EX-10.7 8 ex107-severancepayagreemen.htm EX-10.7 SEVERANCE PAY AGREEMENT Document

Exhibit 10.7


    This Agreement is entered into as of July 28, 2022 (the “Effective Date”) between Asbury Automotive Group, Inc. (“Asbury”) and Daniel Clara (“Executive”).

IN CONSIDERATION of the promises and mutual covenants and agreements contained herein, the Asbury and Executive agree as follows:

1.Severance Pay Arrangement

    If a Termination (as defined in Section 2 below) of Executive’s employment occurs at any time during Executive’s employment, Asbury will pay Executive 12 months of Executive’s base salary as of the date of Termination (hereinafter such pay shall be referred to as “Severance Pay”). The Severance Pay will be subject to required withholding and will be made by Asbury to Executive monthly over the course of 12 months on the regular payroll dates beginning on the first regular payroll date after the effective date of the release referenced in Section B below that Executive executes.

    In addition to the payment of Severance Pay, if a Termination (as defined in Section 2 below) of Executive’s employment occurs at any time during Executive’s employment with Asbury, to the extent that Executive participates in a bonus compensation plan at the date of Termination, Asbury shall pay Executive a pro rata portion of that bonus for the year of the Termination equal to the amount of the bonus that Executive would have received if Executive’s employment had not been terminated during such year, multiplied by the percentage of such year that has expired through the date of Termination. Such bonus shall be paid at such time as bonuses are paid under the bonus compensation plan to Asbury’s other employees whose employment was not terminated in such year.

    Asbury further agrees that, if Executive, upon a Termination (as defined in Section 2 below) of Executive’s employment occurs at any time during Executive’s employment with Asbury, timely and properly elects COBRA for any medical, dental and vision benefit plans in which Executive was participating immediately prior to the end of Executive’s employment with Asbury, Asbury shall continue to pay its portion of the monthly premium for those COBRA-covered medical, dental and vision benefit plans for a period of 12 months after the last day of Executive’s employment with Asbury. Notwithstanding the above, if Executive obtains other employment (prior to the end of the 12 month COBRA reimbursement period) under which Executive is eligible to be covered by benefits equal to the benefits in his COBRA-elected plans,
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Asbury’s obligation to reimburse Executive ceases upon Executive’s eligibility for such equal benefits.

    Notwithstanding anything herein to the contrary, if Executive is determined to be a “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended the (“Code”) and if one or more of the payments or benefits to be received by Executive pursuant to this Agreement would be considered deferred compensation subject to Section 409A of the Code, then no such payment shall be made or benefit provided until six (6) months following Executive’s date of Termination.

2.Termination Triggering Severance Pay

    A “Termination” triggering the Severance Pay set forth above in Section 1 is defined as a termination of Executive’s employment with Asbury: (1) by Asbury without “cause”, or (2) by Executive because of (x) a material change in the geographic location at which the Executive must perform Executive’s services (which shall in no event include a relocation of Executive’s current principal place of business to a location less than 50 miles away), (y) a material diminution in Executive’s base compensation, or (z) a material diminution in Executive’s authority, duties, or responsibilities. For avoidance of doubt, a “Termination” shall not include a termination of Executive’s employment by Asbury for “cause” or due to Executive’s, death, disability, retirement or voluntary resignation.

    For the purposes of this Agreement, the definition of “cause” is: (a) Executive’s gross negligence or serious misconduct (including, without limitation, any criminal, fraudulent or dishonest conduct) that is or may be injurious to Asbury; or (b) Executive’s being convicted of, or entering a plea of nolo contendere to, any crime that constitutes a felony or involves moral turpitude; or (c) Executive’s breach of Sections 3, 4 or 5 below; or (d) Executive’s willful and continued failure to perform Executive’s duties on behalf of Asbury; or (e) Executive’s material breach of a written policy of Asbury. For purposes of this Agreement, the definition of “disability” is a physical or mental disability or infirmity that prevents the performance by Executive of his duties lasting (or likely to last, based on competent medical evidence presented to Asbury) for a continuous period of six months or longer.

3.Confidential Information and Nondisclosure Provision

    As a condition to the receipt of the Severance Pay and benefits described in Section 1 above, during and after employment with Asbury, Executive shall agree not to disclose to any person (other than to an employee or director of Asbury, or to Asbury’s attorneys, accountants and other advisors or except as may be required by law) and not use to compete with Asbury any confidential or proprietary information, knowledge or data that is not in the public domain that was obtained by Executive while employed by Asbury regarding Asbury or any products, improvements, customers, methods of distribution, sales, prices, profits, costs, contracts, suppliers, business prospects, business methods, techniques, research, trade secrets or know-how of Asbury (collectively, “Confidential Information”). In the event that Executive’s employment with Asbury ends for any reason, Executive will deliver to Asbury on or before the Executive’s
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last day of employment all documents and data of any nature (whether in tangible or electronic form) pertaining to Executive’s work with Asbury and will not take any documents or data or any reproduction, or any documents containing or pertaining to any Confidential Information. Executive agrees that in the event of a breach by Executive of this provision, Asbury shall be entitled to inform all potential or new employers of such breach and to cease payments and benefits that would otherwise be made pursuant to Section 1 above, as well as to obtain injunctive relief and damages, including reasonable attorneys fees, and which may include recovery of amounts paid to Executive under this Agreement.

