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Exhibit
10.1
ASBURY AUTOMOTIVE GROUP,
INC.
1999 OPTION PLAN
As Amended and Restated
Effective July 25, 2007
The purpose of the Asbury
Automotive Group, Inc. 1999 Option Plan (the “Plan”) is
to provide designated officers and other key employees of Asbury
Automotive Group, Inc., a Delaware corporation (the
“Company”), and its subsidiaries with the opportunity
to receive grants of options to purchase common shares of the
Company, $0.01 par value (“Shares”). The Company
believes that the Plan will encourage the participants to
contribute materially to the growth of the Company, attract
talented management personnel and align the economic interests of
the participants with those of the owners.
1. Administration.
(a) Committee. The Plan shall be administered and interpreted
by a committee of two or more individuals (the
“Committee”) appointed by the Board of Directors of the
Company (the “Board”); however, the Board itself may
ratify or approve any grants as the Board deems
appropriate.
(b) Committee Authority. The
Committee shall have the sole authority to (i) determine the
individuals to whom grants shall be made under the Plan,
(ii) determine the type, size and terms of the grants to be
made to each such individual, (iii) determine the time when
the grants will be made and the duration of any applicable exercise
or restriction period, including the criteria for exercisability
and the acceleration of exercisability, (iv) amend the terms
of any previously issued grant and (v) deal with any other
matters arising under the Plan.
(c) Committee Determination.
The Committee shall have full power and authority to administer and
interpret the Plan, to make factual determinations and to adopt or
amend such rules, regulations, agreements and instruments for
implementing the Plan and for the conduct of its business as it
deems necessary or advisable, in its sole discretion. The
Committee’s interpretations of the Plan and all
determinations made by the Committee pursuant to the powers vested
in it hereunder shall be conclusive and binding on all persons
having any interest in the Plan or in any grants awarded hereunder.
All powers of the Committee shall be executed in its sole
discretion, in the best interest of the Company, not as a
fiduciary, and in keeping with the objectives of the Plan and need
not be uniform as to similarly situated individuals.
2. Grants. Awards under the
Plan shall consist of grants (each, a “Grant”) of
nonqualified options (the “Options”), as described in
Section 5. All Grants shall be subject to the terms and
conditions set forth herein and to such other terms and conditions
consistent with this Plan as the Committee deems appropriate and as
are specified in writing by the Committee to the individual in a
grant instrument or an amendment to the grant instrument (the
“Grant Instrument”). The Committee shall approve the
form and provisions of each Grant Instrument. Grants need not be
uniform as among the Grantees (as defined below).
3. Shares Subject to the
Plan. (a) Nature of Options Granted. Each Option granted under
the Plan shall provide the Grantee solely the right to acquire
Shares in exchange for a dollar amount (the “Exercise
Price”) specified in such Option.
(b) Sources of Shares
Deliverable Under Options. Any Shares delivered pursuant to an
Option may consist, in whole or in part, of authorized and unissued
Shares or of treasury Shares.
(c) Share Certificates. All
certificates for Shares or other securities of the Company or any
Affiliate delivered under the Plan pursuant to any Option or the
exercise thereof shall be subject to such stop transfer orders and
other restrictions as the Committee may deem advisable under the
Plan or the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which
such Shares or other securities are then listed, and any applicable
federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate
reference to such restrictions.
(d) No Fractional Shares. No
fractional Shares shall be issued or delivered pursuant to the Plan
or any Option, and the Committee shall determine whether cash,
other securities, or other property shall be paid or transferred in
lieu of any fractional Shares or whether such fractional Shares or
any rights thereto shall be canceled, terminated, or otherwise
eliminated.
4. Eligibility for
Participation. (a) Eligible Persons. All officers and other
key employees of the Company and its Subsidiaries
(“Employees”) shall be eligible to participate in the
Plan. Effective March 19, 2002, no new Grants will be made
under the Plan, and eligible participants in the Plan shall consist
of those persons who hold, as of March 19, 2002, outstanding
Options granted under the Plan.
