EXHIBIT 10.8 |__| Optionee's Copy
|__| Company's Copy
Capital Automotive Group
1998 Equity Incentive Plan
Incentive Stock Option Agreement
To ____________________:
Capital Automotive REIT (the "Company") has granted you an option (the "Option")
under the Capital Automotive Group 1998 Equity Incentive Plan (the "Plan") to
purchase _____________________________________ common shares of beneficial
interest of the Company (the "Common Shares"), at _____ Dollars and ________
Cents ($_____) per share (the "Exercise Price"). The Date of Grant was
__________________________.
The Option is subject in all respects to the applicable provisions of the Plan,
a copy of which is attached. By signing this agreement (the "Agreement"), you
acknowledge receiving the Plan. This Agreement incorporates the Plan by
reference and specifies other applicable terms and conditions. All terms not
defined by this Agreement have the meanings given in the Plan. The Plan's
Administrator may adjust the number of Shares and the Exercise Price from time
to time under the Plan. The Option is intended to be an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code") to the extent permitted by the Code and to be a
nonqualified stock option for any additional shares.
In addition to the terms, conditions, and restrictions set forth in the Plan,
the following terms, conditions, and restrictions apply to the Option:
(1) The schedule for exercising the Option is as follows, subject to Section
(4) below on expiration:
a. You may exercise the Option on the following schedule:
[i. 25%, on or after the first anniversary of the Date of Xxxxx;
ii. 50%, on or after the second anniversary of the Date of Xxxxx;
iii. 75%, on or after the third anniversary of the Date of Xxxxx; and
iv. 100%, on or after the fourth anniversary of the Date of Xxxxx.]
b. The Administrator may, in its sole discretion, accelerate the time at
which you may exercise part or all of the Option.
(2) You agree to give prompt notice to the Company if you dispose of any Shares
acquired upon exercise of the Option within one year after you acquire them
or within two years after the Date of Grant.
(3) Subject to this Agreement and the Plan, you may exercise the Option only by
written notice to the Company on or before the date of expiration of the
Option. Each such notice must:
a. state the election to exercise the Option and the number of Shares
with respect to which it is being exercised;
b. be signed by you or, in the event of your death or disability, by the
party entitled to exercise the Option;
c. contain such representations as the Company requires; and
d. be accompanied by cash or a check in the amount of the Exercise Price
payable to the order of the Company [or, to the extent the Plan and
the Administrator permit, by Common Shares of the Company with a Fair
Market Value equal to all or part of the Exercise Price (with any
balance paid by cash or check); provided, however, that you may not
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surrender Common Shares of the Company as payment unless you have held
such stock for more than six months before the surrender.
Alternatively, your notice may direct the Company to send the share
certificates to be issued under this Option to a licensed broker
acceptable to the Company as your agent in exchange for the broker's
tendering to the Company cash (or acceptable cash equivalents) equal
to the Exercise Price.]
For all purposes of the Plan, the date of exercise will be the date on
which you have delivered the notice and any required payment to the
Company.
(4) The Option will expire no later than the close of business on
__________________ (the tenth anniversary of the Date of Grant). Unless
the Administrator determines otherwise at any time, you will forfeit any
unexercised portions of the Option (whether or not then exercisable) upon
the first to occur of (i) the Option's expiration, (ii) the 90th day after
your resignation or other termination of employment, or (iii) as provided
in the Plan if you die or become disabled.
(5) The Company may postpone the issuance and delivery of any Shares for so
long as the Company determines to be necessary or advisable to satisfy the
following:
a. the completion or amendment of any registration or qualification of
the Shares or satisfaction of any exemption from registration under
any Federal or state law, rule, or regulation;
b. compliance with any requests for representations under the Plan;
c. receipt of proof satisfactory to the Company that a person seeking to
exercise the Option after your death is authorized and entitled to
exercise the Option; and
d. compliance with any federal, state, or local tax withholding
obligations.
