SEPARATION AGREEMENT AND GENERAL RELEASE
Exhibit 10.3
Xxxxxx Automotive Group, Inc. (the "Company"), and Xxxxxxx X. Xxxxx ("Employee") have entered into this Separation Agreement and General Release (this "Agreement") as of this 25th day of June 2021 (the "Agreement Date"). In consideration of the mutual promises contained in this Agreement, Company and Employee (together, the “Parties”) agree as follows:
1. Voluntary Resignation and Separation from Employment.
(a)As of 11:59 p.m. on June 24, 2021 (the "Separation Date"), Employee will resign his position as Senior Vice President and Chief Financial Officer for the Company.
(b)Employee's Severance Pay Agreement for Key Employee with the Company, executed effective May 11, 2020, and attached hereto as Exhibit A (the "Severance Pay Agreement") is hereby immediately terminated, except that Sections 3, 4, 5, 6 and 7 will survive termination of the Severance Pay Agreement. Employee hereby acknowledges and affirms that he is subject to, and has complied and will continue to comply with, the obligations under Sections 3, 4, 5, 6 and 7 of the Severance Pay Agreement.
(c)Effective as of 11:59 p.m. on the Separation Date:
(i)Employee's employment with the Company and its subsidiaries and affiliates (the "Company Group") will terminate as a result of his voluntary resignation and such resignation will be reflected in the personnel records of the Company;
(ii)Employee's salary and benefits from the Company Group will cease to accrue (except as described below) and Employee will no longer have any right to contribute to any employee benefit plans or programs of any member of the Company Group;
(iii)Employee will resign all positions Employee held as an officer, director, manager or employee of, and relinquish all titles and authorities with respect to, the Company Group, and will promptly execute such documents and take such actions as may be necessary or reasonably requested by any member of the Company Group to effectuate or memorialize the resignation of such positions and relinquishment of such titles and authorities; and
(iv)Employee's resignation and separation on the Separation Date pursuant to Section l(c) will be a "separation from service," as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations and official guidance issued thereunder ("Section 409A").
2. Payments and Other Consideration. If Employee (i) executes and does not revoke this Agreement during the revocation period described in Section 22, and (ii) continues to comply with the terms and conditions of this Agreement, and Sections 3, 4, 5, 6 and 7 of the Severance Pay Agreement, then:
(a) Salary Continuation. The Company will continue to pay Employee his base salary for a period of 52 weeks following the Separation Date in accordance with the Company's regular payroll practices; provided that such payments shall not commence until the day following the date this Agreement may no longer be revoked (the "Release Effective Date"), and provided further that any payments which would have been made prior to the date this Agreement may no longer be revoked will be paid on the first regular payroll date following the Release Effective Date.
(b) Cash Bonus. The Company will pay Employee a pro rata portion of his annual bonus for 2021 under the Company's Corporate Office Incentive Program (the "Bonus Plan"), equal to the amount of the bonus that Employee would have received if his employment had not been terminated during 2021, multiplied by the percentage of such year that has expired through the Separation Date. The annual bonus will be paid at such time as bonuses are paid under the Bonus Plan to the Company's other participants thereunder whose employment was not terminated.
(c) Health and Dental Insurance. Employee will be entitled to continue to participate at the same level of coverage and Employee contribution in any Company health and dental insurance plans, as may be amended from time to time, in which Employee was participating immediately prior to the Separation Date for a period of fifty-two (52) weeks commencing on the Release Effective Date. In order for Employee to receive this benefit, Employee must timely and properly elect COBRA for any medical, dental and vision benefit plans in which Employee was participating immediately prior to the end of Employee’s employment with the Company and the Company shall continue to pay its portion of the monthly premium for those COBRA-covered medical, dental and vision benefit plans for a period of 52 weeks after the last day of Employee’s employment with the Company. Notwithstanding the above, if Employee obtains other employment (prior to the end of the 52 week COBRA reimbursement period) under which Employee is eligible to be covered by benefits equal to the benefits in his COBRA-elected plans, the Company’s obligation to reimburse Employee ceases upon Employee’s eligibility for such equal benefits. Employee agrees to notify the Company promptly upon obtaining such other employment.
(d)Employee agrees that no additional compensation of any kind (e.g., wages, salaries, commissions, bonuses, vacation/holiday pay, unvested equity awards, insurance, benefits, allowances, etc.) is due Employee now or in the future except as specifically described in this Section 2.