4.Non-Solicitation/Non-Hire of Employees

    Executive agrees that, during his employment at Asbury and for a 12-month period after the end of his employment with Asbury for any reason, he will not, directly or indirectly, solicit, recruit or hire any employee of Asbury (or any person who was an employee of Asbury during the 12 month period preceding the last day of Executive’s employment with Asbury) or encourage any such employee to terminate employment with Asbury.

5.Covenant Not to Compete

    Executive agrees that, during his employment at Asbury and for a 12-month period after the end of his employment with Asbury for any reason, he will not (except on behalf of or with the prior written consent of Asbury, which consent may be withheld in Asbury’s sole discretion):

(a)provide services of a leadership, management, executive, operational, or advisory capacity and/or participate in the ownership of or provide financial backing to an automotive dealership that is located within a fifty-mile radius of any address set forth on Exhibit A (the “Area”);

(b)provide senior/corporate level leadership, executive, operational, or advisory services to any corporate competitor of Asbury who owns or operates one or more automotive dealerships within the Area; and

(c)provide services of a leadership, management, executive, operational or advisory capacity for anyone or any business whose focus is buying, conglomerating, or otherwise acquiring one or more automotive dealerships that are located within the Area.

    For purposes of this Section 5, Executive acknowledges and agrees that Asbury conducts business in the Area and that the Area is a reasonable geographic limitation.

    Notwithstanding anything to the contrary contained in this Agreement, Asbury hereby agrees that the foregoing covenant shall not be deemed breached as a result of the passive ownership by Executive of: (i) less than an aggregate of 5% of any class of stock of a business that competes with Asbury; or (ii) less than an aggregate of 10% in value of any instrument of indebtedness of a business that competes with Asbury. Asbury further agrees that nothing in this Section 5 prohibits Executive from accepting employment from, and performing services for,
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businesses engaged in the finance industry, and businesses engaged in the manufacturing and/or sale of automobile parts or the provision of automotive service, provided such businesses do not also engage in the retail of automobiles within the Area. By way of example, nothing in this Section 5 would prohibit Executive from working with such businesses as American General Finance, NAPA Auto Parts or Goodyear.

    Within one day of the end of Executive’s employment with Asbury for any reason, Executive agrees to re-confirm his commitment to the post-employment restrictive covenants in this Agreement. Executive further agrees that, as part of that re-confirmation, the term “Area” and Exhibit A hereto may be amended by Asbury, but only to the extent necessary to list the addresses of Asbury’s headquarters and any automotive dealerships that Asbury owns and/or operates as of the last day of Executive’s employment with Asbury.

6.Construction/Enforcement of Post-Employment Covenants

    Executive agrees that the provisions of Sections 3, 4 and 5 are reasonable and properly required for the adequate protection of the business and the goodwill of Asbury. However, if a judicial determination is made that any of the provisions of Sections 3, 4 or 5 constitutes an unreasonable or otherwise unenforceable restriction against Executive, such provision(s) shall be modified or severed so as to permit enforcement of the provision(s) to the extent reasonable.

7.Violation of Post-Employment Covenants

Executive agrees that, in the event of a material breach by Executive of any Section of this Agreement, including Sections 3, 4, or 5, Asbury shall be entitled to: (i) inform all potential or new employers of such breach; (ii) cease payments and benefits that would otherwise be made pursuant to Section 1 above (and in lieu of such payments and benefits pay Executive five hundred dollars ($500.00)); (iii) obtain injunctive relief and damages, including reasonable attorney’s fees; and (iv) recover the amounts paid to Executive under this Agreement (other than the above-referenced $500.00) during any period of material breach by Executive. To the extent that Executive is determined through agreement or resolution of any pending claim to not have violated any covenant at issue, he shall receive any and all severance that has not been paid under the Agreement and/or which was recovered from Executive under this Section 7.


A.Employment is At Will

    Executive and Asbury acknowledge and agree that Executive is an “at will” employee, which means that either Executive or Asbury may terminate the employment relationship at any time, for any reason, with or without cause or notice, and that nothing in this Agreement shall be construed as an express or implied contract of employment.

