Exhibit 10.26
[LETTERHEAD OF XXXXXX AUTOMOTIVE GROUP]
This agreement is entered into as of January 28, 2002 between Xxxxxx Automotive
Group L.L.C. ("Xxxxxx") and Xxxx Xxxxx ("Executive"), a key employee of Xxxxxx,
in order to provide for an agreed-upon compensation in the event that the
Executive's employment is terminated as defined in this agreement.
1. SEVERANCE PAY ARRANGEMENT
If a Termination (as defined below) of Executive's employment occurs at any
time during Executive's employment, Xxxxxx will pay Executive 12 months of
Executive's base salary as of the date of Termination as Severance Pay.
Payment (subject to required withholding) will be made by Xxxxxx to
Executive monthly on the regular payroll dates of Xxxxxx starting with the
date of Termination.
If Executive participates in a bonus compensation plan at the date of
Termination, Severance Pay will also include a portion of the target bonus
for the year of Termination in an amount equal to the target bonus
multiplied by the percentage of such year that has expired through the date
of Termination.
In addition, Executive shall be entitled for 12 months following the date
of Termination to continue to participate at the same level of coverage and
Executive contribution in any health, dental, disability and life insurance
plans, as may be amended from time to time, in which Executive was
participating immediately prior to the date of Termination. Such
participation will terminate 30 days after Executive has obtained other
employment under which Executive is covered by equal benefits. The
Executive agrees to notify Xxxxxx promptly upon obtaining such other
employment. At the option of the executive, COBRA coverage will be
available, as provided by company policy, at the termination of extended
benefits as provided in this section.
2. DEFINITION OF TERMINATION TRIGGERING SEVERANCE PAY
A "Termination" triggering the Severance Pay set forth above in Section 1
is defined as (1) termination of Executive's employment by Xxxxxx for any
reason, except death, disability, retirement, voluntary resignation or
"cause", or (2) termination by Executive because of mandatory relocation of
Executive's current principal place of business to a location more than 50
miles away, or (3) Xxxxxx'x reduction of Executive's base salary, or (4)
any material diminution of Executive's duties or job title, except in a
termination for "cause", death, disability, retirement or voluntary
resignation. The definition of "cause" is: (1) Executive's gross negligence
or gross misconduct in carrying out Executive's duties resulting in either
case in material harm to Xxxxxx; or (2) Executive being convicted of a
felony; or (3) Executive's breach of Sections 3, 4 or 5 below or (4)
Executive's willful and continued failure to perform substantially the
executive's duties with the company.
3. CONFIDENTIAL INFORMATION NONDISCLOSURE PROVISION
During and after employment with Xxxxxx, Executive agrees not to disclose
to any person (other to an employee or director of Xxxxxx or any affiliate
and except as may be required by law) and not to use to compete with Xxxxxx
or any affiliate any confidential or proprietary information, knowledge or
data that is not in the public domain that was obtained by Executive while
employed by Xxxxxx with respect to Xxxxxx or any affiliate or with respect
to any products, improvements, customers, methods of distribution, sales,
prices, profits, costs, contracts, suppliers, business prospects, business
methods, techniques, research, trade secrets or know-how of Xxxxxx or any
affiliate (collectively, "Confidential Information"). In the event that
Executive's employment ends for any reason, Executive will deliver to
Xxxxxx all documents and data of any nature pertaining to Executive's work
with Xxxxxx and will not take any documents or data or any reproduction, or
any documents containing or pertaining to any Confidential Information.
Executive agrees that in the event of a breach by Executive of this
provision, Xxxxxx shall be entitled to inform all potential or new
employers of this provision and obtain injunctive relief and damages which
may include recovery of amounts paid to Executive under this agreement.
4. NON-SOLICITATION OF EMPLOYEES
Executive agrees that for a period of one year from Executive's last day of
employment with Xxxxxx, Executive shall not directly or indirectly solicit
for employment or employ any person who, at any time during the preceding
12 months, is or was employed by Xxxxxx or any affiliate or induce or
attempt to persuade any employee of Xxxxxx or any affiliate to terminate
their employment relationship. Executive agrees that in the event of a
breach by Executive of this provision, Xxxxxx shall be entitled to inform
all potential or new employers of this provision and obtain injunctive
relief and damages which may include recovery of amounts paid to Executive
under this agreement.
5. COVENANT NOT TO COMPETE
While Executive is employed by Xxxxxx, Executive shall not directly or
indirectly engage in, participate in, represent or be connected with in any
way, as an officer, director, partner, owner, employee, agent, independent
contractor, consultant, proprietor or stockholder (except for the ownership
of a less than 5% stock interest in a publicly-traded corporation) or
otherwise, any business or activity which competes with the business of
Xxxxxx or any affiliate unless expressly consented to in writing by the
Chief Executive Officer of Xxxxxx (collectively, "Covenant Not To
Compete").
In the event that Executive's employment ends for any reason, the
provisions of the Covenant Not To Compete shall remain in effect for one
year following the date of Termination except that the prohibition above on
"any business or activity which competes with the business of Xxxxxx or any
affiliate" shall be limited to Autonation, Sonic, Lithia, United Auto Group
and other competitive groups of similar size. Executive shall disclose in
writing to Xxxxxx the name, address and type of business conducted by any
proposed new employer of Executive if requested in writing by Xxxxxx.
Executive agrees that in the event of a breach by Executive of this
Covenant Not To Compete, Xxxxxx shall be entitled to inform all potential
or new employers of this Covenant and to obtain injunctive relief and
damages which may include recovery of amounts paid to Executive under this
agreement.
GENERAL PROVISIONS
A. EMPLOYMENT IS AT WILL
The Executive and Xxxxxx acknowledge and agree that Executive is an "at
will" employee, which means that either the Executive or Xxxxxx may
terminate the employment relationship at any time, for any reason, with
or without cause or notice, and that nothing in this agreement shall be
construed as an express or implied contract of employment.
B. EXECUTION OF RELEASE
As a condition to the receipt of the Severance Pay payments and
benefits described in section 1 above, Executive agrees to execute a
release of all claims arising out of the Executive's employment or its
termination including but not limited to any claim of discrimination,
harassment or wrongful discharge under local, state or federal law.
C. OTHER PROVISIONS
This agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of Executive and Xxxxxx,
including any successor to Xxxxxx.
The headings and captions are provided for reference and convenience
only and shall not be considered part of this agreement.
If any provision of this agreement shall be held invalid or
unenforceable, such holding shall not affect any other provisions, and
this agreement shall be construed and enforced as if such provisions
had not been included.
This agreement supersedes any and all agreements between Xxxxxx and
Executive relating to payments upon termination of employment or
severance pay and may only be modified in writing signed by Xxxxxx and
Executive.
This agreement shall be governed by and construed in accordance with
the laws of the State of Connecticut.
AGREED TO AS OF THE DATE FIRST WRITTEN ABOVE:
BY EXECUTIVE BY XXXXXX AUTOMOTIVE
GROUP L.L.C.
/s/ Xxxx X. Xxxxx /s/ Xxxxxxx Xxxxxx
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PRINT NAME: PRINT NAME AND TITLE:
Xxxx X. Xxxxx Xxxxxxx Xxxxxx
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