Exhibit 10.1
AMENDED EMPLOYMENT
AGREEMENT
This AMENDED EMPLOYMENT AGREEMENT
(this “Agreement”) is made and entered into as of
March 31, 2009, between Asbury Automotive Group, Inc., a
Delaware corporation (the “Company”), and Charles
Oglesby, an individual resident of the State of Georgia (the
“Executive”).
WHEREAS the Company and Executive
entered in that certain Amended Employment Agreement (the
“2007 Agreement”) effective as of May 4, 2007 and
entered into an Amendment to the 2007 Agreement as of May 7,
2008;
WHEREAS, the Company and Executive
now wish to amend and restate the 2007 Agreement;
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and intending to be legally
bound hereby, the parties hereby agree as follows:
SECTION 1. Employment . The
Company hereby employs Executive, and Executive accepts employment
by the Company, on the terms and conditions contained in this
Agreement.
SECTION 2. Term . The
employment of Executive pursuant to the terms of this Agreement
shall be effective as of May 4, 2007 (the “Effective
Date”) and shall remain in effect until the third anniversary
of the Effective Date (the “Initial Period”), provided
that commencing on the third anniversary of the Effective Date and
on each anniversary thereafter (a “Renewal Date”), this
Agreement shall automatically renew for additional one-year periods
(each, a “Renewal Period”), unless either party gives
notice of non-renewal at least 60 days prior to the next Renewal
Date or unless terminated pursuant to Section 16. The period
of time between the Effective Date and the termination of this
Agreement pursuant to its terms is herein referred to as the
“Term”.
SECTION 3. Duties and Extent of
Service . (a) During the Term, Executive shall serve as
Chief Executive Officer and President of the Company and, in
addition, in such other executive capacity or capacities for the
Company, as may be commensurate with Executive’s seniority
and experience and as determined by the Company’s Board of
Directors (the “Board”). During the Term, the Company
shall use its reasonable best efforts to ensure that Executive is
re-elected as a director of the Company, and Executive agrees to
serve in such capacity without additional compensation.
(b) Executive shall report directly
and exclusively to the Board and no other executive officer shall
be appointed with authority over the business operations of the
Company superior to that of Executive.
(c) Executive shall perform such
services and duties for the Company as are customarily performed by
an executive in Executive’s position at a business such as
the Company’s business and as the Board may assign or
delegate to him from time to time. Executive shall devote his full
business knowledge, skill, time and reasonable best efforts
exclusively to the performance of his duties for the Company and
the promotion of its interests; provided , however ,
that Executive shall be entitled to (i) engage in civic and
charitable activities, (ii) manage passive personal
investments, and (iii) with the consent of the Board (which
shall not be unreasonably withheld), serve on the board of
directors of corporations not in competition with the Company;
provided further that none of the foregoing
activities shall, individually or in the aggregate, interfere with
Executive’s ability to devote the requisite time and effort
to the performance of his duties and responsibilities under this
Agreement. Executive’s duties hereunder shall be performed at
such place or places as the interests, needs, businesses or
opportunities of the Company shall require, as the Board may
determine from time to time. The Board may determine that Executive
shall perform some or all of his duties primarily at the
Company’s corporate headquarters, and the Company and
Executive agree that any such determinations by the Board shall
constitute a material term of Executive’s duties under this
Agreement.
SECTION 4. Base Salary .
During the Term, Executive shall be paid a base salary (the
“Base Salary”) at a rate of $825,000 per annum, payable
in arrears in equal monthly installments. On or before May 1,
2008 and annually thereafter, the Board shall review
Executive’s Base Salary at the same time as the salaries of
other members of the corporate office are reviewed and may increase
(but not decrease) his then current Base Salary in its sole
discretion.
