EXHIBIT 10.21
EMPLOYMENT AGREEMENT OF XXXXXX XXXXXX
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of October 30, 1998 (this
"AGREEMENT"), among XXXXXX AUTOMOTIVE JACKSONVILLE, L.P., a Delaware limited
partnership ("PARENT"), XXXXXX AUTOMOTIVE CORP., a Florida corporation (the
"COMPANY"), and Xxxxxx Xxxxxx ("EXECUTIVE").
W I T N E S S E T H
WHEREAS, Parent, through its wholly-owned subsidiary, the Company,
and through other affiliates owns and operates certain retail motor vehicle
dealerships located in the State of Florida (the "BUSINESS");
WHEREAS, Parent and the Company desire to enter into this Agreement
with Executive; and
WHEREAS, Executive desires to have Parent and the Company agree to
employment and agrees to be bound by the covenants contained herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and agreements contained herein and for other good and valuable
consideration, Parent, the Company and Executive hereby agree as follows:
1. AGREEMENT TO EMPLOY. Upon the terms and subject to the conditions
of this Agreement, Parent shall cause the Company to employ, and the Company
hereby employs Executive and Executive hereby accepts employment by the Company.
2. TERM; POSITION AND RESPONSIBILITIES.
(a) TERM OF EMPLOYMENT. The employment of Executive pursuant hereto
shall commence on the date of this Agreement (the "EFFECTIVE DATE"), and shall
remain in effect for an initial term expiring on the fifth anniversary of the
Effective Date (the "TERM") unless sooner terminated pursuant to the provisions
of Section 6 hereof. Parent, the Company and Executive shall discuss in good
faith the extension of the Term and, if the Company and Executive mutually agree
to extend the Term, seek to finalize the
mutually agree to extend the Term, seek to finalize the terms of such extension
at least 90 days prior to the end of the Term.
(b) POSITION AND RESPONSIBILITIES. During the Term, Executive will
be employed as the Chairman and Chief Executive Officer of the Company (and all
automotive operations of Xxxxxx, whether conducted directly by the Company or
through other affiliates of Parent) and, in addition, in such other executive
capacity or capacities for the company and Parent as may be determined from time
to time by or under the authority of the Board of Directors of the Company (the
"BOARD"), and he will devote substantially all of his skill, knowledge and
working time to the conscientious performance of such duties, except (i) for
reasonable vacation time and absence for sickness or similar disability and (ii)
such time, reasonably determined by Executive, as may be devoted to the
fulfillment of civic and personal responsibilities. Executive hereby represents
that his employment hereunder 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.
3. COMPENSATION. As full compensation for all services to be
rendered by Executive in the capacities referred to in the Agreement,
Executive shall receive an annual base salary of $250,000, payable in arrears
in equal monthly installments. The annual base salary hereunder shall be
subject to increase (but not decrease) each year in accordance with the
change in the Cost of Living Index. The "COST OF LIVING INDEX" means the
consumer price index for all Urban Consumers published by the Department of
Labor, or if such index is no longer available, such other generally
available index measuring changes in consumer purchasing power designated by
the Company. In addition, Executive shall be entitled to participate in any
stock option or similar program of the Company, Parent or its other
subsidiaries, on an equitable basis, if adopted.
4. BENEFITS. During the Term:
(a) GENERAL. The Company will provide life insurance, medical
insurance, disability insurance and other benefits comparable to those provided
to the Company's other senior executive officers (and to senior executive
officers of Parent and its other subsidiaries, if more desirable);
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(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 in an amount not to exceed $25,000, for membership in country clubs,
business clubs and airline clubs selected by Executive and reimbursement of
admission costs to cultural and sporting events; and
(d) AUTOMOBILE. Executive (and his family) shall be entitled to the
use of two demonstrator automobiles and one demonstrator truck selected in his
reasonable discretion, consistent with prior practice, from the inventory of the
Business. In addition, Executive shall be entitled to select, in his reasonable
discretion from the readily available inventory of the Business, three
demonstrator automobiles for use by his children, consistent with prior
practice, PROVIDED that such right and benefit shall terminate upon the direct
or indirect initial public offering of equity securities by the Company, Parent
or any of its other subsidiaries or any respective successors thereto.
