 8(b) and (B) any
audit, claim or other proceeding brought by the Internal Revenue
Service or other taxing authority to review or contest or otherwise
related to the determinations of the Accountants as provided for in
this Section 8(b), including any claim or position taken by the
Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by Executive of any
additional excise tax under Code Section 4999, over and above the
amounts of excise tax established under the procedure set forth in
this Section 8(b).


 


(v)
Any
reduction in Payments pursuant to this Section 8(b) shall be
effected in the following order (unless Executive, to the extent
permitted without violating Section 409A of the Code and the
regulations thereunder, elects another method of reduction by
written notice to the Company prior to the Section 280G Event):
(A) any cash severance payments, (B) any other cash
amounts payable to Executive, (C) any health and welfare or
similar benefits valued as parachute payments,
(D) acceleration of vesting of any stock options or stock
appreciation rights for which the exercise price exceeds the then
fair market value of the underlying stock, in order of the option
tranches with the largest Section 280G parachute value (as
determined pursuant to the regulations under Section 280G),
(E) acceleration of vesting of any equity award that is not a
stock option or stock appreciation right and (F) acceleration
of vesting of any stock options or stock appreciation rights for
which the exercise price is less than the fair market value of the
underlying stock (a “spread”) in such manner as would yield the largest
remaining spread value for Executive as of the date of the Section
280G Event.


  


 
9.         
Dispute
Resolution. 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.

 


10.         
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, and the
agreements annexed hereto as Exhibit A, contain the entire
understanding between the parties hereto and supersedes any prior
employment or change-in-control protective agreement between the
Company or any predecessor and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or
compensation inuring to Executive of a kind elsewhere. No provision
of this Agreement shall be interpreted to mean that Executive is
subject to receiving fewer benefits than those available to
Executive without reference to this Agreement.

 


11.         
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 email, 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 email, when sent with
answer-back confirmed, 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.

 


If to
the Company:

 


AutoWeb,
Inc.


18872
MacArthur Boulevard


Irvine,
California 92612-1400


Facsimile: (949)
608-3614


Attn: 
Executive Vice President, Chief Legal and Administrative Officer
and Secretary


 


If to
the Executive:

 


To
Executive’s latest home address on file with the
Company


 


 




 

-14-








 






 


12.         
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.

 


13.         
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.

 


14.         
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 exercised 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.

 


15.         
Governing
Law. This Agreement and the relationship of the parties
hereto shall be construed and enforced in accordance with the law
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.

 


16.         
No
Third Party Beneficiaries. Except as otherwise set forth in
this Agreement, nothing contained in this Agreement is intended nor
shall be construed to create rights running to the benefit of third
parties.

 


17.         
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.

 


18.         
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.

 


19.         
No
Right or Obligation of Employment. Executive acknowledges
and agrees that nothing in this Agreement shall confer upon
Executive any right with respect to continuation of employment by
the Company, nor shall it interfere in any way with
Executive’s right or the Company’s right to terminate
Executive’s employment at any time, with or without
Cause.

 

 




 

-15-








 






 