SECTION 5. Incentive
Compensation . (a) For the year 2007 and each year during
the remainder of the Term, Executive shall be eligible to earn an
annual bonus pursuant to the Company’s Key Executive
Incentive Compensation Plan (or an applicable successor plan), on a
calendar year basis, of 100% of his then current Base Salary
(“Target Bonus”), and such additional amounts which may
be payable under the Company’s incentive compensation plans
as they may be maintained by the Company, in the Board’s
discretion, from time to time, which amounts shall be payable if
the Company achieves specified objectives (the
“Targets”) established by the Compensation Committee no
later than the 90th day of each such year. The Compensation
Committee of the Board (the “Compensation Committee”)
shall certify whether the relevant Targets have been achieved and,
based on such certification, shall thereafter determine the actual
bonus earned by Executive with respect to the year described in the
preceding sentence no later than 30 days after delivery to the
Board of audited financial statements for the Company for the
relevant calendar year. Such Targets shall be substantially similar
to those Targets established for purposes of computing annual
bonuses for other corporate office senior executives.
Executive’s annual bonus shall be paid in a lump sum cash
payment no later than the fifteenth day of the third month
following the tax year containing the last day of bonus performance
period.
(b) For the year 2007 and each year
during the remainder of the Term, Executive shall be eligible to
participate in the equity and other long term incentive
compensation plans as the Company shall maintain for the benefit of
corporate office senior executives generally, on the terms and
subject to the conditions set forth in such plans.
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SECTION 6. Fringe Benefits .
During the Term, Executive shall be entitled to participate, to the
extent eligible, in such medical, dental, disability, life
insurance, deferred compensation and other benefit plans as the
Company shall maintain for the benefit of corporate office senior
executives generally, on the terms and subject to the conditions
set forth in such plans.
SECTION 7. Expenses; Vacation;
Automobile; Relocation Assistance . Upon the receipt from
Executive of expense vouchers and other documentation reasonably
requested by the Company, the Company shall reimburse Executive
promptly in accordance with the Company’s policies and
procedures for all reasonable expenses incurred by Executive in
connection with Executive’s duties and responsibilities
hereunder. During the Term, Executive shall be entitled to an
automobile allowance of $2,000 per month. Executive shall be
entitled to four weeks paid vacation per year. During the first
year of the Term, the Company shall provide Executive with the use
of an apartment in the city in which the Company’s
headquarters is then located if Executive shall need such use; the
cost of such apartment shall not exceed the cost of the apartment
currently maintained by the Company for the business use of its
executives, unless any additional cost is approved by the Board.
After the first year of the Term, the Company shall review its
relocation assistance policies with respect to Executive if
Executive shall then desire relocation assistance.
SECTION 8. Noncompete and
Nonsolicitation . (a) During the Term and for two year
thereafter, Executive shall not directly or indirectly (other than
as an employee of or consultant to the Company) accept employment
with, or render services to, any Competing Business (defined below)
or solicit business on behalf of any Competing Business from any
customers or clients of the Company or its affiliates.
(b) During the Term and for one year
thereafter, Executive shall not directly or indirectly (other than
as an employee of or consultant to the Company) solicit, recruit or
hire any employee of the Company (or any person who was an employee
of the Company during the 12 month period preceding
Executive’s date of termination) or encourage any such
employee to terminate employment with the Company.
(c) For purposes of this
Agreement, “Competing Business” means any corporation,
partnership, sole proprietorship or other entity that engages in
activities or businesses within the United States that are
substantially in competition with the Company or any of its
controlled affiliates.
(d) Notwithstanding anything to
the contrary contained in this Agreement, the Company hereby agrees
that the foregoing covenant shall not be deemed breached as a
result of the passive ownership by Executive of: (i) less than
an aggregate of 5% of any class of stock of a Competing Business;
provided , however , that such stock is listed on a
national securities exchange or is quoted on the National Market
System of NASDAQ; or (ii) less than an aggregate of 10% in
value of any instrument of indebtedness of a Competing
Business.
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(e) Notwithstanding anything to the
contrary contained in this Agreement, the Company hereby agrees
that the foregoing covenant shall not be deemed breached as a
result of the ownership and operation by Executive of an automobile
dealership after the termination of Executive’s employment
with the Company if and only if (i) the Company shall never
have owned such dealership or shall not be considering acquiring
such dealership as of the date of Executive’s termination of
employment, (ii) such dealership is not located within 50
miles of any dealership which is owned by the Company or which the
Company is considering acquiring as of the date of
Executive’s termination of employment, (iii) such
dealership shall not employ any employee of the Company (or any
person who was an employee of the Company during the 12 month
period preceding Executive’s date of termination) and
(iv) such ownership or operation does not violate any
agreement between the Company and any manufacturer or distributor
of motor vehicles or any policy of any such manufacturer or
distributor.
