Exhibit 10.1
XXXXXX AUTOMOTIVE TAMPA, L.P.
March 18, 2005
Xxxxxxx Xxxxxx
0000 X. Xxxx Xxxxx Xxx.
Xxxxx, Xxxxxxx 00000
Dear Xx. Xxxxxx:
We are pleased that you have agreed to provide your services to Xxxxxx
Automotive Tampa, L.P. (the "Company") in the capacity as Chairman. This Letter
Agreement sets forth the agreed upon amendments and modifications to your
existing employment agreement with the Company dated September 1, 2003 (the
"September 2003 Agreement"). The modifications and amendments to the September
2003 Agreement as set forth in this Letter Agreement shall be deemed effective
March 31, 2005, (the "Effective Date").
1. Satisfaction of Obligations under September 2003 Agreement. The
Company agrees to pay you, and you agree to accept the sum of, $500,000.00,
which amount you agree satisfies any and all monetary and non-monetary
obligations the Company (or any parent, affiliate or subsidiary thereof) may
have owed you under the terms of the September 2003 Agreement, said payment to
be made on or before March 31, 2005. All authorized deductions required or
permitted by state and federal law shall be deducted from the payment made to
you under this Paragraph 1.
2. Term of Employment. You and the Company (collectively, "the
parties") agree that Paragraph 2 of the September 2003 Agreement is deleted in
its entirety and replaced with the following:
2(a) Term of Employment. The employment of Executive pursuant
hereto shall commence on the Effective Date and shall remain in effect for an
initial term expiring on the fifth anniversary of the Effective Date (the
"Term") unless sooner terminated pursuant to the provisions of Section 6 hereof.
2(b) Position and Responsibilities of Executive. During the
Term, Executive will be employed by the Company in the position of Chairman. As
Chairman, Executive will be expected to provide general advice regarding the
operations of the Company, as well as such additional responsibilities as may be
reasonably assigned from time to time. Executive agrees and recognizes that, in
his capacity as Chairman, Executive is not an officer or director of the Company
and has no independent authority to conduct business on behalf of or to enter
into any agreement that may be legally binding on the Company or any of its
parents, affiliates or subsidiaries. Notwithstanding the foregoing, the terms of
Executive's employment will not require him to spend any period of time in
excess of three days away from the businesses operated or owned by the Company
other than in connection with incidental or routine trips. In Executive's
position as Chairman, he agrees to devote all such skill, knowledge and working
time as reasonably required to carry out his obligations under this agreement,
which parties acknowledge shall not constitute full time employment.
3. Compensation. The parties agree that Paragraph 3 of the September
2003 Agreement is deleted in its entirety and replaced with the following:
3. Compensation. During the Term, the Company shall pay
Executive an annual salary in the amount of $100,000.00. All authorized
deductions required or permitted by state and federal law shall be deducted from
all payments made to Executive under this Paragraph 3. In addition, all payments
made under this Paragraph 3 shall be paid in accordance with the Company's
normal payroll procedures. The parties agree that, other than the compensation
set forth in this Paragraph 3, no further compensation shall be paid by the
Company to Executive during the Term.
4. Benefits and Perquisites. The parties agree that the following
paragraphs shall be added to Paragraph 4 of the September 2003 Agreement:
(g) Office. The Company will permit Executive to use an office
located at one of its dealerships located in the Tampa area.
(h) Executive Assistant. The Company will employ a part-time
executive assistant at a base salary of $40,000 per year, plus those benefits
that similar employees of the Company may be eligible to receive and/or
participate in, subject to the terms and eligibility requirements of the
controlling benefit plan(s) document(s).
5. Termination of Employment. The parties agree to the following
amendments to Paragraph 6 of the September 2003 Agreement:
a. Termination by Executive. The parties agree that the
reference to a bonus in Paragraph 6(d)(iii) of the September 2003 Agreement is
deleted.
