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Exhibit
10.25
ASBURY AUTOMOTIVE GROUP,
INC.
2002 EQUITY INCENTIVE
PLAN
PERFORMANCE SHARE UNIT AWARD
AGREEMENT
PERFORMANCE SHARE UNIT AWARD
AGREEMENT UNDER THE ASBURY AUTOMOTIVE GROUP, INC. 2002 EQUITY
INCENTIVE PLAN dated as of date between Asbury Automotive Group,
Inc. (the “ Company ”), a Delaware corporation,
and {NAME}.
This Performance Share Unit
Award Agreement (the “ Award Agreement ”) sets
forth the terms and conditions of a target award of {X} performance
compensation shares (the “ Award ”) that are
subject to the terms and conditions specified herein (“
Performance Awards ”) and that are granted to you
under the Asbury Automotive Group, Inc. 2002 Equity Incentive Plan
(the “ Plan ”). This Award provides you with the
opportunity to earn, subject to the terms of this Award Agreement,
shares of the Company’s common stock, $0.01 par value
(“ Shares ”).
THIS AWARD IS SUBJECT TO ALL
TERMS AND CONDITIONS OF THE PLAN AND THIS AWARD AGREEMENT. BY
SIGNING YOUR NAME BELOW, YOU WILL HAVE CONFIRMED YOUR ACCEPTANCE OF
THE TERMS AND CONDITIONS OF THIS AWARD AGREEMENT.
SECTION 1.
Definitions. Capitalized terms used in this Award Agreement
that are not defined in this Award Agreement have the meanings as
used or defined in the Plan. As used in this Award Agreement, the
following terms shall have the meanings set forth below:
“ Cause ”
shall have the meaning set forth in any employment agreement then
in effect between you, on the one hand, and the Company or any of
its Affiliates, on the other hand, or, if not defined in any such
agreement, “Cause” shall mean a finding by the
Committee of any of the following: (a) your being convicted
of, or entering a plea of nolo contendere to, any crime that
constitutes a felony or involves moral turpitude, (b) your
gross negligence or serious misconduct (including, without
limitation, any criminal, fraudulent or dishonest conduct) that is
injurious to the Company or any of its Affiliates, (c) your
material breach of your employment or service contract with the
Company or any of its Affiliates, (d) your willful and
continued failure to substantially perform your duties with the
Company and it’s Affiliates or (e) your material breach
of a material written policy of the Company, in each case (with
respect to clauses (b), (c), (d) and (e)) which is not
corrected within 30 days after written notice from the Company. The
determination of the existence of Cause shall be made by the
Committee in good faith.
“ Committee
” shall mean the compensation committee of the Board, or such
other committee of the Board as may be designated by the Board to
administer the Plan.
“ Determination
Date ” means the date, as determined by the Committee, on
which the Committee determines whether and to what extent the
Performance Goals with respect to the Award have been achieved;
provided that such date shall be no later than
March 15, 2010.
“ Performance
Commencement Date ” means January 1,
2007.
“ Performance
Cycle ” means calendar years 2007 through
2009.
SECTION 2. (a)
Performance-Based Right to Payment. The number of Shares
that shall be issued pursuant to the Award shall be determined
based on the Company’s achievement of Performance Goals as
set forth on Exhibit A . On the Determination Date, the
Committee in its sole discretion shall determine whether and to
what extent the Performance Goals as set forth on Exhibit A
have been attained. Except as otherwise provided in Section 4
of this Award Agreement, the payment of Shares with respect to your
Performance Awards is contingent on the attainment of the
Performance Goals as set forth on Exhibit A . Accordingly,
except as otherwise provided in Section 4 of this Award
Agreement, you will not become entitled to payment with respect to
the Performance Awards subject to this Award Agreement unless and
until the Committee determines that the Performance Goals set forth
on Exhibit A have been attained. Upon such determination by
the Committee and subject to the provisions of the Plan and this
Award Agreement, you shall be entitled to payment of that portion
of this Award as corresponds to the Performance Goals attained (as
determined by the Committee in its sole discretion) as set forth on
Exhibit A . Furthermore, pursuant to Section 3 (except
as otherwise provided therein) and except as otherwise provided in
Section 4 of this Award Agreement, in order to be entitled to
payment with respect to any Performance Awards, you must be
employed by the Company or an Affiliate on the Payment Date,
provided that, to the extent payments pursuant to this Award
Agreement are attributable to Dividend Equivalents (as defined in
Section 6), such payments will be made in cash.
(b) Payment of Award.