20.         
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 Party 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 (i.e., days, months, and years) in the
State of California, USA, unless otherwise expressly indicated. The
English language shall apply to any interpretation of this
Agreement. Except as otherwise provided or if the context otherwise
requires, whenever used in this Agreement, (i) any noun or pronoun
shall be deemed to include the plural and the singular as well as
the masculine, feminine, and neuter genders, (ii) the terms
“include,” “includes,” and
“including” shall be deemed to be followed by the
phrase “without limitation,” (iii) the word
“or” shall be inclusive and not exclusive, (iv) all
references to Articles, Sections, subsections, preambles, or
recitals, refer to the Articles, Sections, subsections, preamble,
and recitals of this Agreement, and all references to Schedules
refer to the Schedules attached to this Agreement or delivered with
this Agreement, as appropriate, and all references to Exhibits
refer to the Exhibits attached to this Agreement, each of which is
made a part of this Agreement for all purposes, (v) the terms
“hereunder,” “hereof,”
“hereto,” and words of similar import shall unless
otherwise stated be deemed references to this Agreement as a whole
and not to any particular Article, Section, or other provision
hereof, (vi) the terms “dollars” or “$”
means United States dollars, (vii) reference to any agreement,
document, or instrument means such agreement, document, or
instrument as amended or modified through the date hereof in
accordance with the terms thereof and includes all addenda,
exhibits, and disclosure schedules thereto, (viii) any reference to
any Person includes such Person’s successors and assigns but,
if applicable, only if such successors and assigns are permitted by
this Agreement, and (ix) any reference to any governmental
authority includes any designee thereof or successor thereto. In
the event of any inconsistency between the statements made in the
body of this Agreement and those contained in the Schedules (other
than an express exception to a specifically identified statement),
those in this Agreement shall control. Any disclosures in any
Schedule or in any other transaction document of any information
that is not required under the terms hereof or thereof to be
disclosed herein or therein shall not change or diminish the
disclosure requirements herein or therein.

 


21.         
Legal
and Tax Advice. Executive acknowledges that: (i) the Company
has encouraged Executive to consult with an attorney and/or tax
advisor of Executive’s choosing (and at Executive’s own
cost and expense) in connection with this Agreement, and (ii)
Executive is not relying upon the Company for, and the Company has
not provided, legal or tax advice to Executive in connection with
this Agreement. It is the responsibility of Executive 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.
Executive acknowledges that Executive has had a reasonable
opportunity to seek and consider advice from Executive’s
counsel and tax advisors.

 


22.         
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, PDF
signature, or other electronic means by either Party, and any such
signature shall be deemed originals and binding for all purposes
hereof, without delivery of an original signature being thereafter
required.


 

 


THE
PARTIES ACKNOWLEDGE THAT THE COMPANY HAS ADVISED EXECUTIVE TO
OBTAIN INDEPENDENT LEGAL COUNSEL OF EXECUTIVE’S CHOOSING TO
ADVISE EXECUTIVE REGARDING THIS AGREEMENT AND ATTACHED EXHIBITS,
AND THEIR TERMS AND CONDITIONS. EXECUTIVE HAS HAD A REASONABLE
OPPORTUNITY TO SEEK THAT ADVICE AND HAS IN FACT OBTAINED SUCH
ADVICE FROM INDEPENDENT LEGAL COUNSEL SELECTED BY EXECUTIVE.
EXECUTIVE ACKNOWLEDGES THAT THE TERMS OF THIS AGREEMENT ARE FAIR
AND REASONABLE TO EXECUTIVE. BY EXECUTING THIS AGREEMENT, EXECUTIVE
IS CONSENTING TO THE TERMS OF THIS AGREEMENT.

 



[Remainder of page intentionally left blank; Signature page
follows.]




 

-16-








 






 

 


IN WITNESS WHEREOF, the Company and
Executive have executed and entered into this Agreement effective
as of the date first shown above. 

 


	
 

	


AutoWeb, Inc.


	
 

	
 

	
 


	
 

	
By:   

	
/s/ Michael J.
Fuchs    
 



	
 

	
 

	Michael J.
Fuchs
	
 

	
 

	
Chairman of the
Board






 

 





	
 

	


Executive


	
 

	
 

	
 


	
 

	
By:   

	
/s/ Jared R. Rowe
       



	
 

	
 

	

Jared
R. Rowe


	
 

	
 

	
 


	
 

	
 

	
 






 

  




 


 




 

-17-








 









 


EXHIBIT
A


 


SEPARATION
AND RELEASE AGREEMENT


 


It is
hereby agreed by and between you, Jared R. Rowe (for yourself, your
spouse, family, agents and attorneys) (jointly, “You” or “Executive”), and AutoWeb, Inc.,
its predecessors, successors, affiliates, directors, employees,
shareholders, fiduciaries, insurers, employees and agents (jointly,
“Company”), as
follows:


 

1. Separation of
Employment. You acknowledge that your employment with the
Company ended effective [_______], 20[__] (“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 Employment Agreement dated effective
as of April 12, 2018 by and between the Company and Executive
(“Employment
Agreement”).