B.Execution of Release

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    Executive agrees that, as a condition to the receipt of the Severance Pay and other compensation and insurance benefits described in Section 1 above, Executive shall execute a release of all claims against Asbury (and its corporate parents, subsidiaries, franchisors, franchisees, management companies, divisions, and affiliates) and the past, present and future officers, directors, agents, officials, employees, insurers and attorneys of Asbury (and its corporate parents, subsidiaries, franchisors, franchisees, management companies, divisions, and affiliates) arising out of Executive’s employment or the end of his employment with Asbury, such release to not be revoked by Executive and to completely waive and release any claim of discrimination, harassment or wrongful discharge under local, state or federal law.

C.Alternative Dispute Resolution

    Any disputes arising under or in connection with this Agreement shall be resolved by binding arbitration before an arbitrator (who shall be an attorney with at least ten years’ experience in employment law) in the city where Executive was employed with Asbury and in accordance with the rules and procedures of the most recent employment rules of the American Arbitration Association. Each party may choose to retain legal counsel and shall pay its own attorneys’ fees, regardless of the outcome of the arbitration. Executive may be required to pay a filing fee limited to the equivalent cost of filing in the court of jurisdiction. Asbury will pay the fees and costs of conducting the arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court of jurisdiction.


Executive agrees not to make any disclosures, issue any statements or otherwise cause to be disclosed any information which is designed, intended or might reasonably be anticipated to disparage Asbury, its officers or directors, its business, services, products, technologies and/or personnel. Nothing in this section is intended, nor shall be construed, to: (i) prohibit Executive from any communications to, or participation in any investigation or proceeding conducted by, any governmental agency with jurisdiction concerning the terms, conditions and privileges of employment or jurisdiction over Asbury’s business; (ii) interfere with, restrain, or prevent Executive’s communications regarding the terms and conditions of employment; or (iii) prevent Executive from otherwise engaging in any legally protected activity.

E.Other Provisions

(a)This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of Executive and Asbury, including any successor to or assign of Asbury.

(b)Upon the end of Executive’s employment with Asbury for any reason, the provisions of this Agreement shall survive to the extent necessary to give effect to the provisions herein, including Sections 3, 4 and 5.

(c)The headings and captions are provided for reference and convenience only and shall not be considered part of this Agreement.
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(d)Executive also covenants to reasonably cooperate with Asbury if Executive is needed as a witness in any litigation or legal matters involving Asbury.
(e)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 mailing, and (iv) addressed as follows (or to such other address as the party entitled to notice shall later designate in accordance with these terms):

    If to Asbury:        Asbury Automotive Group, Inc.
                c/o The Office of the General Counsel
                2905 Premiere Parkway, Suite 300
                Duluth, GA 30097                     

If to Executive: To the most recent address of Executive set forth in the personnel records of Asbury.

(f)This Agreement supersedes any and all prior agreements between Asbury and Executive relating to payments upon Termination of employment or Severance Pay and may only be modified in a writing signed by Asbury and Executive.

(g)This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia.

(h)All payments hereunder shall be subject to any required withholding of federal, state, local and foreign taxes pursuant to any applicable law or regulation.

(i)If any provision of this Agreement shall be held invalid or unenforceable, such holding shall not affect any other provisions, and this Agreement shall be construed and enforced as if such provisions had not been included. No provision of this Agreement shall be waived unless the waiver is agreed to in writing and signed by Executive and the Chief Human Resources Officer of Asbury. No waiver by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision or of the same condition or provision at another time.

(j)The parties hereto acknowledge and agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A of the Code and the Department of Treasury regulations and other interpretive guidance issued thereunder. Notwithstanding any provision of this Agreement to the contrary, in the event that Asbury determines that any amounts payable hereunder will be immediately taxable to Executive under Section 409A of the Code and related Department of Treasury guidance, Asbury and Executive shall cooperate in good faith to (x) adopt such amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that they mutually determine to be necessary or appropriate
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to preserve the intended tax treatment of the benefits provided by this Agreement, to preserve the economic benefits of this Agreement and to avoid less favorable accounting or tax consequences for Asbury and/or (y) take such other actions as mutually determined to be necessary or appropriate to exempt the amounts payable hereunder from Section 409A of the Code or to comply with the requirements of Section 409A of the Code and thereby avoid the application of penalty taxes thereunder.

    This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument.

