EXHIBIT 10.5
EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT (this "Agreement") is made and
entered into as of January 1, 2001, among Xxxxxx Automotive
Group L.L.C., a Delaware limited liability company ("Xxxxxx
Automotive" or the "Company"), and Xxxxxx X. Xxxxxx
("Executive").
WHEREAS, the Company and Executive were parties to a certain employment
agreement which has since expired; and
WHEREAS, the Company and Executive have continued in their employment
relationship; and
WHEREAS the Company wishes to continue the employment of Executive, and
Executive wishes to continue such employment, on the following terms and
conditions, effective as of January 1, 2001;
WHEREAS, Executive is a party to the Third Amended and Restated Limited
Liability Company Agreement of Xxxxxx Automotive dated as of February 1,
2000(the "LLC Agreement");
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein and for other good and valuable consideration, the Company and Executive
hereby agree as follows:
1. AGREEMENT TO EMPLOY. Upon the terms and subject to the conditions of
this Agreement, the Company hereby agrees to continue to employ Executive and
Executive hereby accepts employment by the Company.
2. TERM; POSITION AND RESPONSIBILITIES.
(a) TERM OF EMPLOYMENT. Unless this Agreement shall sooner terminate
due to the termination of Executive's employment pursuant to Section 6, the
Company shall employ Executive pursuant hereto for a term commencing the date
hereof and ending on the earlier of (i) December 31, 2003 (the "Termination
Date); (ii) on the date of the consummation of an IPO (as defined in the LLC
Agreement ) or
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a Merger Conversion (as defined in the LLC Agreement); and (iii) 60 days
after Executive delivers written irrevocable notice to the board of directors
of the Company (the "Board") that this Agreement is terminated (such term
referred to herein as the "Employment Period"). On or before the date that is
30 days prior to the Termination Date, the Company will advise Executive
whether the Company desires to extend Executive's employment beyond the
Termination Date, and, if the Company desires to extend Executive's
employment, the Company and Executive will negotiate in good faith the terms
of such extension prior to the Termination Date. If the Company does not
elect to extend Executive's employment beyond the Termination Date, Executive
may search for another position, provided that such job search does not
materially interfere with Executive's performance of his duties hereunder.
(b) POSITION AND RESPONSIBILITIES. During the Employment Period,
Executive will be a member of the Board and will be employed as Chairman of the
Company, provided that effective at any time subsequent to January 1, 2002, the
Board may in its sole discretion, change or authorize the change of Executive's
title. During the Employment Period, Executive's responsibilities will be
designated by the Chief Executive Officer in his sole discretion to include but
not be limited to manufacturer relations, developing leads for acquisitions and
supporting the acquisition group as needed and special projects. Executive will
devote all of his skill, knowledge and working time (except for (i) reasonable
vacation time and absence for sickness or similar disability and (ii) to the
extent that it does not interfere with the performance of Executive's duties
hereunder and is in compliance with normal policies of the Company, such
reasonable time as may be devoted to (x) the fulfillment of civic
responsibilities and (y) serving as a director on the board of directors of IKON
Office Solutions, Inc.) to the conscientious performance of such duties.
Executive will continue as a member of the Board subject to the mutual consent
of Executive and the Board. Executive represents that he is entering into this
Agreement voluntarily and that his employment and compliance by him with the
terms and conditions of this Agreement will not conflict with or result in the
breach of any agreement to which he is a party or by which he may be bound. The
term "Affiliate" means, with respect to any person, any other person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person; for purposes
of the
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foregoing definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect
to any person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such person,
whether through the ownership of voting securities, by contract or credit
arrangement, as trustee or executor, or otherwise.
3. COMPENSATION.
(a) SALARY. As full compensation for all services to be rendered by
Executive in the capacities referred to in the Agreement, the Company shall pay
to the Executive during the Employment Period an annual salary as follows: (i)
for the period January 1, 2001 through March 16, 2001 a prorated salary based
upon the rate of $525,000 per annum; (ii) for the period March 17, 2001 through
the balance of the Employment Period a prorated salary based upon the rate of
$250,000 per annum, payable in arrears in substantially equal monthly
installments.