5. 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 Board, of the incurrence and purpose of each such expense.
6. TERMINATION OF EMPLOYMENT
(a) TERMINATION DUE TO DEATH OR DISABILITY. Executive's
employment shall automatically terminate upon his death or the Board's
determination of his 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 sick 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 by Executive to substantially perform his duties and
continuance of such failure for more than 20 days after the Company notifies
Executive in writing that he is failing to substantially perform his duties,
PROVIDED that such writing shall set forth the facts and circumstances giving
rise to such claim, (ii) Executive's engaging in serious misconduct (including,
without limitation, any criminal, fraudulent or dishonest conduct) that is
injurious to the Company or any of its affiliates or subsidiaries, (iii)
Executive's conviction of, or entering a plea of NOLO CONTENDERE, to, any crime
that constitutes a felony (exclusive of (x) traffic-related offenses, and (y)
environmental, labor and other offenses related to the operation of the Business
where Executive is adjudged to have acted in good faith in what he reasonably
believed to be the best interest of the Company) or involves moral turpitude, or
(iv) the breach by Executive of any written covenant or agreement with the
Company or any of its affiliates not to disclose any information pertaining to
the Company or any of its affiliates (except where such disclosure by Executive
is made in good faith in what he reasonably believes to be the best interest of
the Company) or not to compete or interfere with t he Company or any of its
affiliates, including without limitation the covenants set forth in Sections 7,
8, 9 and 10 hereof.
(c) TERMINATION WITHOUT CAUSE. Executive's employment with the
Company may be terminated "Without Cause" by the Board. 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 diminution by the Board in
Executive's duties or job title, except in connection with termination of
Executive's employment for Cause as provided in Section 6(b) or death or
Disability as provided in Section 6(a), (ii) any requirement by the Board that
Executive be based outside the Jacksonville metropolitan area or (iii) the
failure of the Company timely to pay
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Executive's salary, bonus or benefits, 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 Executive or the Company, as
appropriate. A "NOTICE OF TERMINATION" shall mean a notice stating that
Executive's 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.
(f) PAYMENTS UPON CERTAIN TERMINATIONS.
(i) TERMINATION WITHOUT CAUSE OR FOR GOOD REASON. (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, in either case, prior to the last day of the
Term, the Company shall pay to Executive (x) his base salary at the annual
base rate in effect immediately prior to the Date of Termination (as
defined in Section 6(g) below) during the Severance Period, LESS (y) the
total compensation (whether received as salary, consulting fee or
otherwise and calculated on a pre-tax basis) accrued, earned or received
by Executive from any new employer, client or contractor during the
Severance Period, PROVIDED that the Company may, at any time and at its
discretion, 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 base 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 direct obligations of the U.S.
Treasury having a term as close as practicable to the period from the date
of
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termination of employment through the last day of the Severance Period.
"SEVERANCE PERIOD" means the greater of (x) a period beginning on the date
on which Notice of Termination is given as contemplated by Section 6(e)
or, if no such Notice is given, the date of termination of employment (the
"NOTICE DATE") and continuing until the fifth anniversary of the Effective
Date and (y) one year.
(B) In addition, during the Severance Period, Executive will
continue to recieve the benefits to which he was entitled pursuant to
Section 4(a) as of the Date of Termination. 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 from other sources. During the Severance Period,
Executive shall not be entitled to participate in any of the Company's
employee benefit plans that are introduced after the Date of Termination,
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.
(ii) TERMINATION UPON DEATH OR DISABILITY. If Executive's employment
shall terminate upon his death or Disability, the Company shall pay
Executive his full base salary through the Date of Termination at the
annual base rate in effect immediately prior to the Date of Termination,
PROVIDED that in the case of Executive's Disability, the provisions of
Section 6(f)(i)(B) shall also apply to Executive as if Section 6(f)(i)
(A) were otherwise applicable.
(iii) TERMINATION FOR CAUSE OR VOLUNTARY TERMINATION BY EXECUTIVE.
If the Board shall terminate Executive's employment for Cause or if
Executive shall voluntarily terminate his employment with the Company for
other than Good Reason, he shall be paid his full base salary through the
Date of Termination at the
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annual base rate in effect immediately prior to the Date of Termination.