(b) Selection of Grantees.
The Committee shall select the Employees who receive Grants under
this Plan (the “Grantees”).
5. Granting of Options.
(a) Amount of Exercise Price. The Committee shall determine
the Exercise Price with respect to each Option at the time of
grant, which, except as the Committee may otherwise provide, shall
not be less than the Fair Market Value (as defined below) of the
Shares in respect of which the Option is granted. Subject to
adjustment as provided in Section 6 of this Plan, the
aggregate number of Shares for which Options may be issued under
this Plan shall not, in the aggregate, exceed 1,072,738
Shares.
(b) Type of Option. Grants
shall be “nonqualified options” that are not intended
to satisfy the provisions of Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”) and shall
be made in accordance with the terms and conditions set forth
herein.
(c) Option Term. The
Committee shall determine the term of each Option. The term of any
Option shall not exceed 10 years from the date of Grant.
(d) Exercisability of
Options; Conditions. Options shall become exercisable in accordance
with such terms and conditions, consistent with the Plan, as may be
determined by the Committee and specified in the Grant Instrument.
The Committee may accelerate the vesting
or exercisability of any or all
outstanding Options at any time for any reason. Unless the
Committee provides otherwise in the Grant Instrument, only Options
that are vested may be exercised and Options shall vest, subject to
the continuous employment of the Grantee by the Company, at the
rate of 33-1/3% for each year the Grantee is employed by, or
rendering services to, the Company following the date of Grant;
provided that, unless the Committee provides otherwise in the Grant
Instrument, no Option shall vest until the Grantee has been
employed by, or rendering services to, the Company for a period of
one year following the date of Grant.
(e) Termination of
Employment, Disability or Death. (i) Except as provided below
or as otherwise provided by the Committee in the Grant Instrument,
an Option may only be exercised while the Grantee is employed by,
or providing services to, the Company as an Employee, consultant or
member of the Board. Unless the Committee provides otherwise in the
Grant Instrument, in the event that a Grantee ceases to be employed
by, or provide services to, the Company for any reason other than
resignation (except resignation in connection with retirement) or
termination for Cause (as defined below), any Option which is
otherwise vested and exercisable by the Grantee shall terminate
unless exercised within 90 days after the date on which the Grantee
ceases to be employed by, or provide services to, the Company (or
within such other period of time as may be specified by the
Committee), but in any event no later than the date of expiration
of the Option term. Except as otherwise provided by the Committee,
any of the Grantee’s Options that are not otherwise vested
and exercisable as of the date on which the Grantee ceases to be
employed by, or provide services to, the Company shall terminate as
of such date.
(ii) Except as otherwise
provided by the Committee, in the event that the Grantee ceases to
be employed by, or provide services to, the Company on account of a
resignation (except resignation in connection with retirement) or a
termination for Cause by the Company, any Option held by the
Grantee (whether or not then vested and exercisable) shall
terminate and be canceled as of the date the Grantee ceases to be
employed by, or provide services to, the Company. Except as
otherwise provided by the Committee, any of the Grantee’s
Options that are not otherwise vested and exercisable as of the
date on which the Grantee ceases to be employed by, or provide
services to, the Company shall terminate as of such
date.
(iii) For purposes of
Section 5(d), Section 5(e) and Section 7:
(A) The term
“Company” shall mean the Company and its
Affiliates.
(B) “Employed by, or
provide services to, the Company” shall mean employment or
service as an employee, consultant or Board member (so that, for
purposes of exercising Options, a Grantee shall not be considered
to have terminated employment or service until the Grantee ceases
to be an employee, consultant or Board member), unless the
Committee determines otherwise.
(C) “Cause” shall
mean, except to the extent specified otherwise by the Committee in
the Grant Instrument, a finding by the Committee that the Grantee
(i) has breached his or her employment or service contract
with the Company, (ii) has engaged in disloyalty to the
Company, including, without limitation, fraud, embezzlement, theft,
commission of a felony or
proven dishonesty in the course of his
or her employment or service, (iii) has disclosed trade
secrets or confidential information of the Company to persons not
entitled to receive such information or (iv) has engaged in
such other behavior detrimental to the interests of the Company as
the Committee determines.