(b) PURCHASE OF CARRIED INTEREST. Promptly following the execution of
this Agreement and the receipt of all necessary consents and authorizations, the
Company agrees to buy from Executive , and Executive agrees to sell to the
Company, Executive's Carried Interest (as such term is defined in the LLC
Agreement) for a purchase price equal to $2,250,000, and each of the Company and
Executive agrees to enter into an Assignment Agreement, substantially in the
form of Exhibit A hereto, concurrently with such purchase and sale. Executive
represents and warrants to the Company that he is the direct owner of the
Carried Interest, that his Carried Interest in the Company is 2.95%, and other
than the membership interest in the Company held by Xxxxxx Family Partnership,
L.P. as described in the LLC Agreement, neither he nor any of his Affiliates (i)
holds directly or indirectly an equity interest in the Company, Xxxxxx
Automotive Holdings, L.L.C. ("AAH") or any Affiliate thereof, or (ii) holds or
is a party to any other security, commitment, contract, arrangement or
undertaking obligating the Company, AAH or any Affiliate thereof to provide
Executive or any Affiliate of Executive additional equity interests in the
Company, AAH or any Affiliate thereof or that give Executive or any Affiliate of
Executive any right to receive any economic benefit derived from the economic
benefits and rights accruing to the members of the Company, AAH or any Affiliate
thereof.
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4. BENEFITS AND EXPENSES
(a) GENERAL. During the Employment Period, employee benefits, including
life, medical, dental and disability insurance, and executive perquisites will
be provided to Executive, in accordance with benefit plans of the Company
available to Executive as of the date hereof.
(b) VACATION. Executive shall be entitled to four weeks of paid
vacation per year.
(c) CERTAIN CLUB DUES. The Company shall reimburse Executive for annual
dues for membership in one country club selected by Executive.
(d) AUTOMOBILE. The Company shall reimburse Executive for the cost (up
to $2,000 per month) of leasing and operating one automobile.
(e) EXPENSES. The Company shall reimburse Executive for reasonable
travel, lodging and meal expenses incurred by him in connection with his
performance of services hereunder upon submission of evidence, satisfactory to
the Company, of the incurrence and purpose of each such expense.
5. LIMITATION ON EXPENSES AND CERTAIN BENEFITS. The Company shall
establish on an annual basis a budget for Executive's expenses and benefits,
including, without limitation, rent and utilities for Executive's office space,
secretarial support, travel and entertainment.
6. TERMINATION OF EMPLOYMENT.
(a) TERMINATION DUE TO DEATH OR DISABILITY. Executive's employment
shall automatically terminate upon his death or Disability. For purposes of this
Agreement, "Disability" shall mean a physical or mental disability or infirmity
that prevents the performance by Executive of his duties hereunder lasting (or
likely to last, based on competent medical evidence presented to the Board) for
a continuous period of six months or longer. The reasoned and good faith
judgment of the Board as to Disability shall be final and shall be based on such
competent medical evidence as shall be presented to it by Executive or by any
physician or group of physicians or other competent medical experts employed by
Executive or the Company to advise the Board.
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(b) TERMINATION BY THE BOARD FOR CAUSE. Executive's employment with the
Company may be terminated for "Cause" by the Board. "Cause" shall mean (i) the
willful failure of Executive substantially to perform his duties hereunder
(other than such failure due to physical or mental illness) for at least 10 days
after a demand for substantial performance is delivered to Executive by the
Board, which notice identifies the manner in which the Board believes that
Executive has not substantially performed his duties hereunder, (ii) Executive's
engaging in serious misconduct that is injurious to the Company or any of its
Affiliates, (iii) Executive's conviction of, or entering a plea of NOLO
CONTENDERE to, a crime that constitutes a felony involving moral turpitude, or
(iv) the breach by Executive of any written covenant or agreement with the
Company or any of their Affiliates not to disclose any information pertaining to
the Company or any of their Affiliates or not to compete or interfere with the
Company or any of the Affiliates, including without limitation the covenants set
forth in Sections 7, 8, 9 and 10 hereof.
(c) TERMINATION WITHOUT CAUSE. A termination "Without Cause" shall mean
a termination of employment by the Board other than due to death or Disability
as described in Section 6(a) or Cause as defined in Section 6(b).
(d) TERMINATION BY EXECUTIVE. Executive may terminate his employment
for "Good Reason". "Good Reason" shall mean a termination of employment by
Executive within 30 days following (i) any material breach by the Company of its
obligations under this Agreement, or (ii) the failure of the Company to obtain
the assumption of this Agreement by any successor as contemplated by Section 12,
PROVIDED that (i) Executive shall have given the Company written notice of the
circumstances constituting Good Reason and the Company shall have failed to cure
such circumstances within 20 days, and (ii) Executive shall not have caused the
occurrence constituting "Good Reason" through the exercise of his authority as
an officer of the Company.