(f) If a judicial determination
is made that any of the provisions of this Section 8
constitutes an unreasonable or otherwise unenforceable restriction
against Executive, the provisions of this Section 8 shall be
rendered void only to the extent that such judicial determination
finds such provisions to be unreasonable or otherwise
unenforceable. Moreover, notwithstanding the fact that any
provision of this Section 8 is determined not to be
specifically enforceable, the Company shall nevertheless be
entitled to recover monetary damages as a result of
Executive’s breach of such provision.
(g) Executive agrees that the
provisions of this Section 8 are reasonable and properly
required for the adequate protection of the business and the
goodwill of the Company.
SECTION 9. Nondisclosure .
(a) The parties hereto agree that during the course of his
employment by the Company, Executive will have access to, and will
gain knowledge with respect to, the Company’s Confidential
Information (defined below). The parties acknowledge that
unauthorized disclosure or misuse of such Confidential Information
would cause irreparable damage to the Company. Accordingly,
Executive agrees to the nondisclosure covenants in this
Section 9. Executive represents that his experience and
capabilities are such that the provisions of Section 8 and
this Section 9 will not prevent him from earning his
livelihood. Executive agrees that he shall not (except as may be
required by law), without the prior written consent of the Company
during his employment with the Company under this Agreement, and
any extension or renewal hereof, and thereafter for so long as it
remains Confidential Information, use or disclose, or knowingly
permit any unauthorized person to use, disclose or gain access to,
any Confidential Information; provided , however ,
that Executive may disclose Confidential Information to a person to
whom disclosure is reasonably necessary or appropriate in
connection with the performance by Executive of his duties under
this Agreement. Upon termination of this Agreement for any reason,
Executive shall return to the Company the original and all copies
of all
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documents and correspondence in his possession
relating to the business of the Company or any affiliate, including
but not limited to all Confidential Information, and shall not be
entitled to any lien or right of retention in respect
thereof.
(b) For purposes of this Agreement,
“Confidential Information” shall mean all business
information (whether or not in written form) which relates to the
Company, any of its affiliates or their respective businesses or
products or services and which is not known to the public
generally, including but not limited to technical information or
reports; trade secrets; unwritten knowledge and
“know-how”; operating instructions; training manuals;
customer lists; customer buying records and habits; product sales
records and documents, and product development, marketing and sales
strategies; market surveys; marketing plans; profitability
analyses; product cost; long-range plans; information relating to
pricing, competitive strategies and new product development;
information relating to any forms of compensation and other
personnel-related information; contracts; and supplier lists.
Notwithstanding anything herein to the contrary,
“Confidential Information” shall not include any
information that (i) at the time of Executive is made aware of
such information, is generally available to the public,
(ii) after Executive becomes aware of such information,
becomes generally available to the public through no act or
omission of Executive or (iii) is made available to Executive
by a person (other than the Company, its affiliates or their
respective directors or officers) who did not breach any
confidentiality obligations to the Company or its affiliates in
disclosing such information to Executive.
SECTION 10. Severance .
(a) Subject to Section 11 and to Executive’s
execution, delivery and non-revocation of a general release
substantially in the form attached hereto as Exhibit
“A” (the “Release”), if a Termination of
Executive’s employment occurs at any time during the Term,
(i) the Company shall continue to pay Executive compensation
for the next twelve months on regular payroll dates at twice the
rate of Base Salary in effect as of the date of Termination, such
compensation totaling over the twelve month period two
(2) times Executive’s Base Salary in effect as of the
date of Termination, (ii) following the first anniversary of
the date of Termination the Company shall pay Executive an amount
equal to 200% of the Base Salary in effect as of the date of
Termination, such amount to be paid in equal payments on regular
payroll dates over the next twelve months and (iii) beginning
on the date of Termination the Company shall pay Executive an
amount equal to the Executive’s Base Salary in effect as of
the date of Termination, multiplied by the percentage of the
calendar year of the termination that has lapsed through the date
of Termination, such amount to be paid in equal payments on regular
payroll dates over the next twenty four months. The compensation
payable under this subsection (a) shall be subject to any
required tax withholding and shall not begin until the eighth day
after Executive’s delivery of the executed Release to the
Company provided that Executive shall have not previously revoked
the Release. One half of each payment shall constitute
“Severance Pay” and one half shall constitute
“Covenant Pay. Notwithstanding any other provision of this
Agreement, in no event shall the payments provided for in this
Section 10(a) exceed an amount equal to 250% of the sum of the
Executive’s Base Salary and Target Bonus in effect as of the
date of Termination.