(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 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 to 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 of 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) hereof 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 best efforts to obtain the vote of more than 75% of all
of the voting interests of the Company
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held by person 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).
7. COVENANT NOT TO COMPETE. (a) So long as Executive's employment
hereunder shall continue, or as otherwise expressly consented to, approved or
otherwise permitted by the Company in writing, and to the fullest extent
permitted under applicable law, Executive shall not, directly or indirectly
engage in, participate in, represent in any way or be connected with, as an
officer, director, partner, owner, employee, agent, independent contractor,
consultant, proprietor or stockholder (except for the ownership of a less than
5% stock interest in a publicly traded corporation) or otherwise, any business
or activity within the State of Florida or within 80 miles of any retail motor
vehicle dealership business (or a related business) owned by the Company or its
affiliates, competing with the Business, or with the businesses of such
affiliate. Notwithstanding the foregoing, no Business owned or operated by
Executive and no activity engaged in by Executive at Closing which constitutes
an Excluded Asset (as defined in the Purchase Agreement defined below) shall be
deemed to violate the terms of this Section 7(a).
(b) Upon the termination of Executive's employment hereunder (other
than pursuant to a termination that is subject' to the provisions of Section
6(f)(i), the following provisions shall apply:
(i) The provisions of section 7(a) shall continue in
effect for the longer of five years after the Effective Date and two
years after the Date of Termination; and
(ii) During the period described, under Section 7(b)(i),
Executive shall disclose in writing to the Company the name, address
and type of business conducted by any proposed new employer of
Executive within ten business days of commencing employment with the
new employer.
8. UNAUTHORIZED DISCLOSURE. (a) During and after the Term, without
the written consent of the Board or a person authorized thereby, (i) Executive
shall not dis-
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close 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 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 (including, without
limitation the terms and provisions. of this Agreement), 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 reasonable 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 EMPLOYEES. During the period commencing on
the Effective Date and ending on the date that is the later of five years
after the Effective Date and two years after the Date of Termination (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) without the prior written consent of the Board,
solicit for employment or employ any person (other than Executive's current
secretary/assistant) who, at any time during the preceding 12 months, is or was
employed by or otherwise engaged (in a manner that would be interfered with by
such solicitation or employment) to perform services for the Company or any of
its affiliates (and whose annual income from all of such entities exceeds, in
the aggregate, $25,000), regardless of whether such employment or engagement is
direct or through an entity with which such person is employed or associated, or
otherwise
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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 (and whose annual income from all of such entities exceeds, in the
aggregate, $25,000) 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 its affiliates, except for documents relating to Executive's employment,
benefits, taxes and other personal matters), 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 COVENANT. Executive
acknowledges and agrees that the covenants and obligations of, Executive with
respect to non-competition, non-disclosure, non-solicitation, confidentiality
and the property of the Company and its affiliates relate to special, unique and
extraordinary matters and that, notwithstanding any other provision of this
Agreement to the contrary, 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 expressly
agrees that the Company, Parent and their affiliates (which shall be express
third-party beneficiaries of such covenants and obligations) shall be entitled
to an injunction (whether temporary or permanent), restraining order or such
other equitable relief (including 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 l0 hereof. These injunctive remedies are cumulative and in
addition to any ether rights and remedies the Company, Parent or any such
affiliate may have at law or in equity. Further, the Executive represents that
his experience and capabilities are such that the provisions of
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Sections 7, 8, 9 and 10 hereof will not prevent him from earning his
livelihood.
12. ASSUMPTION OF AGREEMENT. The Company and Parent will require
any successor (by purchaser, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company or Parent,
respectively, 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 or Parent, as the case
may be, would be required to perform it if no such succession had taken
place. Failure of the Company or Parent, as the case may be, 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, "Company" 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 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law.
13. ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement, the Purchase and Contribution Agreement, dated as of
November 25, 1997 (as amended, the "PURCHASE AGREEMENT"), among Parent,
Xxxxxx Xxxxxx and the other persons named therein, and the First Amended and
Restated Limited Partnership Agreement of Xxxxxx Automotive Jacksonville,
L.P., dated as of June [ ], 1998, constitute the entire agreements among the
parties hereto with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements relating
to such subject matter (including those made to or with Executive by any
other person or entity) are merged herein and superseded hereby and thereby.