(e) NOTICE AND EFFECT OF TERMINATION. Any termination of Executive's
employment by the Board pursuant to Section 6(a) (in the case of Disability),
6(b) or 6(c), or by Executive pursuant to Section 6(d), shall be communicated by
a written "Notice of Termination" addressed to the other party to this
Agreement. A "Notice of Termination" shall mean a notice stating that
Executive's
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employment hereunder has been or will be terminated, indicating the specific
termination provisions in this Agreement relied upon and setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
such termination of employment. Upon any termination of Executive's employment,
this Agreement shall terminate, except as set forth in Section 6(h), but
Executive's employment may continue at the discretion of the Board upon the
expiration or termination of this Agreement.
(f) PAYMENTS UPON CERTAIN TERMINATIONS.
(i) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON; NONRENEWAL. (A) In
the event of a termination of Executive's employment with the Company by
the Board Without Cause or a termination by Executive of his employment
with the Company for Good Reason, the Company shall pay to Executive his
salary at the annual rate in effect immediately prior to the Date of
Termination (it being agreed that such salary is not less than $250, 000),
if any, for the period from the Date of Termination (as defined in Section
6(g) below) through the last day of the Employment Period; PROVIDED that
the Company may, at any time, pay to Executive in a single lump sum an
amount equal to the Board's good faith determination of the present values
of the installments of the salary remaining to be paid to Executive, as of
the date of such lump sum payment, calculated using a discount rate equal
to the then prevailing interest rate payable on senior indebtedness of an
issuer rated "B" by Xxxxx'x Investors Service or Standard & Poor's (or the
then equivalent rating) having a term as close as practicable to the period
from the date of termination of employment through the last day of the
Employment Period.
(B) In addition, for so long as Executive is receiving (or, but for the
lump sum payment referred to in the proviso to Section 6(f)(i)(A) or
Section 6(f)(i)(C), would receive) his full salary pursuant to the
preceding sentence or pursuant to Section 6(f)(i)(C), Executive will
continue to receive the benefits to which he was entitled pursuant to
Sections 4(a), (c) and (d) as of the Date of Termination, and Executive
will be entitled to any vested benefits under any employee benefit plans
and, subject to the terms of the applicable stock option plans and stock
option agreement, to exercise any then
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exercisable and vested stock options. If for any reason at any time the
Company is unable to treat Executive as being or having been an employee of
the Company under any benefits plan in which he is entitled to participate
and as a result thereof Executive receives reduced benefits under such plan
during the period that Executive is continuing to receive his full base
salary, the Company shall provide Executive with such benefits by direct
payment or at the Company's option by making available equivalent benefits
(on a tax equivalent basis) from other sources. During the period that
Executive continues to receive his full salary pursuant to Section
6(f)(i)(A) or Section 6(f)(i)(C), Executive shall not be entitled to
participate in any of the Company's employee benefit plans that are
introduced after the Date of Termination or the date of consummation of the
IPO, as the case may be, except that an appropriate adjustment shall be
made if such new employee benefit plan is a replacement for or amendment to
an employee benefit plan in effect as of the Date of Termination or the
date of consummation of the IPO, as the case may be.
(C) In the event that Employment Period ends as a result of clause (ii)
of Section 2(a), the Company shall pay to Executive his base salary at the
annual rate then in effect immediately prior to the date of consummation of
the IPO (it being agreed that such salary is not less than $250, 000), for
a period of one year from the date on which Executive's employment is
terminated pursuant to clause (ii) of Section 2(a); PROVIDED that the
Company may, at any time, pay the Executive a single lump sum as specified
in the proviso to Section 6(f)(i)(A).
(ii) TERMINATION UPON DEATH OR DISABILITY OR FOR CAUSE. If Executive's
employment shall terminate upon his death or Disability or if the Board
shall terminate Executive's employment for Cause, the Company shall pay
Executive his full salary through the Date of Termination at the annual
rate in effect immediately prior to the Date of Termination.
(iii) OTHER TERMINATIONS BY EXECUTIVE. If Executive shall voluntarily
terminate his employment with the Company for other than Good Reason, he
shall be paid his salary through his Date of Termination.