(5) The Administrator may delay or prohibit the exercise of the Option if
exercise would adversely affect the Company's status under the Code as a
real estate investment trust or would result in your owning Common Shares
in violation of the restrictions on ownership and transfer of Common Shares
provided in the Company's Declaration of Trust.
(6) If, at the time the Company should issue you Shares because of your
exercise of the Option, no current registration statement under the
Securities Act of 1933 (the "Act") covers such issuance, you must, before
the Company will issue such Shares to you:
a. represent to the Company, in form satisfactory to counsel for the
Company, that you are acquiring the Shares for your own account and
not with a view to the resale or distribution of the Shares; and
b. agree that you may not sell, transfer, or otherwise dispose of the
Shares issued to you under the Option unless:
i. a registration statement under the Act is effective at the time
of disposition with respect to the Shares sold, transferred, or
otherwise disposed of; or
ii. the Company has received an opinion of counsel or other
information and representations satisfactory to it to the effect
that registration under the Act is not required by reason of Rule
144 under the Act or otherwise.
(7) To the extent the Plan provides, in the event of (i) a dissolution,
liquidation, or sale of substantially all of the assets of the Company,
(ii) a merger or consolidation in which the Company is not the surviving
corporation, (iii) a reverse merger in which the Company is the surviving
corporation but the shares of Common Shares outstanding immediately before
the merger are converted by virtue of the merger into other property,
securities, or cash, or (iv) any other Substantial Operational Change,
then, at the Board's sole discretion and to the extent the law permits, the
Option will (a) be exercisable in full before such event and then terminate
or (b) continue in full force and effect and, if applicable, the surviving
corporation or an affiliate of the surviving corporation will be required
to assume the Option and/or substitute a similar option or award in place
of the Option.
Subject to the preceding paragraph, if any change is made in the Common
Shares, without the Company's receiving consideration (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure, or other transaction not involving the Company's receipt of
consideration), the Board will adjust the Option as to the class(es) and
number
of shares and price per share of securities subject to the Option, with the
Board's adjustments being final, binding, and conclusive. The conversion of
any convertible securities of the Company will not be treated as a
"transaction not involving the Company's receipt of consideration."
(8) You may not exercise the Option if the issuance of the Shares upon such
exercise would violate any applicable federal or state securities laws or
other laws or regulations.
(9) Nothing in this Agreement restricts the right of the Company or any of its
affiliates to terminate your employment at any time, with or without cause.
The termination of employment, whether by the Company or any of its
affiliates or otherwise, and regardless of the reason therefor, has the
consequences provided for under the Plan and any applicable employment or
severance agreement.
(10) You understand and agree that you will not be deemed for any purpose to be
a stockholder of the Company with respect to any of the Shares unless and
until they have been issued to you after your exercise of this Option and
payment for the shares.
(11) You understand and agree that the existence of this Option will not affect
in any way the right or power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations, or
other changes in the Company's capital structure or its business, or any
merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or other stocks with preference ahead of or
convertible into, or otherwise affecting the common shares or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
(12) The laws of the State of Maryland will govern all matters relating to this
Agreement, without regard to the principles of conflict of laws.
(13) Any notice you give to the Company (including notice of exercise of all or
part of the Option) must be in writing and either hand-delivered or mailed
to the office of the Secretary of the Company (or to the Chair of the
Administrator if you are then serving as Secretary). If mailed, it should
be addressed to the Secretary (or the Chair of the Administrator) of the
Company at the Company's then corporate headquarters. Any notice given to
you will be addressed to you at your address as reflected on the personnel
records of the Company. You and the Company may change the address for
notice by like notice to the other. Notice will be deemed to have been
duly delivered when hand-delivered or, if mailed, on the day such notice is
postmarked.
(14) Wherever a conflict may arise between the terms of this Agreement and the
terms of the Plan, the terms of the Plan will control.
Capital Automotive REIT
Date: __________________ By: __________________________________
Name: ____________________________
Title: ____________________________
ACKNOWLEDGMENT
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I acknowledge receipt of a copy of the Plan, attached hereto. I represent
that I have read and am familiar with the Plan's terms. I accept the Option
subject to all of the terms and provisions of this Agreement and of the
Plan under which it is granted, as the Plan may be amended in accordance
with its terms. I agree to accept as binding, conclusive, and final all
decisions or interpretations of the Administrator concerning any questions
arising under the Plan with respect to the Option.