The Committee shall determine the date on which payments pursuant
to this Award Agreement shall be made (the “ Payment
Date ”); provided that (i) the Payment Date
shall not be any earlier than the Determination Date and
(ii) except as otherwise provided in Section 4(a)(ii) of
this Award Agreement, the Payment Date shall not be earlier than
January 1, 2010, and not later than March 15, 2010.
Notwithstanding anything herein to the contrary, the Payment Date
shall be within the period required by Section 409A of the
Code, such that the payment qualifies as a “short-term
deferral” pursuant to Section 1.409A-1(b)(4) of the
Department of Treasury regulations. Except as otherwise provided in
Section 4 of this Award Agreement, payments made pursuant to
this Award Agreement shall be payable in Shares.
SECTION 3. Forfeiture of
Performance Awards. Except as otherwise provided in
Section 4 of this Award Agreement, if your employment with the
Company and its Affiliates terminates prior to the Payment Date,
your rights with respect to any Performance Awards awarded to you
pursuant to this Award Agreement shall immediately terminate, and
you will be entitled to no payments or benefits with respect
thereto, unless the Committee, as permitted pursuant to the terms
of the Plan, determines in its sole discretion otherwise (in which
case any payment to be made to you pursuant to
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this Award Agreement will be made to you
on the Payment Date and, for the avoidance of doubt, within the
period required by Section 409A of the Code, such that it
qualifies as a “short-term deferral” pursuant to
Section 1.409A-1(b)(4) of the Department of Treasury
regulations).
SECTION 4. Change of
Control. In the event of a Change of Control after the date of
this Award Agreement, the provisions of this Section 4 shall
apply.
(a) Timing of Payment.
In the event of a Change of Control after the date of this Award
Agreement and prior to the Payment Date, to the extent your rights
with respect to Performance Awards have not previously been
terminated in connection with the termination of your employment
with the Company and its Affiliates prior to such Change of
Control, payments made pursuant to this Award Agreement:
(i) shall be paid on the
Payment Date, provided you remain continuously employed with
the Company and its Affiliates through the Payment Date;
(ii) shall be paid promptly
following the date of your termination of employment with the
Company and its Affiliates if your employment is involuntarily
terminated (other than for Cause) by the Company and its Affiliates
following such Change of Control (but in no event later than the
fifteenth day of the third month following the calendar year in
which such termination occurs); or
(iii) shall be forfeited if
your employment with the Company and its Affiliates is terminated
prior to the Payment Date for any reason other than an involuntary
termination described in the preceding clause (ii).
(b) Form of Payment.
If the Change of Control occurs prior to the Payment Date, any
amount to be paid under this Award Agreement shall be paid (at such
time as determined in accordance with paragraph (a) above) in
equity securities of the successor corporation (the “
Acquiror Securities “) with the number of such
Acquiror Securities determined by calculating the number of Shares
earned under this Award Agreement (as determined in accordance with
paragraph (c) below) and converting such Shares on the same
basis as the conversion applicable to holders of Shares generally
in connection with the Change of Control; provided ,
however , that if the consideration received by holders of
Shares generally in connection with the Change of Control is not
solely Acquiror Securities, the Committee may, with the consent of
the successor corporation, provide that the amount to be paid under
this Award Agreement will be solely in the form of Acquiror
Securities (other than any amount in respect of Dividend
Equivalents, which shall be paid in cash in accordance with
Section 6) equal in fair market value to the per Share
consideration received by holders of Shares generally in connection
with the Change of Control. Notwithstanding the foregoing, the
successor corporation may elect, no later than 90 days following a
Change of Control (but in no event later than the scheduled payment
date determined in accordance with paragraph (a) above), to
settle (at such time as determined in accordance with paragraph
(a) above) the Performance Awards in a lump-sum cash payment
(in lieu of settling such Performance Awards with Acquiror
Securities) in an amount equal to the product of (i) the
number of Shares earned under this Award Agreement (as determined
in accordance with paragraph
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(c) below) and (ii) the fair market
value per Share at the time of the Change of Control, as determined
by the Committee in its sole discretion, and an amount equal to the
value of the Dividend Equivalents retained by the Company with
respect to the Shares as of the Change of Control shall be added to
the product of the foregoing clauses (i) and (ii);
provided , however , that, in the event the
consideration received by holders of Shares in connection with the
Change of Control is paid solely in cash, the successor corporation
shall be deemed to have made such election as of the time of such
Change of Control.
(c) Determination of
Performance Results. (i) If the Change of Control occurs
prior to the first anniversary of the Performance Commencement
Date, the P
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