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(g) DATE OF TERMINATION. As used in this Agreement, the term "Date of
Termination" shall mean (i) if Executive's employment is terminated by his
death, the date of his death, (ii) if Executive's employment is terminated by
the Board for Cause, the date on which Notice of Termination is given as
contemplated by Section 6(e), and (iii) if Executive's employment is terminated
by the Board Without Cause, due to Executive's Disability or by Executive for
Good Reason, 30 days after the date on which Notice of Termination is given as
contemplated by Section 6(e) or, if no such Notice is given, 30 days after the
date of termination of employment.
(h) LIMITATION. Anything in this Agreement to the contrary
notwithstanding, Executive's entitlement or payments under Section 6(f) or under
any other plan or agreement shall be limited to the extent necessary so that no
payment to be made to Executive on account or termination of his employment with
the Company will be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), as then in effect, but
only if, by reason of such limitation, Executive's net after tax benefit shall
exceed the net after tax benefit if such reduction were not made. "Net after tax
benefit" shall mean (i) the sum of all payments and benefits that Executive is
then entitled to receive under Section 6(f) or under any other plan or agreement
that would constitute a "parachute payment" within the meaning of Section 280G
of the Code, less (ii) the amount of federal income tax payable with respect to
the payments and benefits described in clause (i) above calculated at the
maximum marginal income tax rate for each year in which such payments and
benefits shall be paid to Executive (based upon the rate in effect for such year
as set forth in the Code at the time of the first payment of the foregoing),
less (iii) the amount of excise tax imposed with respect to the payments and
benefits described in clause (i) above by Section 4999 of the Code. Any
limitation under this Section 6(h) of Executive's entitlement to payments shall
be made in the manner and in the order directed by Executive. Upon Executive's
request and if the Company qualifies under Section 280G of the Code, the Company
will use its reasonable efforts to obtain the vote of more than 75% of all of
the voting interests of the Company held by persons other than Executive to
approve Executive's entitlement or payments under Section 6(f) or under any
other plan or agreement and to waive the restrictions of this Section 6(h).
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(i) PURCHASE OF EXECUTIVE'S STOCK UPON TERMINATION OF EMPLOYMENT. If
the Executive's employment is terminated for any reason whatsoever (whether in
connection with or following the expiration or termination of this Agreement),
the Company shall have an option to purchase all or any portion of the shares of
capital stock or other equity interests of the Company or any Affiliate thereof
(an "Investment Entity")(the "Shares") then held, directly or indirectly, by the
Executive or any of his Affiliates (including Xxxxxx Family Partnership, L.P.)
(when appropriate, the term "Executive" shall be deemed to include and/or refer
to any of his appropriate Affiliates)(or, if the Executive's employment was
terminated by the Executive's death, the Executive's estate) and shall have 60
days from the Date of Termination (such 60-day period being hereinafter referred
to as the "Option Period") during which to give notice in writing to the
Executive (or the Executive's estate) of its election to exercise or not to
exercise such option. If the Company has failed to exercise its option pursuant
to this Section 6(i) or have exercised such option with respect to less than all
of the Shares held by the Executive (or his estate) within the time period
specified herein, and if the Executive's employment is terminated by the
Executive for Good Reason, by the Board other than for Cause or by reason of the
Executive's death or Disability, then on notice from the Executive (or his
estate) in writing and delivered to the Company within 30 days following the end
of the Option Period, the Company shall be required to purchase all (but not
less than all) of the Shares then held by the Executive (or his estate). All
purchases pursuant to this Section 6(i) by the Company shall be for a purchase
price determined pursuant to and effected in the manner prescribed by Sections
6(j)-(l). the Company may assign its rights, but not its obligations, under this
Section 6(i) to any person. In the event that an Investment Entity shall have
consummated an Initial Public Offering (as defined below) prior to the Date of
Termination of Executive's employment, the Company shall not have any right or
obligation to purchase the Shares of such Investment Entity pursuant to this
Section 6(i). "Initial Public Offering" with respect to an Investment Entity
shall mean the sale after the date hereof of the shares of capital stock or
other equity interests of such Investment Entity to the public pursuant to an
effective registration statement filed under the Securities Act of 1933 but only
if the number of shares of capital stock or other equity interests sold to the
public upon the completion of such registration and sale (together with all
prior sales pursuant to
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registration statements) equals or exceeds 30% of the number of shares of
capital stock or other equity interests then outstanding.