3. General Release of Claims.
(a) Release. In exchange for the payments and benefits set forth in Section 2 and the obligations set forth in Section 1, Employee and his affiliates, heirs, beneficiaries, personal representatives, agents, successors and assigns and their respective successors and assigns (collectively, the "Releasing Parties"), hereby forever knowingly, voluntarily, unconditionally and absolutely release, acquit, remise and discharge the Company Group, and each member of the Company Group's past, present, and future officers, directors, managers, stockholders, members, employees, trustees, agents, representatives, affiliates, successors and assigns, including all affiliated dealerships (collectively, the "Released Parties"), from any and all claims, claims for relief, demands, actions and causes of action of any kind or description whatsoever,
known or unknown, whether arising out of contract, tort, statute, treaty or otherwise, in law or in equity, which a Releasing Party now has, has had, or may hereafter have against any of the Released Parties) (each a "Potential Claim") from the beginning of time through the Agreement Date, including those directly or indirectly arising from, connected with, or in any way related to:
(i)Employee's employment by any member of the Company Group;
(ii) Employee's service as a director, officer, manager or employee, as the case may be, of any member of the Company Group;
(iii)any transaction prior to the Agreement Date, including all effects, consequences, losses and damages relating thereto;
(iv)any services provided by Employee to any member of the Company Group;
(v)the Severance Pay Agreement or any documents ancillary thereto; or
(vi)Employee's resignation and separation from employment with any member of the Company Group under any law, including the common law or any federal or state statute, including all claims arising under Title VII of the Civil Rights Act of I 964, the Civil Rights Act of 1991, the False Claims Act, 31 U.S.C.A. § 3730, including any right to personal gain with respect to any claim asse1ied under its "qui tam" provisions; Sections 1981 through 1988 of Title 42 of the United States Code, the Employee Retirement Income Security Act of 1974, the Immigration Reform and Control Act, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967 (the "ADEA''), including all rights and claims under the ADEA, the Older Workers' Benefit Protection Act of 1990, the Workers Adjustment and Retraining Notification Act, the Occupational Safety and Health Act, Georgia Equal Employment of Persons with Disabilities Code, Georgia Sex Discrimination in Employment Act, Georgia Wage Payment Act, Georgia Fair Employment Practices Act of 1978, the Georgia Code of Ordinances, any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance, any public policy, contract, tort, or common law or any allegation for costs, fees, or other expenses including attorneys' fees incurred in these matters (the Potential Claims from the beginning of time through the Agreement Date, including those set forth in clauses (i) through (vi), the "Released Matters"), except that the Released Matters do not include any Potential Claims directly arising from: (w) this Agreement, (x) any claims to the extent that such claims cannot be waived under law, including the right to file a charge with or participate in an investigation conducted by the Equal Employment Opportunity Commission ("EEOC") (except that Employee is expressly waiving any claim for monetary damages, recovery or relief should the EEOC or any other agency or commission pursue any such claims on Employee's behalf) and any claims under the ADEA that may arise after the Agreement Date, (y) indemnification under applicable law or the Company's charter or bylaws and any related insurance coverage or (z) any accrued and vested compensation or benefits, whether under any tax-qualified retirement plans or otherwise.
(b) No Transfer of Potential Claims. Employee represents and warrants to the Released Parties that neither Employee nor any Releasing Party has made an assignment or transfer of any of the Potential Claims for any Released Matter.
(c) Release Not Considered an Admission. Employee acknowledges and agrees that neither this Agreement nor the furnishing of the consideration under this Agreement, including for the release given under this Section 3, will be deemed or construed at any time to be an admission by Employee or any Released Party of any liability or improper or unlawful conduct of any kind.
(d) Waiver of Unknown Claims. With respect to any and all Potential Claims for any Released Matter, Employee expressly waives and relinquishes, and the other Releasing Parties will be deemed to have expressly waived and relinquished, any and all provisions, rights and benefits conferred by any law of any other jurisdiction or principle of common law that provides that a general release does not extend to claims that are unknown or unsuspected to the releasor at the time the releaser executes the release. Employee acknowledges that the inclusion of such unknown Potential Claims herein was separately bargained for and was a key element of this Section 3. Employee acknowledges, and the other Releasing Parties will be deemed to have acknowledged, that they may hereafter discover facts which are different from or in addition to those that they may now know or believe to be true with respect to any and all Potential Claims herein released and agree that all such unknown Potential Claims are nonetheless released and that this Section 3 will remain effective in all respects even if such different or additional facts are subsequently discovered.