(f) Exercise of Options.
Except as otherwise provided by the Committee in the Grant
Instrument, a Grantee may exercise an Option that has become vested
and exercisable, in whole or in part, by delivering a notice of
exercise to the Company with payment of the Exercise Price (plus
the amount of any withholding tax due at the time of exercise after
the application of Section 7 hereof) and taking such other
action as the Committee may request or approve.
(g) Payment. (i) No
Shares shall be delivered pursuant to any exercise of an Option
until payment in full of the aggregate exercise price therefor is
received by the Company. Such payment may be made in cash, or its
equivalent, or (A) by exchanging Shares owned by the Grantee
(which are not the subject of any pledge or other security interest
and which have been owned by such Grantee for at least six
(6) months), or (B) if there shall be a public market for
the Shares at such time, subject to such rules as may be
established by the Committee, through delivery of irrevocable
instructions to a broker to sell the Shares otherwise deliverable
upon the exercise of the Option and to deliver promptly to the
Company an amount equal to the aggregate exercise price, or by a
combination of the foregoing; provided that the combined value of
all cash and cash equivalents and the Fair Market Value of any such
Shares so tendered to the Company as of the date of such tender is
at least equal to such aggregate exercise price.
(ii) Wherever in this Plan or
any Grant Instrument a Grantee is permitted to pay the exercise
price of an Option or taxes relating to the exercise of an Option
by delivering Shares, the Grantee may, subject to procedures
satisfactory to the Committee, satisfy such delivery requirement by
presenting proof of beneficial ownership of such Shares, in which
case the Company shall treat the Option as exercised without
further payment and shall withhold such number of Shares from the
Shares acquired by the exercise of the Option.
(h) Adjustments Upon
Conversion. As of March 19, 2002, no new Grants shall be made
under the Plan. The terms of Options granted under the Plan and
outstanding on March 19, 2002, shall continue, with
adjustments being made to such Options as appropriate as a result
of the conversion of membership interests in Asbury Automotive
Group, L.L.C. into Shares in connection with the Company’s
initial public offering.
6. Adjustments. (a) In
the event that the Committee determines that any dividend or other
distribution (whether in the form of cash, Shares, other
securities, or other property), stock split, reverse stock split,
reorganization, merger, consolidation, split-up, combination,
repurchase, or exchange of Shares or other securities of the
Company, issuance of warrants or other rights to purchase Shares or
other securities of the Company, or other similar corporate
transaction or event, other than an Equity Restructuring (as
defined below), affects the Shares such that an adjustment is
determined by the Committee in its discretion to be appropriate or
desirable in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under
the Plan, then the Committee shall, in such manner as it may deem
equitable or desirable, adjust any or all of (i) the number of
Shares or other securities of the Company (or
number and kind of other securities or
property) with respect to which Options may be granted, including
the maximum number of Shares or other securities of the Company (or
number and kind of other securities or property) with respect to
which Options may be granted to any Grantee in any fiscal year of
the Company; (ii) the number of Shares or other securities of
the Company (or number and kind of other securities or property)
subject to outstanding Options and (iii) the exercise price
with respect to any Option or, if deemed appropriate or desirable,
make provision for a cash payment to the holder of an outstanding
Option in consideration for the cancellation of such Option in an
amount equal to the excess, if any, of the Fair Market Value of the
Shares subject to the Options over the aggregate exercise price of
such Option.
(b) Amendments to Options.
The Committee may waive any conditions or rights under, amend any
terms of, or alter, suspend, discontinue, cancel or terminate, any
Option theretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the
rights of any Grantee or any holder or beneficiary of any Option
theretofore granted shall not to that extent be effective without
the consent of the affected Grantee holder or
beneficiary.
(c) Adjustment of Options
Upon the Occurrence of Cer
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