(j) PURCHASE PRICE. (i) For the purposes of any purchase of the Shares
pursuant to Section 6(i), and subject to Section 6(l), the purchase price per
Share to be paid to the Executive (or his estate) for each Share (the "Purchase
Price") shall be the Fair Market Value (as defined in paragraph (ii) below) of
such Share as of the Date of Termination that gives rise to the right or
obligation to repurchase, PROVIDED that if the Executive's employment is
terminated for Cause, the Fair Market Value of such Shares shall be determined
without giving effect to any carried interest benefitting such Shares("a Carried
Interest").
(ii) Whenever determination of the Fair Market Value of the Shares of any
Investment Entity is required by this Agreement, such "Fair Market Value" shall
be such amount as is determined in good faith by the Board as of the date such
Fair Market Value is required to be determined hereunder. In making a
determination of Fair Market Value, the Board shall give due consideration to
such factors as it deems appropriate, including, without limitation, the
earnings and certain other financial and operating information of such
Investment Entity and its subsidiaries in recent periods, its potential value
and that of its subsidiaries as a whole, its future prospects and that of its
subsidiaries and the industries in which they compete, its history and the
management and that of its subsidiaries, the general condition of the securities
markets and the fair market value of securities of companies engaged in
businesses similar to those of such Investment Entity and its subsidiaries. The
determination of Fair Market Value with respect to any Investment Entity will
give effect to any Carried Interest benefitting the Shares being purchased
(except as set forth in the preceding paragraph (i)) or any portion of such
Carried Interest as if all of the shares of capital stock of such Investment
Entity were being sold for their aggregate fair market value as of the date such
Fair Market Value is required to be determined hereunder and as if the value of
any such Carried Interest or portion thereof were spread evenly among the Shares
benefitting from it. The Fair Market Value as determined in good faith by the
Board shall be binding and conclusive upon all parties hereto, PROVIDED the
Executive (or his estate) may engage a nationally-recognized investment banking
firm or independent accounting firm to review such determination, and if such
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firm delivers to the Company its written opinion to the effect that the
consideration be paid to Executive (or his estate) is not fair, from a financial
point of view, to Executive (or his estate), then "Fair Market Value" shall be
determined by arbitration in accordance with Section 15(b). The Company shall
use reasonable efforts to cause the Investment Entity that is the subject of
such review to cooperate with and provide necessary information to the firm
engaged by Executive (or his estate).
(k) PAYMENT. Subject to Section 6(l), the completion of a purchase
pursuant to Section 6(i) hereof shall take place at the principal office of the
Company on the 12th business day following (i) the date of receipt by the
Executive (or the Executive's estate) of the notice from the Company of the
exercise of its option pursuant to Section 6(i), or (ii) the date of the
Company's receipt of notice from the Executive (or his estate) that he (or it)
requires the Company to purchase Shares pursuant to Section 6(i). The Purchase
Price shall be paid by delivery to the Executive (or the Executive's estate) of
certified or bank checks for the Purchase Price payable to the order of the
Executive (or the Executive's estate), against delivery of certificates or other
instruments representing the Shares so purchased, appropriately endorsed by the
Executive (or the Executive's estate), free and clear of all security interests,
liens, claims, encumbrances, charges, options, restrictions on transfer, proxies
and voting and other agreements of whatever nature.
(l) CERTAIN RESTRICTIONS ON REPURCHASES. (i) Notwithstanding any other
provision of this Agreement, the Company shall not be obligated or permitted to
complete a purchase of any Shares from the Executive if (A) such purchase would
result in a violation of, or a default or an event of default under, any bona
fide term or provision imposed on the Company by another party in any credit
agreement, indenture, guaranty, security agreement or other agreement governing
indebtedness of the Company or any of its subsidiaries from time to time (such
agreements and instruments, as each may be amended, modified or supplemented
from time to time, "Financing Agreements"), in each case as the same may be
amended, modified or supplemented from time to time, and notwithstanding its
reasonable efforts the Company has not been able to have such term or provision
amended or waived, or (B) the Company is not permitted to complete such purchase
under applicable law.