Date:__________________ __________________________________
Signature of Optionee
No one may sell, transfer, or distribute this Option or the securities that
may be purchased upon exercise of this Option without an effective
registration statement relating thereto or a satisfactory opinion of
counsel satisfactory to the Company or other information and
representations satisfactory to the Company that such registration is not
required.
The shares that may be purchased upon exercise of this Option may be
transferred only in accordance with the terms of a share purchase agreement
to be entered into between the holder of this Option and the Company upon
exercise of this Option, a copy of which agreement will thereafter be on
file with the Secretary of the Company.
EXHIBIT 10.36 |__| Employee's Copy
|__| Partnership's Copy
CAPITAL AUTOMOTIVE L.P.
Employment Agreement
To Xxxxx X. Xxxxx:
This Agreement establishes the terms of your employment with Capital
Automotive L.P., a Maryland limited partnership (the "Partnership"). It
replaces your prior employment agreement with Capital Automotive REIT, a
Maryland real estate investment trust (the "Company"), under which the Company
assigned your agreement to the Partnership. You remain an employee of the
Company, but your primary responsibility is as an employee of the Partnership.
Employment and Duties You and the Partnership agree to your employment as
Executive Vice President - Acquisitions on the terms
contained herein. In such position, you will report
directly to the Company's Chief Executive Officer (the
"CEO") and to the General Partner of the Partnership.
You agree to perform whatever duties the Partnership may
assign you from time to time, consistent with your
position as a senior executive. During your employment,
you agree to devote your full business time, attention,
and energies to performing those duties (except as the
CEO otherwise agrees from time to time). You agree to
faithfully serve the Partnership, to conform to and
comply with the lawful and good faith directions and
instructions given you by the Partnership, and to use
your best efforts to promote and serve the interests of
the Partnership. You agree to comply with the
noncompetition, secrecy, and other provisions of Exhibit
A to this Agreement.
Term of Employment Your employment under this Agreement begins as of
January 1, 1998 (the "Effective Date"). Unless sooner
terminated under this Agreement, your employment ends at
6:00 p.m. Eastern Time on
June 30, 1998, if the Company has not consummated
its initial public offering ("IPO") by that date,
or
October 19, 2001, if the Company has consummated
its IPO on or before June 30, 1998.
The period running from the Effective Date to the
applicable date in the preceding sentence is the
"Term."
Termination or expiration of this Agreement ends
your employment but does not end your obligation to
comply with Exhibit A.
Compensation
Salary The Partnership (or, in its discretion, the
Company) will pay you an annual salary (the
"Salary") from the Effective Date at the rate of
not less than $225,000 in accordance with its
payroll practices. The Partnership or the
Compensation Committee of the General Partner
("Compensation Committee") will review your Salary
annually and consider you for increases.
Bonus The Partnership or the Compensation Committee will
establish annual bonus targets under which you will
be eligible for an annual bonus equal to up to 100%
of your Salary.
Employee Benefits While you are employed under this Agreement, the
Partnership will provide you with the same
benefits, including medical insurance coverage, as
the Partnership makes generally available from time
to time to the Partnership's employees, as those
benefits are amended or terminated from time to
time, and such other benefits as are commensurate
with your position as a senior executive of a
public company , including either a company
automobile or an allowance for an automobile. Your
participation in the Partnership's benefit plans
will be subject to the terms of the applicable plan
documents and the Partnership's generally applied
policies, and the Partnership in its sole
discretion may from time to time adopt, modify,
interpret, or discontinue such plans or policies.
Place of Employment Your principal place of employment will be at the
Partnership's headquarters in the Washington
metropolitan area (or such other offices as the
Partnership may establish from time to time and to
which it assigns you in its sole discretion). You
understand and agree that you must travel from time
to time for business reasons.
