EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of the 20th day of April, 1998 between
HOMETOWN AUTO RETAILERS, INC., a Delaware corporation (the "Company"), with its
principal place of business at 000 Xxxxxxx Xxxxxxxx, Xxxxxxxxx, XX 00000 and
XXXXXX XXXXXX ("Executive"), residing at 000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000.
1. Term.
(a) Subject to the terms and conditions hereof, the term of employment of
the Executive under this Agreement shall be for the five year period (the
"Employment Period") commencing (the "Commencement Date") on the closing date of
the initial public offering of the Common Stock of the Company (the "Offering")
and expiring on the fifth anniversary thereof, unless sooner terminated as
provided in any of Sections 5, 6 or 7 hereof (the "Termination Date").
(b) The parties agree to use their reasonable best efforts to commence
discussions beginning on the fourth anniversary of the Commencement Date with
respect to the status of the Executive's employment after the Termination Date.
2. Duties and Responsibilities. The Company shall employ the Executive,
and the Executive accepts such employment, as President and Chief Operating
Officer of the Company during the Employment Period. The Executive shall report
to and be
subject to the direction of the Board of Directors of the Company (the "Board")
and shall render such executive and administrative services as the Board may
from time to time assign to him, provided they are consistent with his status as
President and Chief Operating Officer. During the Employment Period, the
Executive shall devote his full time, energy, skill and attention to the
businesses of the Company and shall perform his duties in a diligent,
trustworthy, loyal and businesslike manner.
3. Compensation and Benefits. During the Employment Term:
(a) The Executive's base compensation shall be at the rate of
$200,000.00 per year, payable in regular installments in accordance with the
Company's practice for its executives, less applicable withholding for income
and employment taxes as required by law and other deductions as to which the
Executive shall agree. Such base compensation shall be subject to increases as
and when determined by the Board in its sole discretion.
(b) Except as otherwise herein provided, the Executive shall be
entitled to participate, to the extent he qualifies, in any bonus or other
incentive compensation, profit-sharing or retirement plans, life or health
insurance plans or other benefit plans maintained by the Company, upon such
terms and conditions as are generally made available to executives of the
Company.
(c) The Executive shall be entitled to reimbursement of all
reasonable, ordinary and necessary business related expenses incurred by him in
the course of his duties and upon compliance with the Company's procedures.
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(d) The Executive shall be entitled to paid vacation during each
calendar year in accordance with the policies and procedures of the Company in
effect from time to time.
4. Stock Options. The Company's present intention is to adopt a Stock
Option Plan (the "Stock Option Plan"). Promptly following its adoption of the
Stock Option Plan, the Company shall grant to the Executive options (the "Stock
Options") to acquire 36,500 shares of Class A Common Stock, par value $.001 per
share, of the Company (the "Common Stock") at a price equal to the per share
price to the public in the Offering and upon such other terms and conditions as
are set forth therein. Such Stock Options are intended to constitute Incentive
Stock Options as defined in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") to the maximum extent permitted under the Code. Such Stock
Options may be exercised at such time and in such manner as provided in the
Stock Option Agreement; provided, however, that one-third of such Stock Options
shall vest and become exercisable on each anniversary of the Commencement Date
during the Employment Period. In the event that the Executive's employment is
terminated for any reason other than death or Disability (as defined in Section
5 hereof) any nonvested Incentive Stock Options shall immediately be cancelled
without any further action being required to be taken by the Company.
5. Termination in Case of Disability; Death. In case of a Disability
which, for purposes of this Agreement only, shall mean that as a result of
illness or injury, the Executive is unable substantially to perform his duties
hereunder for a period of at least 180 consecutive days, or a total of at least
270 days in any period of 365 consecutive days, the Company may terminate the
Executive's employment hereunder upon giving
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the Executive at least thirty (30) days' written notice of termination. In
addition, this Agreement shall automatically terminate upon the death of the
Executive.
6. Termination by the Company for Cause.
(a) The Company may terminate the Executive's employment for Cause
(as defined in paragraph (b) below). Upon such termination, the Company shall
have no further obligations to the Executive on account of his employment by the
Company.
(b) "Cause" shall mean (i) a material breach by the Executive of any
of the terms, covenants, agreements or representations set forth herein, or (ii)
the Executive's engaging in misconduct which is materially injurious to the
Company, monetarily or otherwise, including, but not limited to, engaging in any
conduct which constitutes a crime under federal, state or local laws (other than
minor traffic violations).
7. Termination by the Executive for Good Reason. The Executive may
terminate his employment for "Good Reason" if: (i) he is assigned, without his
express written consent, any duties inconsistent with his positions, duties,
responsibilities, authority and status with the Company as of the date hereof,
or any adverse change in his reporting responsibilities or titles as in effect
as of the date hereof except in connection with the termination of his
employment by him without Good Reason; or (ii) his compensation is reduced other
than in connection with a Company-wide reduction of executive compensation. Upon
such termination, the Company's sole obligation to the Executive, in addition to
paying any amounts owed to the Executive through the date of termination, shall
be to continue paying the base compensation provided for herein, subject to any
reduction permitted by applicable law in connection with the Executive's
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duty to mitigate such damages. The Executive hereby agrees that he shall not
have any other claims or rights against the Company.