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(ii) In the event that the completion of a purchase otherwise permitted or
required under Section 6(i) is prevented solely by the terms of Section 6(l),
the Company shall provide written notice thereof to the Executive and such
purchase will be postponed and will take place without the application of
further conditions or impediments (other than as set forth in Section 6(k)
hereof or in this Section 6(l)) at the first opportunity thereafter when the
Company has funds legally available therefor and when such purchase will not
result in any default, event of default or violation under any Financing
Agreements, PROVIDED that the Company shall not pay dividends or otherwise make
distributions to equity holders, other than tax distributions, until such
purchase is completed.
(iii) In the event that a repurchase of Shares from the Executive is delayed
pursuant to this Section 6(l), the purchase price per Share when the repurchase
of such Shares eventually takes place as contemplated by paragraph (ii) of this
Section 6(l) shall be equal to the Purchase Price per Share determined under
Section 6(j) as of the Date of Termination giving rise to such repurchase,
increased by interest on such Purchase Price for the period from the date such
repurchase would have taken place but for a delay of such repurchase pursuant to
Section 6(l) to the date on which the repurchase actually takes place (the
"Delay Period"), at an annual rate of interest equal to the prime rate announced
by Chemical Bank in New York, New York, from time to time during the Delay
Period.
(iv) The Company represents to Executive that, except for the Credit Agreement
dated January 17, 2001 between the Company and Ford Motor Credit Company,
Chrysler Financial Company LLC and General Motors Acceptance Corporation, no
circumstance described in clauses (A) or (B) of paragraph (i) of this Section
6(l) exists as of the date of this Agreement.
7. COVENANT NOT TO COMPETE. (a) In consideration of his employment
hereunder and in view of the key position in which he will serve the Company and
its Affiliates, Executive agrees that during the Employment Period and
thereafter until the later of (i) one year after the Date of Termination of such
employment and (ii) the last day of the period for which he receives (or, but
for the lump sum payment referred to in the proviso to Section 6(f)(i)(A), would
receive) his salary pursuant to
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Section 6(f)(i)(A), he will not directly or indirectly own any interest in,
manage, operate, control, be employed by, participate in or be connected in any
manner with the ownership, management, operation or control of any Competitor
Business (as defined below) in North America. The term "Competitor Business"
means (i) any business involving the acquisition or attempted acquisition "on a
national basis" (as defined below) of new or used automobile dealerships, (ii)
unless (A) Executive's employment is terminated by the Board without Cause or by
Executive for Good Reason or (B) the Company does not offer to extend
Executive's employment beyond the Termination Date in accordance with Section
2(a), any business that owns three or more new or used automobile dealerships in
the same market (other than the greater Philadelphia market) in which any
Investment Entity then owns, or is engaged in negotiations regarding the
acquisition of, any new or used automobile dealerships, or (iii) any other
business of the type being conducted by the Company which is or was engaged in
the retail automobile dealership or used car dealership industries at the
Termination Date. A business shall be deemed to involve the acquisition or
attempted acquisition of new or used automobile dealerships "on a national
basis" if it holds itself out as seeking to acquire, or if in the preceding
three years it has acquired, new or used automobile dealerships in three or more
states or provinces. The covenant contained in this Section 7 shall survive the
termination of this Agreement.
(b) The Company and Executive agree that the duration and territorial
extent of the covenant set forth in this Section 7 are properly required for the
adequate protection of the business of the Company and its Affiliates and that,
in the event such duration and/or territorial extent shall be deemed illegal,
unenforceable or unreasonable by a court or other tribunal of competent
jurisdiction, each of the parties hereto shall agree and submit to such other
duration and/or territorial extent as such court or tribunal shall deem
reasonable.
8. UNAUTHORIZED DISCLOSURE. (a) During and after the Employment Period,
without the written consent of the Board or a person authorized thereby, (i)
Executive shall not disclose to any person (other than an employee or director
of the Company or its Affiliates, or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance by Executive of his
duties under this Agreement) or use to compete with the Company or
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any of its Affiliates any confidential or proprietary information, knowledge or
data that is not theretofore publicly known and in the public domain obtained by
him while in the employ of the Company with respect to the Company or any of its
Affiliates 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
the Company or any of its Affiliates (collectively, "Proprietary Information"),
and (ii) Executive shall use best efforts to keep confidential any such
Proprietary Information and to refrain from making any such disclosure, in each
case except as may be required by law or as may be required in connection with
any judicial or administrative proceedings or inquiry.