Indemnification The Partnership will indemnify you to the fullest extent
authorized by law if you are made a party to any action,
suit, or proceeding, whether criminal, civil, administrative,
or investigative, because you are or were a manager, officer,
or employee of the Partnership or serve or served any other
entity as a director, officer, or employee at the
Partnership's request; provided, however, that you must repay
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the Partnership for any indemnification if the final
determination of an arbitrator or a court of competent
jurisdiction declares, after the expiration of the time
within which judicial review (if permitted) of such
determination may be perfected, that indemnification by the
Partnership is not permissible under applicable law.
Expenses The Partnership will reimburse you for reasonable and
necessary travel and other business-related expenses you
incur for the Partnership in performing your duties under
this Agreement. You must itemize and substantiate all
requests for reimbursements. You must submit requests for
reimbursement in accordance with the policies and practices
of the Partnership and within 60 days after incurring the
expense.
No Other For so long as you are employed by the Partnership, you
Employment agree that you will not, directly or indirectly, provide
services to any person or organization for which you receive
compensation or otherwise engage in activities that would
conflict or interfere significantly with the faithful
performance of your duties to the Partnership without the
Partnership's prior written consent. (This prohibition
excludes any work performed at the Partnership's direction
including any work for the Partnership.) You may manage your
personal investments, as long as the management takes only
minimal amounts of time and is consistent with the provisions
of the No Competition Section in Exhibit A and is otherwise
consistent with the policies and practices of the
Partnership.
You represent to the Partnership that you are not subject to
any agreement, commitment, or policy of any third party that
would prevent you from entering into or performing your
duties under this Agreement, and you agree that you will not
enter into any agreement or commitment or agree to any policy
that would
prevent or hinder your performance of duties and obligations
under this Agreement, including Exhibit A.
No Conflicts of You confirm that you have fully disclosed to the Partnership
Interest and the Company, to the best of your knowledge, all
circumstances under which you, your spouse, and your
relatives (including their spouses, children, and relatives)
have or may have a conflict of interest with the Partnership
or the Company. You further agree to fully disclose to the
Partnership any such circumstances that might arise during
the Term. You agree to fully comply with the Partnership's
policy and practices relating to conflicts of interest.
No Payments to You will neither pay nor permit payment of any remuneration
Governmental to or on behalf of any governmental official other than
Officials payments required or permitted by applicable law.
Termination Subject to the provisions of this section, the Partnership
may terminate your employment, or you may resign, except
that, if you voluntarily resign, you must provide the
Partnership with 90 days' prior written notice (unless the
Partnership has previously waived such notice in writing or
authorized a shorter notice period).
For Cause The Partnership may terminate your employment for "Cause" if
you:
(i) engage in dishonesty that relates materially to
the performance of services or any obligations under
this Agreement, including Exhibit A;
(ii) are convicted of any misdemeanor (other than for
minor infractions) involving fraud, breach of trust,
misappropriation, or other similar activity or any
felony;
(iii) perform your duties under this Agreement in a
grossly negligent manner; or
(iv) willfully breach this Agreement, including
Exhibit A, in a manner materially injurious to the
Partnership. An act or omission is only "willful" if you
acted in bad faith or without any reasonable belief that
the action or omission
was in the interests of the Partnership and consistent
with your duties and obligations under this Agreement.
Your termination for Cause under (i) and (ii) will be
effective immediately upon the Partnership's mailing or
transmission of such notice. Before terminating your
employment for Cause under (iii) or (iv), the Partnership
will specify in writing to you the nature of the act,
omission, refusal, or failure that it deems to constitute
Cause. The Partnership will give you the opportunity to
correct the situation (and thus avoid termination for Cause
under (iii) or (iv)). You must complete the correction within
a reasonable period of time after the written notice to you,
and the Partnership agrees to provide you no less than 15
days for such correction.
Without Subject to the provisions below under Payments on
Cause Termination, the Partnership may terminate your employment
under this Agreement before the end of the Term without
Cause.