14. INDEMNIFICATION. The Company agrees that it shall indemnify,
defend and hold harmless Executive to the fullest extent permitted by applicable
law from and against any and all liabilities, costs, claims and expenses
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including, without limitation, all costs and expenses incurred in defense of
litigation, including attorneys' 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.
15. MISCELLANEOUS.
(a) BINDING EFFECT. This Agreement shall be binding on and inure
to the benefit of the Company, Parent and their respective 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 payable by the Company pursuant to Section 6(f)(ii)) 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.
(b) GOVERNING LAW. (i) THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE Of FLORIDA WITHOUT REFERENCE
TO PRINCIPLES OF CONFLICT OF LAWS THEREUNDER. ANY AND ALL SUITS, LEGAL ACTIONS
OR PROCEEDINGS AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT SHALL BE
BROUGHT IN ANY UNITED STATES FEDERAL COURT SITTING IN THE STATE OF FLORIDA OR
ANY OTHER COURT OF APPROPRIATE JURISDICTION SITTING IN THE STATE OF FLORIDA, AS
THE PARTY BRINGING SUCH SUIT MAY ELECT IN ITS SOLE DISCRETION, AND EACH PARTY
HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THE
PURPOSE OF SUCH SUIT, LEGAL ACTION OR PROCEEDING, EACH PARTY HERETO WAIVES
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT
SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN ANY SUCH
COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUCH SUIT, LEGAL ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
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(ii) EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY
WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT,
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (W) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (X) EACH SUCH
PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (Y)
EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (Z) EACH SUCH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 15(b).
(c) TAXES. The Company may withhold from any payments made under this
Agreement all federal, state, city or other applicable taxes as shall be
required pursuant to any law, governmental regulation or ruling.
(d) 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,
Parent and such officer of the Company 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, on 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.
(e) SEVERABILITY. In the event that any one or more of the provisions
of this Agreement shall be or become
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invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
(f) NOTICES. Any notice or other communication required or permitted to be
delivered under this Agreement shall be (i) in writing, (ii) delivered
personally, by nationally recognized overnight 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 Parent or the Company, to it:
c/o Coggin Automotive Group
X.X. Xxx 00000
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
ATTENTION: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
c/o Asbury Automotive Group L.L.C.
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
ATTENTION: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
-and to-
Ripplewood Holdings L.L.C.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(B) if to Executive, to him at the address listed on the signature
page hereof
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with a copy to:
Xxxxxxxx X. Leglier, P.A.
Xxx Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
ATTENTION: Xxxxxxxx X. Leglier, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Copies of any notices or other communications given under this Agreement shall
also be given to:
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTENTION: Xxxxxx X. Xxxxxxxxxx, Xx. Esq.
Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
(g) SURVIVAL. Section 7, 8, 9, 10, 11, 12, 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.
(h) 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.
(i) 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.
(j) EXECUTIVE'S RECUSAL. Executive shall recuse himself from all
deliberations of the Board and the general partner of Parent regarding this
Agreement, Executive's employment by the Company or related matters.
15
IN WITNESS WHEREOF, Parent and the Company have duly executed this
Agreement by their respective authorized representatives and Executive has
hereunto set his hand, in each case effective as of the date first above
written.
XXXXXX AUTOMOTIVE JACKSONVILLE,
L.P.
By: XXXXXX AUTOMOTIVE JACKSONVILLE,
GP L.L.C.
By: /s/ Xxx X. Xxxx
-----------------------------------------------------
Name: Xxx X. Xxxx
Title: Vice President
XXXXXX AUTOMOTIVE CORP.
By: /s/ X.X. Xxxx
-----------------------------------------------------
Name: X.X. Xxxx
Title: President & Chief Operating Officer
16
Executive:
/s/ Xxxxxx Xxxxxx
--------------------------------------------------------
Xxxxxx Xxxxxx
Address: X.X. Xxx 00000
------------------------------------------------
Xxxxxxxxxxxx, XX 00000-0000
------------------------------------------------
Fax:
------------------------------------------------
Tel:
------------------------------------------------
Attest:
/s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
17