(b) The covenant contained in this Section 8 shall survive the
termination of Executive's employment pursuant to this Agreement and shall be
binding upon Executive's heirs, successors and legal representatives.
9. NON-SOLICITATION OF EXECUTIVES. During the Employment Period and
thereafter until three years after the Date of Termination of such employment
(the "Non-Solicitation Restriction Period"), Executive shall not, directly or
indirectly, for his own account or the account of any other person or entity
with which he shall become associated in any capacity or in which he shall have
any ownership interest, (a) solicit for employment or employ any person (other
than Executive's secretary) who at the time of such solicitation for employment
is employed by or otherwise engaged to perform services for the Company or any
of its Affiliates, regardless of whether such employment or engagement is direct
or through an entity with which such person is employed or associated, or
otherwise intentionally interfere with the relationship of the Company or any of
its Affiliates with any person or entity who or which is at the time employed by
or otherwise engaged to perform services for the Company or any such Affiliate
or (b) induce any employee of the Company or any of its Affiliates to engage in
any activity which Executive is prohibited from engaging in under Sections 7, 8,
9 and 10 hereof or to terminate his or her employment with the Company or such
Affiliate.
10. RETURN OF DOCUMENTS. In the event of the termination of Executive's
employment for any reason, Executive will deliver to the Company all documents
and data of any nature pertaining to his work with the Company and
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its Affiliates, and he will not take with him any documents or data of any
description or any reproduction thereof, or any documents containing or
pertaining to any Proprietary Information.
11. INJUNCTIVE RELIEF WITH RESPECT TO COVENANTS. Executive acknowledges
and agrees that the covenants and obligations of Executive with respect to
noncompetition, non-disclosure, nonsolicitation, confidentiality and the
property of the Company and its Affiliates relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause the Company and its Affiliates irreparable injury for
which adequate remedies are not available at law. Therefore, Executive agrees
that the Company and its Affiliates (which shall be express third-party
beneficiaries of such covenants and obligations) shall be entitled to an
injunction, restraining order or such other equitable relief (with the
requirement to post bond) as a court of competent jurisdiction may deem
necessary or appropriate to restrain Executive from committing any violation of
the covenants and obligations contained in Sections 7, 8, 9 and 10. These
injunctive remedies are cumulative and in addition to any other rights and
remedies the Company or any such Affiliate may have at law or in equity.
12. ASSUMPTION OF AGREEMENT. The Company will require any successor (by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
reasonably satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. Failure of the
Company to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle Executive to
compensation from the Company in the same amount and on the same terms as
Executive would be entitled hereunder if the Company terminated his employment
Without Cause as contemplated by Section 6, except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
oCompanyo shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and delivers the
agreement provided for in this Section 12
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or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Company and Executive with respect to Executive's employment by the
Company and supersedes all prior agreements, if any, whether written or oral,
between them, relating to Executive's employment by the Company. This Agreement
may not be changed, waived, discharged or terminated orally, but only by an
instrument in writing, signed by the party against which enforcement of such
change, waiver, discharge or termination is sought. In the event of any conflict
between the terms of this Agreement and the terms of the LLC Agreement, this
Agreement will control.
14. INDEMNIFICATION. The Company agrees that it shall indemnify and
hold harmless Executive to the fullest extent permitted by the applicable law
from and against any and all liabilities, costs, claims and expenses including
without limitation all costs and expenses incurred in defense of litigation,
including attorney's fees, arising out of the employment of Executive hereunder,
except to the extent arising out of or based upon the gross negligence or
willful misconduct of Executive. If an IPO of the Company is consummated, the
Company will maintain directors and officers liability insurance providing $10
million of coverage, or such lesser amount, and having such other terms, as may
then be customary for similarly situated companies and available on commercially
reasonable terms.
15. MISCELLANEOUS.
(a) BINDING EFFECT. This Agreement shall be binding on and inure to the
benefit of the Company and their successors and permitted assigns. This
Agreement shall also be binding on and inure to the benefit of Executive and his
heirs, executors, administrators and legal representatives. If Executive's
employment is terminated by reason of his death, all amounts payable by the
Company pursuant to Section 6(f)(ii) (or if Executive shall die after his
employment has terminated, any remaining amount of salary and incentive
compensation payable by the Company pursuant to Section 6(f)(i)) shall be paid
in accordance with the terms of this Agreement to Executive's devisee, legatee,
or other designee or, if there be no such designee, to his estate.