Good Reason You may resign for Good Reason with 45 days' advance written
notice as provided below. "Good Reason" means the occurrence,
without your written consent, of any of the following
circumstances:
the Partnership's failure to perform or observe any of
the material terms or provisions of this Agreement,
the assignment to you of any duties inconsistent with,
or any substantial diminution in, your employment status
or responsibilities as in effect on the date of this
Agreement,
the Partnership's relocation of its corporate
headquarters to a location that would increase your
commuting distance by more than 50 miles, based on your
residence when this Agreement is executed, or
a Change of Control after consummation of an IPO,
consisting of any one or more of the following events:
a person, entity, or group (other than the Company,
the Partnership, any subsidiary of either, any
Company Group benefit plan, or any underwriter
temporarily holding securities for an offering of
such securities) acquires ownership of more than
40% of the undiluted total voting power of the
Company's then-outstanding securities eligible to
vote to elect members of the Board ("Company Voting
Securities");
consummation of a merger or consolidation of the
Company into any other entity -- unless the holders
of the Company Voting Securities outstanding
immediately before such consummation, together with
any trustee or other fiduciary holding securities
under a Company Group benefit plan, hold securities
that represent immediately after such merger or
consolidation more than 60% of the combined voting
power of the then outstanding voting securities of
either the Company or the other surviving entity or
its parent; or
the stockholders of the Company approve (i) a plan
of complete liquidation or dissolution of the
Company or (ii) an agreement for the Company's sale
or disposition of all or substantially all the
Company's assets, and such liquidation,
dissolution, sale, or disposition is consummated.
Even if other tests are met, a Change of Control has not occurred
under any circumstance in which the Company files for bankruptcy
protection or is reorganized following a bankruptcy filing.
You must give notice to the Partnership of your intention to
resign for Good Reason within 30 days after the occurrence of the
event that you assert entitles you to resign for Good Reason. In
that notice, you must specify the condition that you consider
provides you with Good Reason and must give the Partnership an
opportunity to cure the condition within 30 days after your
notice. If the Partnership fails to cure the condition, your
resignation will be effective on the 45th day after your notice
(unless the
Partnership has previously waived such notice period in
writing or agreed to a shorter notice period).
You will not be treated as resigning for Good Reason if
the Partnership had Cause to terminate your employment
as of the date of your notice of resignation.
Disability If you become "disabled" (as defined below), the
Partnership may terminate your employment. You are
"disabled" if you are unable, despite whatever
reasonable accommodations the law requires, to render
services to the Partnership for more than 90 consecutive
days because of physical or mental disability,
incapacity, or illness. You are also disabled if you are
deemed to be disabled within the meaning of the
Partnership's long-term disability policy as then in
effect.
Death If you die during the Term, the Term will end as of the
date of your death.
Payments on If the Partnership terminates your employment for or without
Termination Cause or because of disability or death or because the
Company does not consummate its IPO or you resign, the
Partnership will pay you any unpaid portion of your Salary
pro-rated through the date of actual termination and any
annual bonuses already determined by such date but not yet
paid, reimburse any substantiated but unreimbursed business
expenses, pay any accrued and unused vacation time (to the
extent consistent with the Partnership's policies), and
provide such other benefits as applicable laws or the terms
of the benefits require. Except to the extent the law
requires otherwise or as provided in the Severance paragraph,
neither you nor your beneficiary or estate will have any
rights or claims under this Agreement or otherwise to receive
severance or any other compensation, or to participate in any
other plan, arrangement, or benefit, after such termination.
Severance In addition to the foregoing payments, if the
Partnership terminates your employment without
Cause or you resign for Good Reason before the end
of the Term, the Partnership will
pay you severance equal to your Salary, as then in
effect, for 24 months in a single lump sum as soon
as practicable but in any event no more than 90
days after termination;
pay the premium cost for you to receive any group
health coverage the Partnership must offer you
under Section 4980B of the Internal Revenue Code of
1986 ("COBRA Coverage") for the period of such
coverage; and
pay you, at the time the Partnership would
otherwise pay your annual bonus, your pro rata
share of the bonus for the year of your
termination, where the pro rata factor is based on
days elapsed in your year of termination till date
of termination over 365, less any portion of the
bonus for the year of your termination already
paid.