b. Payments Upon Certain Terminations. The parties agree that
the following clause in Paragraph 6(f)(i)(A) will be deleted in its entirety:
"plus any performance-based cash bonus for the portion of any calendar year
preceding Executive's Date of Termination as the Board in its sole discretion
determines to have been earned by Executive". The parties also agree that
Paragraph 6(f)(i)(B) of the September 2003 Agreement is deleted in its entirety
and replaced with the following:
6(f)(i)(B) In addition, if the Executive's employment has been
terminated by the Company without Cause or by Executive for Good Reason,
Executive shall continue to receive the benefits set forth in Section 4 through
the fifth anniversary date of the Effective Date. Further, in the event
Executive's employment is terminated prior to the end of the Term, Executive may
elect to continue to participate in the Company's medical insurance plan until
the earliest of (i) Executive's becoming eligible for coverage under a similar
plan of a subsequent employer; (ii) the Company's failing to obtain coverage for
Executive under such plan with the applicable insurer of such plan; provided,
however, that this clause (ii) shall not apply if the plan is self insured (and
to the extent the Company only insures the plan through catastrophic stop-loss
insurance, the plan shall be deemed to be self insured for purposes of this
Section); further provided, however, that the Company shall use its commercially
reasonable best efforts to obtain coverage for Executive under such plan with
the applicable insurer of such plan if the Company maintains such plan as an
insured plan; (iii) such arrangement becoming prohibited by law or regulation;
provided, however, that in such event, Executive's election to continue to
participate in the Company's medical insurance plan shall be limited only to the
extent necessary to comply with such law or regulation; and (iv) Executive's
failure to comply with the payment requirements of this Section (other than an
inadvertent failure to timely make such payments). From the Date of Termination
through the end of the Term, Executive shall be entitled to participate in the
Company's medical insurance plan at the contribution rate in effect as of the
Date of Termination. Thereafter, Executive shall be entitled to continue to
participate in the Company's medical insurance plan (subject to (i)-(iv) herein)
and shall be responsible for the full cost of such medical insurance coverage,
which shall be billed at the Company's COBRA rate for such coverage as in effect
from time to time (which may change from time to time to reflect changes in the
cost of coverage) and which shall be payable in the same manner as the Company
requires for COBRA payments generally. Notwithstanding the foregoing, this
Section shall not apply (A) in the event Executive is terminated for Cause or
voluntarily resigns or (B) following Executive's failure at any time to elect to
continue such participation in the Company's medical insurance plan.
c. Termination Upon Death or Disability. The parties agree
that Paragraph 6(f)(ii) of the September 2003 Agreement is deleted in its
entirety, provided, however, that in the event of Executive's death or
Disability as set forth in Paragraph 6(a) of the September 2003 Agreement, the
Company agrees to pay Executive's full base salary through the Date of
Termination and, in the event of Executive's Disability, agrees to permit
Executive to continue to participate in the Company's medical insurance plan, at
the contribution rate in effect as of the Date of Termination, through the end
of the Term, subject to the terms and conditions of the plan document(s). At the
end of the Term, Executive will be offered the opportunity to continue his
existing benefit coverages subject to the terms and conditions of the plan
document(s) and as may be provided by prevailing federal and/or state law.
d. Termination for Cause or Voluntary Termination by Executive. The
parties agree that the following clause in Paragraph 6(f)(iii) will be deleted
in its entirety: "and Executive shall not be paid any incentive compensation
cash bonus for the portion of the calendar year preceding Executive's Date of
Termination".
6. Miscellaneous. The parties agree that the following clause in
Paragraph 15(g)(A) of the September 2003 Agreement will be deleted in its
entirety and replaced with the following:
(A) if to the Company, to it: c/o Asbury Automotive Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: President and
CEO Telefax: (000) 000-0000
7. Entire Agreement, Amendment and Assignment. The September 2003
Agreement, as modified and amended by this Letter Agreement, constitutes the
sole agreement between Executive and the Company and supersedes all prior
agreements and understandings with respect thereto, whether oral or written. No
modification to any provision of the September 2003 Agreement or this Letter
Agreement shall be binding unless in writing and signed by both executive and
the Company, and agreed to in writing by the Chief Executive Officer of Xxxxxx
Automotive Group, Inc. or such officer of the Company as may be specifically
designated by the board. No waiver of any rights under the September 2003
Agreement or this Letter Agreement will be effective unless in writing signed by
the party to be charged. No waiver of any provision of the September 2003
Agreement or this Letter Agreement shall be implied from any course of dealing
between or among the parties hereto or from any failure by any party hereto to
assert its rights hereunder on any occasion or series of occasions. All of the
terms and provisions of the September 2003 Agreement and this Letter Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, executors, administrators, legal representatives, successors
and assigns of the parties hereto. Executive further agrees and recognizes that
his duties and responsibilities are of a personal nature and, therefore, cannot
in any respect be assigned or delegated.
If the terms as set forth above are acceptable to you, please sign in
the space provided below and return the original to Xxxx Xxxxxxx, Vice
President, Human Resources at the above-referenced address. Please retain a copy
for your records. If you have any questions regarding the terms and conditions
set forth herein, please do not hesitate to contact Xx. Xxxxxxx.
Sincerely,
XXXXXX AUTOMOTIVE TAMPA, L.P.
By Xxxxxx Automotive Tampa GP L.L.C., its general partner
/s/ J. Xxxxxx Xxxxx
----------------------------
By: J. Xxxxxx Xxxxx
Title: Vice President
Dated: March 22, 2005
Agreed and accepted, this 18th day of March 2005,
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