17
(b) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement (except any dispute or controversy arising under
Section 7, 8, 9 or 10 hereof) shall be resolved exclusively by binding
arbitration in New York, New York in accordance with the National Rules for
Settlement of Employment Disputes of the American Arbitration Association then
in effect at the time of the arbitration, and otherwise in accordance with
principles which would be applied by a court of law or equity. The arbitrator
shall be acceptable to the Company and to Executive. If the parties cannot agree
on an acceptable arbitrator, the dispute shall be heard by a panel of three
arbitrators one appointed by each of the parties and the third appointed by the
other two arbitrators. Any expense of arbitration shall be borne by the party
who incurs such expense and joint expenses shall be shared equally.
(c) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws.
(d) TAXES. The Company may withhold from any payments made under the
Agreement all federal, state, city or other applicable taxes as shall be
required pursuant to any law, governmental regulation or ruling.
(e) AMENDMENTS. No provisions of this Agreement may be modified, waived
or discharged unless such modification, waiver or discharge is approved by the
Board or a person authorized thereby and is agreed to in writing by Executive
and such officer as may be specifically designated by the Board. No waiver by
any party hereto at any time of any breach by any other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No waiver of any
provision of this 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. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not set forth
expressly in this Agreement.
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(f) SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
(g) NOTICES. Any notice or other communication required or permitted to
be delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by courier service or by certified or registered mail, first-class
postage prepaid and return receipt requested, (iii) deemed to have been received
on the date of delivery or on the third business day after the mailing thereof,
and (iv) addressed as follows (or to such other address as the party entitled to
notice shall hereafter designate in accordance with the terms hereof):
(A) if to the Company:
Xxxxxx Automotive Group
Three Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
(B) if to Executive, to him at the address listed on the signature page
hereof
with a copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(h) SURVIVAL. Sections 6(i)-(l), 7, 8, 9, 10, 11, 12, 13, the first
sentence of Section 14 and, if Executive's employment terminates in a manner
giving rise to a payment under Section 6(f), Sections 6(f) and (h) shall survive
the termination of this Agreement and the termination of the employment of
Executive.
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(i) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same instrument.
(j) HEADINGS. The section and other headings contained in this
Agreement are for the convenience of the parties only and are not intended to be
a part hereof or to affect the meaning or interpretation hereof.
(k) RECUSAL. Executive shall recuse himself from all deliberations of
the Board regarding this Agreement, Executive's employment by the Company or
related matters.
IN WITNESS WHEREOF, the Company have duly executed this Agreement by
their authorized representatives and Executive has hereunto set his hand, in
each case effective as of the date first above written.
XXXXXX AUTOMOTIVE GROUP L.L.C.
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President & CEO
Executive:
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
Address: Xxxxxx X. Xxxxxx
000 Xx. Xxxx Xxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
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EXHIBIT A
ASSIGNMENT AGREEMENT
ASSIGNMENT AGREEMENT, dated as of [ ], 2001, among Xxxxxx Xxxxxx
("Assignor") and Xxxxxx Automotive Group L.L.C., a Delaware limited liability
company ("Assignee").
(a) In exchange for the receipt of $2,250,000 and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Assignor hereby assigns and transfers to Assignee, as of the date
hereof, all of Assignor's right, title and interest in and to Assignor's Carried
Interest (as such term is defined in the Third Amended and Restated Limited
Liability Company Agreement of Xxxxxx Automotive Group L.L.C. (formerly known as
Xxxxxx Automotive Oregon L.L.C.) dated as of February 1, 2000)(the "Interest").
(b) Each of the Assignor and the Assignee hereby represents and
warrants to its counter party, as of the date hereof, that it has all requisite
power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Assignor or the Assignee,
as the case may be, of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of the Assignor or the Assignee, as the case may be.
(c) Assignor hereby represents and warrants to the Assignee that he is
the record and beneficial owner of, and has good and marketable title to, the
Interest, free and clear of any liens.
(d) This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which taken together shall constitute one and
the same instrument. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to conflict
of law principles.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement as of the date first above written.
By /s/ Xxxxxx Xxxxxx
---------------------------
Xxxxxx Xxxxxx
XXXXXX AUTOMOTIVE GROUP L.L.C.
By /s/ Xxxxx Xxxxxxxx
---------------------------
Name: Xxxxx Xxxxxxxx
Title: President & CEO