You are not required to mitigate amounts payable under
the Severance paragraph by seeking other employment or
otherwise; however, you agree to return any payments
under this Severance paragraph if you fail to comply
with Exhibit A. Expiration of this Agreement, whether
because of notice of non-renewal or otherwise, does not
constitute termination without Cause nor is it grounds
for resignation with Good Reason.
Assignment The Partnership may assign or otherwise transfer this
Agreement and any and all of its rights, duties, obligations,
or interests under it to
the Company or any of the affiliates or subsidiaries of
the Company or the Partnership or
to any business entity that at any time by merger,
consolidation, or otherwise acquires all or
substantially all of the Company's stock or assets or
the partnership units or assets of the Partnership or to
which the Company or the Partnership transfers all or
substantially all of its assets.
Upon such assignment or transfer, any such business
entity will be deemed to be substituted for the
Partnership for all purposes. Assignment or transfer
does not constitute termination without Cause nor is it
grounds for resignation with Good Reason absent the
occurrence of a Change of Control. This Agreement binds
the Partnership, its successors or assigns, and your
heirs and the personal representatives of your estate.
Without the Partnership's prior written consent, you may
not assign or delegate this Agreement or any or all
rights, duties, obligations, or interests under it.
Severability If the final determination of an arbitrator or a court
of competent jurisdiction declares, after the expiration
of the time within which judicial review (if permitted)
of such determination may be perfected, that any term or
provision of this Agreement, including any provision of
Exhibit A, is invalid or unenforceable, the remaining
terms and provisions will be unimpaired, and the invalid
or unenforceable term or provision will be deemed
replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or
provision.
Amendment; Waiver Neither you nor the Partnership may modify, amend, or
waive the terms of this Agreement other than by a
written instrument signed by you and a duly authorized
representative of the General Partner. Either party's
waiver of the other party's compliance with any
provision of this Agreement is not a waiver of any other
provision of this Agreement or of any subsequent breach
by such party of a provision of this Agreement.
Withholding The Partnership will reduce its compensatory payments to
you for withholding and FICA taxes and any other
withholdings and contributions required by law.
Third Party You understand and agree that the Partnership is a
Beneficiary third party beneficiary of this Agreement.
Governing Law The laws of the Commonwealth of Virginia (other than its
conflict of laws provisions) govern this Agreement.
Notices Notices must be given in writing by personal delivery,
by certified mail, return receipt requested, by
telecopy, or by overnight delivery. You should send or
deliver your notices to the Partnership's headquarters.
The Partnership will send or deliver any notice given to
you at your address as reflected on the Partnership's
personnel records. You and the Partnership may change
the address for notice by like notice to the others. You
and the Partnership agree that notice is received on the
date it is personally delivered, the date it is received
by certified mail, the date of guaranteed delivery by
the overnight service, or the date the fax machine
confirms receipt.
Legal Fees If a claim is asserted for breach of any provision of
this Agreement, you will be entitled to recover your
reasonable attorney's fees and expenses if you prevail.
Superseding Effect This Agreement supersedes any prior oral or written
employment, severance, option, or fringe benefit
agreements between you and the Company or the
Partnership. This Agreement supersedes all prior or
contemporaneous negotiations, commitments, agreements,
and writings with respect to the subject matter of this
Agreement. All such other negotiations, commitments,
agreements, and writings will have no further force or
effect; and the parties to any such other negotiation,
commitment, agreement, or writing will have no further
rights or obligations thereunder.
If you accept the terms of this Agreement, please sign in the space indicated
below. We encourage you to consult with any advisors of your choosing.
CAPITAL AUTOMOTIVE L.P.