 

2.
Release
Consideration. In exchange for your promises and obligations
in this Release and the Employment 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 Employment 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 Employment 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 Employment Agreement after
Your termination of employment.


 

4.
Return
of Company Property. Except for Personal Documents (as
defined in the Employment Agreement), 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 and other than Personal
Documents, 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.


 

5.
Confidentiality
and Non-Solicitation/Interference. You agree that Section 6
of the Employment Agreement remains in effect pursuant to its
terms.

 

6.
Nondisparagement.
You and the Company (solely with respect to its executive officers
and members of the Company’s board of directors) agree that
neither party nor anyone acting on their behalf or at their
direction will disparage, denigrate, defame, criticize, impugn or
otherwise damage or assail the reputation or integrity of the other
party publicly or privately to any third party, including without
limitation (i) to any current or former employee, officer,
director, contractor, supplier, customer, or client; (ii) any
prospective or actual purchaser of the equity interests or business
partner; or (iii) to any person or entity in the automotive
industry, automotive marketing, advertising or other services, or
the automotive press. Nothing in this Section 6 shall preclude any
party from making truthful statements that are reasonably necessary
to comply with applicable law, rule, regulation, order or legal
process, including public disclosure obligations under applicable
federal and state securities laws, rules or regulations or
applicable stock exchange rules, or to defend or enforce their
respective rights under this Release.


 


 




 

-18-








 





 

7.
Unconditional
and 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, solely in their capacity as such, 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 “Company 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, that arise out of or in any way
relate to your employment or your separation from employment with
the Company.

 

The Company agrees that the
consideration provided by this Agreement represents settlement in
full of all outstanding obligations owed to the Company by You or
your heirs, family members, executors, agents, and assigns,
solely in their capacity as such, (collectively, the
“Executive
Releasees”), and notwithstanding
the provisions of Section 1542 of the Civil Code of California,
Company unconditionally releases and forever discharges You and the
other Executive 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, 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 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, each
party expressly acknowledges and agrees that this Release resolves
all claims either party may have against the other party or the
Company Releasees or Executive Releasees as of the date of this
Release, including but limited to claims that either party did not
know or suspect to exist in such party’s favor at the time of
the execution of this Release. Each party expressly waives any and
all rights which such party 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.

 



 

-19-







 





 


 

(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 Release does not waive or release rights or claims arising
after You sign this Release.


 

(g)              
This Release does not waive any rights of either party under the
Employment Agreement, Inventions Assignment Agreement, any stock
option or other equity award agreements that are intended to
survive, or which are payable after, termination of Your
employment.


 

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. 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.


 

10. 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.


 

11. 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.


 

12. 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.


 

13. 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.


 

14. 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.


 


 




 

-20-








 





 

15. Protected
Communications:


 

(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) You understand that
nothing contained in this Agreement limits your ability to file a
charge or complaint with the U.S. 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”).  You further understand that this
Agreement does not limit your 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 the Company.  This Agreement does not limit your right to
receive an award for information provided to any Government
Agencies.


 

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 Employment Agreement, and You are relying
upon none. This Release and the Employment 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 Employment
Agreement).


 

18. Period for Review
and Consideration/Revocation Rights. 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 Legal 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 Section 2.


 

19. 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.


 



 

-21-







 






 


 



Dated:


__________________________







 


Jared
R. Rowe






 


 



Dated:


AUTOWEB, INC.







 


By: 
______________________   




(Officer
Name)


(Title)


 


 


 




 

-22-