(e) Sufficiency of Consideration. Employee acknowledges and agrees that the Company's obligations under Sections 1 and 2, and the other covenants of the Company herein, have provided good and sufficient consideration for every promise, duty, release, obligation, agreement and right contained in this Section 3.
(f) Basis of Defense; Attorneys' Fees. This Section 3 may be pleaded by the Released Parties as a full and complete defense and may be used as the basis for an injunction against any action at law or equity instituted or maintained against them in violation of this Section 3. In the event any Potential Claim is brought or maintained by Employee or any Releasing Party against any Released Party in violation of this Section 3, Employee will be responsible for all costs and expenses, including reasonable attorneys' fees, incurred by the Released Parties in defending same.
4. Affirmations. Employee affirms that he (a) has not filed or caused to be filed, and is not presently a party to any claim, grievance, complaint, charge, or action against any member of the Company Group in any forum or form, (b) has no known workplace injuries or occupational diseases, and (c) has been provided and has not been denied any leave requested under the Family and Medical Leave Act.
5. Non-Disparagement. Employee will not, at any time, take any action or make any public statement, including statements to individuals, subsequent employers, vendors, clients, customers, suppliers or licensors or the news media, that would disparage, defame or place in a negative light, any member of the Company Group, or any of their respective officers, directors, managers, stockholders, members, creditors, affiliates, employees, successors, assigns, business
services, products or dealerships, except that nothing herein will restrict Employee from making truthful statements that are required by applicable law or by order of any court of competent jurisdiction.
6. Cooperation.
(a) Compliance and Internal Investigations Employee has given the Company written notice of any and all concerns he may have regarding suspected ethics-related or compliance related issues or violations on the part of the Company or any other Released Party with respect to the Company Group. Employee will cooperate and assist the Company, its stockholders or any other member of the Company Group with any compliance or other matters related to the Company or the other Released Parties with respect to the Company Group, including any internal investigation or audit.
(b) Third Party Proceedings. Employee will not voluntarily appear in any action or proceeding brought by a third party that is known to him to be adverse to any member of the Company Group, unless required by law and, if so required, Employee will promptly notify the Company of such appearance.
7. Return of Company Property.
(a) As of the Separation Date, Employee has returned to the Company all items of Company Group property (including but not limited to any vehicle) in Employee's possession or control and any items containing confidential or proprietary information or technology of any member of the Company Group.
(b) If Employee discovers he has any such item of Company Group property in his possession after the Separation Date, Employee will promptly, but no later than two business days after such discovery, return such property to the Company. The return of property under this Section 7(b) will not affect Employee's liability for any losses or damages caused by the breach of the representation in Section 7(a).
8. Further Assurances. From and after the Agreement Date, at the request of the Company, Employee will execute and deliver to any member of the Company Group, as applicable, such instruments and other documents as the Company may reasonably request in connection with this Agreement or the transactions contemplated hereby.
9. Injunctive Relief. The obligations of Employee under, and the subject matter of, this Agreement are unique. If Employee fails to perform or otherwise breaches any of the warranties, covenants or other agreements hereunder, Employee acknowledges that it would be extremely impracticable to measure the resulting damages and that the Company or any other Releasing Parties would be irreparably damaged by any such breach. Accordingly, the Company Group, in addition to any other available rights or remedies that may be available at law or in equity, will be entitled to, and may xxx in equity for, an injunction or injunctions to prevent breaches of, and specific performance with respect to the obligations of Employee under this Agreement. Employee expressly waives the defense that a remedy in damages will be adequate and any requirement to post bond or provide similar security in connection with actions or proceedings instituted for injunctive relief or specific performance of this Agreement.
10. Survival. The representations, warranties, covenants, and other agreements in this Agreement survive the execution hereof and will survive the expiration and termination of this Agreement.
11. Expenses; Attorneys' Fees. Each party will pay its own expenses in connection with the negotiation and execution of this Agreement and the transactions contemplated hereby. Subject to Section 3(f), if either party brings an action or proceeding to enforce, interpret or construe this Agreement, the prevailing party in such action or proceeding will be entitled to recover their reasonable attorneys' fees and costs related to such action or proceeding from the other party.