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(b) Subject to
Executive’s execution, delivery and non-revocation of the
Release, Executive shall also be entitled for 24 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. Executive agrees to notify the
Company promptly upon obtaining such other employment. At the
option of Executive, COBRA coverage will be available, as provided
by law and/or Company policy, at the termination of extended
benefits as provided above.
(c) If Executive shall die following
his Termination, the payments and benefits provided under this
Section 10 shall continue to be paid and/or provided to his
estate.
(d) In the event of
Executive’s Termination, all stock options granted to
Executive under the 2002 Equity Plan on or before the Effective
Date that are outstanding on the date of Termination shall
automatically become vested and exercisable and shall remain
exercisable for two years following the date of Termination or
until their expiration pursuant to the terms of the applicable
stock option award agreement, whichever is earlier. Upon
Executive’s Termination, all Performance Awards granted to
Executive under the 2002 Equity Plan on or before the Effective
Date shall be treated as provided in the Performance Share Unit
Award Agreement as if Executive’s employment is Terminated by
the Company involuntarily (other than for cause) immediately
following a Change in Control, except that if Executive’s
Termination occurs after the Committee determines that the
Performance Goals have been attained but before the Payment Date
(determined as though there is no Change in Control) the
Performance Awards shall be treated and paid as if Executive
continued to be employed by the Company through the Payment Date
(determined as though there is no Change in Control). All shares of
Restricted Stock granted to Executive on or before the Effective
Date and any deferred compensation granted to Executive shall
automatically be vested. The provisions of this paragraph shall be
deemed incorporated by reference into Executive’s stock
option award, Performance Award, Restricted Stock award and
deferred compensation agreements accordingly.
SECTION 11. Change in Control
. (a) In the event that a Termination (as defined below)
occurs at any time within two years after a Change of Control, as
defined herein, subject to Executive’s execution, delivery
and non-revocation of the Release, the Company will pay Executive
all of the benefits and compensation provided in Section 10,
except that the Covenant Pay and the Severance Pay shall be paid in
a lump-sum payment on the eighth day after Executive’s
delivery of the executed Release to the Company, provided that
Executive shall not have revoked the Release.
(b) For purposes of this Agreement,
“Change of Control” shall mean an event or series of
events, not including any events occurring prior to or in
connection with an initial public offering of Shares (including the
occurrence of such initial public offering), by which:
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(i)
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during any
period of 12 consecutive calendar months, individuals whose
appointment or election for election to the Board was not endorsed
by a majority of the Board before the date of the appointment or
election shall cease to constitute a majority of the
Board;
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(ii)
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the
consummation of a merger, consolidation, statutory share exchange
or similar form of corporate transaction involving the Company or
any of its Subsidiaries (a “Reorganization”) or sale or
other disposition of all or substantially all of the assets of the
Company to an entity that is not an affiliate of the Company (a
“Sale”), that in each case requires the approval of the
Company’s stockholders under the law of the Company’s
jurisdiction of organization, whether for such Reorganization or
Sale (or the issuance of securities of the Company in such
Reorganization or Sale), unless immediately following such
Reorganization or Sale 50% or more of the total voting power (in
respect of the election of directors, or similar officials in the
case of an entity other than a corporation) of (A) the entity
resulting from such Reorganization, or the entity which has
acquired all or substantially all of the assets of the Company (the
“Surviving Entity”), or (B) if applicable, the
ultimate parent entity that directly or indirectly has beneficial
ownership of 50% or more of the total voting power (in respect of
the election of directors, or similar officials in the case of an
entity other than a corporation) of the Surviving Entity (the
“Parent Entity”), is represented by the Company’s
outstanding securities eligible to vote for the election of the
Board (the “C
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