General Partner:
CAPITAL AUTOMOTIVE REIT, a Maryland real
estate investment trust
By:
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Its:
-----------------------------------
I accept and agree to the terms of employment set
forth in this Agreement:
------------------------------------
Xxxxx X. Xxxxx
Dated:
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Exhibit A
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No Competition In consideration of your employment by the Partnership and
salary and benefits under this Agreement, during the term of
your employment, and except as set forth below, until the
date one year after your employment with the Company, the
Partnership, or their successors, assigns, affiliates, or
subsidiaries (collectively, the "Company Group") ends for
any reason (the "Restricted Period"), you agree as follows:
The Company is a real estate investment trust formed to
acquire real properties owned by automobile dealerships and
other automotive-related businesses and lease the properties
to such businesses. You will not, directly or indirectly,
promote, be employed by, lend money to, invest in, or engage
in any Competing Business within the Market Area. That
prohibition includes, but is not limited to, acting, either
singly or jointly or as agent for, or as an employee of or
consultant to, any one or more persons, firms, entities, or
corporations directly or indirectly (as a director,
independent contractor, representative, consultant, member,
or otherwise) that constitutes such a Competing Business.
You may own up to 3% of the outstanding capital stock of any
corporation that is actively publicly traded without
violating this No Competition covenant. This covenant does
not preclude you from being employed by any automobile
dealership or dealership group or other automotive-related
business that is a lessee or prospective lessee of
properties the Company or the Partnership holds or is
actively considering acquiring.
If, during the Restricted Period, you are offered and want
to accept employment with a business that engages in
activities similar to the Company's or the Partnership's,
you will inform the Partnership in writing of the identity
of the business, your proposed duties with that business,
and the proposed starting date of that employment. You will
also inform that business of the terms of this Exhibit A.
The Partnership will analyze the proposed employment and
make a good faith determination as to whether it would
threaten the Partnership's legitimate competitive interests.
If the Partnership
determines that the proposed employment would not pose an
unacceptable threat to its interests, the Partnership will
notify you that it does not object to the employment.
You acknowledge that, during the portion of the Restricted
Period that follows your employment, you may engage in any
business activity or gainful employment of any type and in
any place except as described above. You acknowledge that
you will be reasonably able to earn a livelihood without
violating the terms of this Agreement.
You understand and agree that the rights and obligations set
forth in this No Competition Section will continue for one
year from the date of termination of this Agreement and your
employment with the Partnership or the Company Group, unless
the Company does not consummate its IPO by June 30, 1998, in
which event your obligations under this No Competition
Section end when your employment ends.
Definitions
Competing Competing Business means any service or financial product
Business of any person or organization other than the Company Group,
in existence or then under development, that competes or
could potentially compete, directly or indirectly, with any
service or financial product of the Company Group upon which
or with which you have worked for the Partnership or the
Company Group or about which you acquire knowledge while
working for the Partnership or the Company Group. Competing
Business includes any enterprise engaged in the formation or
operation of real estate investment trusts or other entities
that invest primarily in automobile dealership or
automotive-related properties or provide real estate
financing to automobile dealerships or automotive-related
businesses. Competing Business excludes real estate
investment trusts and similar entities that do not engage in
activities related to automotive dealerships or automotive-
related businesses.
Market Area The Market Area consists of the United States.
No Interference; During the Restricted Period, you agree that you will not,
directly
No Solicitation or indirectly, whether for yourself or for any other
individual or entity (other than the Partnership or its
affiliates or subsidiaries), intentionally solicit or
endeavor to entice away from the Company Group:
any person whom the Company Group employs (other than
as your personal secretary) or otherwise engages to
perform services as a consultant or sales
representatives; or
any person or entity who is, or was, within the
Restricted Period, a contractor or subcontractor of the
Company Group known to you or a lessee or prospective
lessee of properties the Company Group holds or is
actively considering acquiring.
Secrecy
Preserving Your employment with the Partnership under and, if
Partnership applicable, before this Agreement has given and will give
Confidences you Confidential Information (as defined below). You
acknowledge and agree that using, disclosing, or publishing
any Confidential Information in an unauthorized or improper
manner could cause the Partnership or Company Group
substantial loss and damages that could not be readily
calculated and for which no remedy at law would be adequate.