12. Notices. All notices, requests, demands and other communications made under or by reason of the provisions of this Agreement must be in writing and be given by hand delivery or next business day courier to the affected party at the address set forth below or at such other address as such party may have provided to the other party in accordance herewith. Such notices will be deemed given at the time personally delivered (if delivered by hand with receipt acknowledged) and the first business day after timely delivery to the courier (if sent by next business day courier specifying next business day delivery).
To the Company:
Xxxxxx Automotive Group, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: President and Chief Executive Officer
With a copy to:
Xxxxxx Automotive Group, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: SVP, Chief Human Resources Officer
To Employee:
Xxxxxxx X. Xxxxx, at Employee's most recent address as set forth in the Company's employment records
13. Amendment; Waiver. No supplement, modification or amendment of this Agreement will be binding unless signed in writing by the Parties. No waiver of any of the provisions of this Agreement will be deemed to be or will constitute a continuing waiver. No waiver will be binding unless signed in writing by the party making the waiver.
14. Binding Effect; Assignment. This Agreement will inure to the benefit of the heirs, executors, administrators, successors and permitted assigns of the Parties. This Agreement is not assignable by either party without the prior written consent of the other, except that the Company may, without prior written consent of Employee, assign this Agreement to (x) any of its affiliates or (y) an assignee of all or substantially all of the business or assets of the Company.
15. Governing Law. This Agreement will be governed by and construed and enforced in accordance with the internal laws (and not the choice of law principles) of the State of Georgia.
16. Dispute Resolution. In the event that the Parties are unable to resolve any dispute, controversy or claim arising out of or in connection with this Agreement or breach thereof, either Party shall refer the dispute to binding arbitration, which shall be the exclusive forum for resolving such matters. Such arbitration will be administered by Judicial Arbitration and Mediation Services, Inc. ("JAMS") and governed by Georgia law. The arbitration shall be conducted by a single arbitrator selected by the Parties according to the rules of JAMS. In the event that the Parties fail to agree on the selection of the arbitrator within 30 days after either party's request for arbitration, JAMS shall choose an arbitrator who has at least ten (10) years of experience in employment law. The arbitration proceeding shall commence on a mutually agreeable date within 60 days after the request for arbitration, unless otherwise agreed by the Parties, in Atlanta, Georgia. Subject to Section 11, the Parties agree that each will bear their own costs and attorneys' fees. The arbitrator shall have no power or authority to make awards or orders granting relief that would not be available to a Party in a court of law. The arbitrator's award is limited by and must comply with this Agreement and applicable federal, state, and local laws. The decision of the arbitrator shall be final and binding on the Parties. If necessary, any
judgment, which may include an award of damages, may be entered in the highest state or federal court having jurisdiction thereof. Notwithstanding the foregoing, no claim or controversy for injunctive or equitable relief contemplated by or allowed under applicable law pursuant to Section 9 will be subject to arbitration under this Section 16, but will instead be subject to determination in a court of competent jurisdiction in Georgia, which court shall apply Georgia law, where either Party may seek injunctive or equitable relief as appropriate.
17. Jurisdiction; Venue. To the extent permitted under Section 16, the Parties consent to the exclusive jurisdiction of all state and federal courts located in Atlanta, Georgia, as well as to the jurisdiction of all courts of which an appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of, or in connection with, this Agreement or the transactions contemplated hereby. Each party hereby expressly waives (a) any and all rights to bring any suit, action or other proceeding in or before any court or tribunal other than the courts described in this Section 16, and agrees that it will not seek in any manner to resolve any dispute other than as set forth in this Section 16 and (b) any and all objections that it may have to venue, including the inconvenience of such forum, in any of such courts. In addition, the Parties consent to the service of process by personal service or any manner in which notices may be delivered hereunder.
18. Entire Agreement. This Agreement and the terms surviving termination of the Severance Pay Agreement set forth the entire agreement between the Parties and supersede any other prior agreements or understandings between the Parties concerning the subject matter of this Agreement. Each party acknowledges that such party has not relied on any representations, promises or agreements of any kind made to such party in connection with the other party's decision to enter into this Agreement, except for those set forth in this Agreement.