8. Date and Terms of Termination. "Date of Termination" shall mean the
date on which a notice of termination is given. In the event of termination
under paragraph 5, 6 or 7, the Executive or his estate, as the case may be,
shall be entitled to salary and benefits accrued to the Date of Termination, as
well as the right to convert benefits such as health, disability and life
insurance to his own name and continue the same at his own expense. In the event
of termination by the Executive pursuant to paragraph 7, there shall be no duty
on the part of the Executive to mitigate damages which may be suffered by the
Company on account of such termination.
9. Certain Employee Covenants.
9.1 Confidentiality. The Executive agrees that during the term hereof, or
at any time thereafter, he will not, directly or indirectly, use for his own
benefit or for the benefit of any third party, or reveal or cause to be revealed
to any person, firm, entity or corporation, any Confidential Information (as
defined herein) which relates to the Company or any Affiliate of the Company or
any of their customers and that upon termination of his employment he will
deliver all lists of customers, notes, records and all other property belonging
to the Company or any Affiliate of the Company or relating to its or their
business or customers. "Confidential Information" shall include, but not be
limited to, trade secrets, supplier lists, customer lists, intellectual property
and any other information, whether or not proprietary, which relates to the
business of the Company or any Affiliate of the Company and which otherwise is
not considered to be public information. Confidential Information shall not
include general information regarding
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the automotive industry which is generally known to those involved in the
operation of an automotive dealership.
9.2 Non-Compete. The Executive further agrees that during the term of this
Agreement and for a period of two (2) years after the termination of this
Agreement, he will not, directly or indirectly, in any manner: (i) engage in any
other business in which the Company or any Affiliate of the Company is engaged
on the Date of Termination within a 20-mile radius of any business then
conducted by the Company or any Affiliate of the Company, and will not, directly
or indirectly, own, manage, operate, join, control or participate in the
ownership, management, operation or control of, or be employed by or connected
in any manner with any corporation, firm, entity, or business that is so engaged
unless duly authorized by written consent of the Company; provided, however,
that nothing herein shall prohibit the Executive from owning not more than three
(3%) percent of the outstanding stock of any publicly held corporation, (ii)
persuade or attempt to persuade any employee of the Company or of any Affiliate
of the Company to leave the employ of the Company or of such Affiliate or to
become employed by any other entity, (iii) persuade or attempt to persuade any
current client or former client to reduce the amount of business it does or
intends or anticipates doing with the Company or with any Affiliate of the
Company or (iv) take any action which might divert from the Company or any
Affiliate of the Company any opportunity of which he became aware during his
employment with the Company or with any Affiliate of the Company which would be
within the scope of any of the businesses then engaged in or planned to be
engaged in by the Company or any Affiliate of the Company.
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9.3 General Provisions.
(a) The Executive acknowledges that a violation of any of the covenants
contained in this paragraph 9 may cause irreparable injury to the Company or any
Affiliate of the Company and that the Company, including any Affiliate of the
Company, will be entitled, in addition to any other rights and remedies it may
have, to injunctive relief; provided, however, that nothing contained herein
constitutes a waiver by the Executive of his rights to contest the existence of
any such violation of such covenants.
(b) In the event the covenants contained in this paragraph 9 should be
held by any court or other duly constituted judicial authority to be void or
otherwise unenforceable in any particular jurisdiction or with respect to any
particular activity, then such covenants so affected shall be deemed to have
been amended and modified so as to eliminate therefrom the particular
jurisdiction or activity as to which such covenants are so held to be void or
otherwise unenforceable, and, as to all other jurisdictions and activities
covered hereby, the terms and provisions hereof shall remain in full force and
effect.
(c) As used herein, the term "Affiliate" shall mean any corporation or
other entity of which the Company owns, directly or indirectly, at least 40% of
the equity interest thereof.
(d) In the event that this Agreement shall be terminated, then
notwithstanding such termination, the provisions of this paragraph 9 shall
survive such termination.
10. Executive Representations. The Executive hereby represents and
warrants to the Company that he is not a party to any other agreement or
understanding, whether of employment or otherwise, which would in any way
restrict or prohibit him
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from undertaking or performing the duties and obligations provided for herein in
accordance with the terms and conditions of this Agreement.
11. Successors; Binding Agreement. This Agreement shall inure to the
benefit of and be enforceable by the parties hereto, their personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amount would still
be payable to him hereunder had he continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there be no such
designee, to his estate.
12. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement (except that
all notices to the Company shall be directed to the attention of a senior
officer of the Company other than the Executive, with a copy to the Secretary of
the Company) or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of address
shall be effective only upon receipt.
13. Governing Law; Change or Termination. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Connecticut
applicable to agreements made and to be performed in Connecticut, and may not be
changed or terminated orally.
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14. Validity. The invalidity or unenforceability of any provision of this
Agreement in any respect shall not affect the validity or enforceability of such
provision in any other respect or of any other provision of this Agreement, all
of which shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be duly executed and delivered as of the date first hereinabove
written.
Hometown Auto Retailers, Inc.
By:
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Xxxxxxxxx X. Xxxxxxxx
Chairman of the Board and
Chief Executive Officer
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Xxxxxx Xxxxxx
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