Accordingly, you agree with the Partnership that you will
not at any time, except in performing your employment duties
to the Partnership or the Company Group under this Agreement
(or with the Partnership's prior written consent), directly
or indirectly, use, disclose, or publish, or permit others
not so authorized to use, disclose, or publish any
Confidential Information that you may learn or become aware
of, or may have learned or become aware of, because of your
prior or continuing employment, ownership, or association
with the Partnership or the Company Group or any of their
predecessors, or use any such information in a manner
detrimental to the interests of the Partnership or the
Company Group.
Preserving You agree not to use in working for the Company Group and
Others' not to disclose to the Company Group any trade secrets or
other
Confidences information you do not have the right to use or disclose and
that the Company Group is not free to use without liability
of any kind. You agree to promptly inform the Partnership in
writing of any patents, copyrights, trademarks, or other
proprietary rights known to you that the Partnership or the
Company Group might violate because of information you
provide.
Confidential "Confidential Information" includes, without limitation,
Information information the Partnership or the Company Group has
not previously disclosed to the public or to the trade with
respect to the Partnership's or the Company Group's present
or future business, operations, services, products,
research, inventions, discoveries, drawings, designs, plans,
processes, models, technical information, facilities,
methods, trade secrets, copyrights, software, source code,
systems, patents, procedures, manuals, specifications, any
other intellectual property, confidential reports, price
lists, pricing formulas, customer lists, financial
information (including the revenues, costs, or profits
associated with any of the Partnership's or the Company
Group's products or services), business plans, lease
structure, projections, opportunities or strategies,
acquisitions or mergers, advertising or promotions,
personnel matters, legal matters, any other confidential and
proprietary information, and any other information not
generally known outside the Partnership or the Company Group
that may be of value to the Partnership or the Company Group
but excludes any information already properly in the public
domain. "Confidential Information" also includes
confidential and proprietary information and trade secrets
that third parties entrust to the Partnership or the Company
Group in confidence.
You understand and agree that the rights and obligations set
forth in this Secrecy Section will continue indefinitely and
will survive termination of this Agreement and your
employment with the Partnership or the Company Group.
Exclusive Property You confirm that all Confidential Information is and must
remain the exclusive property of the Partnership or the
relevant member of the Company Group. All business records,
business papers, and business documents you keep or make in
the course of your employment by the Partnership relating to
the Partnership or any
member of the Company Group must be and remain the property
of the Partnership or the relevant member of the Company
Group. Upon the termination of this Agreement with the
Partnership or upon the Partnership's request at any time,
you must promptly deliver to the Partnership or to the
relevant member of the Company Group any Confidential
Information or other materials (written or otherwise) not
available to the public or made available to the public in a
manner you know or reasonably should recognize the
Partnership did not authorize, and any copies, excerpts,
summaries, compilations, records and documents you made or
that came into your possession during your employment. You
agree that you will not, without the Partnership's consent,
retain copies, excerpts, summaries or compilations of the
foregoing information and materials. You understand and
agree that the rights and obligations set forth in this
Exclusive Property Section will continue indefinitely and
will survive termination of this Agreement and your
employment with the Company Group.
Maximum Limits If any of the provisions of Exhibit A are ever deemed to
exceed the time, geographic area, or activity limitations
the law permits, you and the Partnership agree to reduce the
limitations to the maximum permissible limitation, and you
and the Partnership authorize a court or arbitrator having
jurisdiction to reform the provisions to the maximum time,
geographic area, and activity limitations the law permits.
Injunctive Relief Without limiting the remedies available to the Partnership,
you acknowledge
that a breach of any of the covenants in this Exhibit A
may result in material irreparable injury to the
Partnership and Company Group for which there is no
adequate remedy at law, and
that it will not be possible to measure damages for
such injuries precisely.
You agree that, if there is a breach or threatened breach,
the Partnership or any member of the Company Group will be
entitled to obtain a temporary restraining order and/or a
preliminary or
permanent injunction restraining you from engaging in
activities prohibited by any provisions of this Exhibit A or
such other relief as may be required to specifically enforce
any of the covenants in this Exhibit A.