19. Severability. If any provision of this Agreement or the application of any provision of this Agreement to any party or circumstance is, to any extent, adjudged invalid or unenforceable, the application of the remainder of such provision to such party or circumstance, the application of such provision to the other party or circumstance, and the application of the remainder of this Agreement will not be affected thereby. If the general release in Section 3 or any part thereof is adjudged invalid or unenforceable, Employee and the Company will execute a valid release of all Potential Claims for all Released Matters (as defined in the applicable release) as an amendment hereto or thereto, without the need for additional consideration.
20. Construction and Interpretation.
(a) Drafting. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
(b) Interpretation. Unless the context clearly indicates otherwise: (i) each definition includes the singular and the plural, (ii) each reference to any gender includes the masculine, feminine and neuter where appropriate, (iii) the words "include" and "including" and variations thereof are not terms of limitation, but rather are deemed followed by the words "without limitation," (iv) the words "hereof " "herein " "hereto " "hereby " "hereunder" and derivative or similar words refer to this Agreement in its entirety and not solely to any particular provision of this Agreement, (v) each reference in this Agreement to a particular Section or Exhibit means a Section of, or an Exhibit to, this Agreement, (vi) any reference to laws or statutes also refers to all rules and regulations promulgated thereunder, and (vii) any definition of or reference to any agreement, instrument, document, law, statute or regulation will refer to such agreement, instrument, document, statute or regulation as it may from time to time be amended, supplemented or otherwise modified.
(c) Headings. The headings contained in this Agreement are included only for purposes of convenience and will not affect the meaning, interpretation or construction of this Agreement.
21. Section 409A. To the extent applicable, it is intended that this Agreement comply with the provisions of Section 409A. For purposes of Section 409A, any payments or benefits provided under this Agreement will be separate payments and not one of a series of payments. Additionally, the following rules will apply to any obligation to reimburse an expense or provide an in-kind benefit that is nonqualified deferred compensation within the meaning of Section 409A: (i) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year; (ii) the reimbursement of an eligible expense must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (iii) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit.
22. Revocation. Employee acknowledges and agrees that he has been given 21 calendar days to consider the terms of this Agreement (unless the offer to enter into this Agreement is revoked by the Company prior to acceptance by Employee), although Employee may sign this Agreement sooner (and by doing so, Employee waives any portion of the remaining 21-day consideration period). Employee will have seven (7) calendar days from the date on which Employee signs this Agreement to revoke Employee's consent to the terms of this Agreement. Such revocation must be in writing and timely delivered to the Company in person or by next day courier in accordance with the requirements of Section 12. For the revocation to be effective, notice of such revocation must be received within such seven (7) calendar days referenced above. In the event of such revocation by Employee, this Agreement will not become effective and Employee will not have any rights under this Agreement. If Employee does not revoke this Agreement within such seven-day period, this Agreement will, on the eighth calendar day after the Agreement Date, become and will be deemed effective as of the Agreement Date.
23. Consultation with Attorney, Voluntary Agreement. Employee acknowledges that (a) the Company has advised Employee of Employee's right to consult with an attorney of Employee's own choosing prior to executing this Agreement, and Employee has so consulted an attorney, (b) Employee has carefully read and fully understands all of the provisions of this Agreement, (c) Employee is entering into this Agreement, including the release set forth herein, knowingly, freely and voluntarily in exchange for good and valuable consideration and (d) in exchange for Employee's release and waiver of claims under the ADEA pursuant to Section 3, Employee is receiving consideration in addition to anything of value to which he was already entitled, as required by 29 U.S.C. § 626(f)(l )(D).
24. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Signatures transmitted by facsimile or email will be deemed originals for purposes of this Agreement.
25. Sealed Instrument. The Parties acknowledge and agree that it is their intent that this Agreement is, and will be treated and construed as, a sealed instrument for all purposes of Georgia law, including the statute of limitations applicable to sealed instruments.
The Parties have executed this Agreement as of the Agreement Date.
| EMPLOYEE: | XXXXXX AUTOMOTIVE GROUP, INC.: | |||||||||||||
| /s/ Xxxxxxx X. Xxxxx | /s/ Xxx Xxxxxxxx | |||||||||||||
| Xxxxxxx X. Xxxxx | Xxx Xxxxxxxx | |||||||||||||
| Senior Vice President, | ||||||||||||||
| Chief Human Resources Officer | ||||||||||||||
| June 25, 2021 | June 25, 2021 | |||||||||||||
| Date | Date | |||||||||||||