AGREED TO AS OF July 28, 2022

/s/ Daniel Clara/s/ David W. Hult
Name:    Daniel Clara
Name: David W. Hult
Title: Senior Vice President, Operations
Title: President & CEO

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As used in the Severance Pay Agreement, “Area” means a 50-mile radius from any of the following addresses:

2905 Premiere ParkwayDuluthGA30097
11505 Alpharetta HighwayRoswellGA30076
10995 Westside ParkwayAlpharettaGA30009
1355 Cobb Parkway SouthMariettaGA30060
1606 Church StreetDecaturGA30033
4200 Jonesboro RoadUnion CityGA30291
4197 Jonesboro RoadUnion CityGA30291
7909 Mall ParkwayLithoniaGA30038
2550 The Nalley WayAtlantaGA30360
2020 Cobb ParkwayMariettaGA30080
7849 Mall ParkwayLithoniaGA30038
2750 South Cobb ParkwaySmyrnaGA30080
980 Mansell RoadRoswellGA30076
1310 Buford HighwayCummingGA30041
11130 Alpharetta HighwayRoswellGA30076
7969 Mall ParkwayLithoniaGA30038
4115 Jonesboro RoadUnion CityGA30291
1550 Mansell RoadAlpharettaGA30009
9899 East Arapahoe RoadCentennialCO80112
9899 East Arapahoe RoadCentennialCO80112
2501 35th AvenueGreeleyCO80634
4720 West 24th StreetGreeleyCO80634
1650 West 104th AvenueDenverCO80234
4105 West 96th StreetIndianapolisIN46268
1920 North Lebanon StreetLebanonIN46052
745 East 56th StreetBrownsburgIN46112
450 East Northfield DriveBrownsburgIN46112
3232 Harper RoadIndianapolisIN46240
2001 Stony Creek RoadNoblesvilleIN46060
8693 East US Highway 36AvonIN46123
3477 East Conner StreetNoblesvilleIN46060
9900 Pleasant StreetNoblesvilleIN46060
4400 South US Highway 1Fort PierceFL34982
4429 US 1 SouthFort PierceFL33954
7245 Blanding BoulevardJacksonvilleFL32244
10880 Philips HighwayJacksonvilleFL32256
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2655 North Volusia AvenueOrange CityFL32763
2677 North Volusia AvenueOrange CityFL32763
2308 South Woodland BoulevardDelandFL32720
9650 Atlantic BoulevardJacksonvilleFL32225
11003 Atlantic BoulevardJacksonvilleFL32225
4450 US 1 SouthFort PierceFL34982
11051 South Orange Blossom TrailOrlandoFL32837
2925 US 1 SouthSt. AugustineFL32086
10600 Atlantic BoulevardJacksonvilleFL32225
10859 Philips HighwayJacksonvilleFL32256
11340 Philips HighwayJacksonvilleFL32256
31975 US Highway 19 NorthPalm HarborFL34684
4500 US 1 SouthFort PierceFL34982
13165 North Autoshow AvenueSurpriseAZ85388
5995 Alameda Boulevard NEAlbuquerqueNM87113
7201 & 7501 Lomas Boulevard NEAlbuquerqueNM87110
9733 Coors Boulevard NWAlbuquerqueNM87114
5500 South State StreetMurrayUT84107
2125 North University ParkwayProvoUT84604
2500 West 104th AvenueThorntonCO80234
2727 South Havana StreetAuroraCO80014
10055 West Papago FreewayAvondaleAZ85323
8528 Lomas Boulevard NEAlbuquerqueNM87110
222 South Auto DriveBoiseID83709
755 North 500 WestWest BountifulUT84010
1825 North University ParkwayProvoUT84604
1481 West Riverdale RoadRiverdaleUT84405
10905 South Auto Mall DriveSandyUT84070
7800 East 22nd StreetTucsonAZ85710
350 South Havana StreetAuroraCO80012
10101 West Papago FreewayAvondaleAZ85323
4220 East 22nd StreetTucsonAZ85711
8665 West Bell RoadPeoriaAZ85382
1208 West 3rd AvenueSpokaneWA99201
11595 West 6th AvenueLakewoodCO80215
11442 South Lone Peak ParkwayDraperUT84020
1995 North University ParkwayProvoUT84604
460 East Auto Center DriveMesaAZ85204
7710 West Gratz DriveBoiseID83709
5808 South State StreetMurrayUT84107
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9820 Coors Boulevard NWAlbuquerqueNM87114
8425 W Bell RoadPeoriaAZ85382
5686 South State StreetMurrayUT84107
544 South Lindon Park DriveLindonUT84042
2400 West 104th AvenueDenverCO80234
10030 East Arapahoe RoadCentennialCO80112
1320 Plum Valley LaneHighlands RanchCO80129
2025 Riverview Auto DriveMesaAZ85201
8800 Lomas NEAlbuquerqueNM87112
11196 West Fairview AvenueBoiseID83713
1340 South 500 WestSalt Lake CityUT84115
1700 West 6th StreetCoronaCA92882
6800 Federal BoulevardLemon GroveCA91945
5650 South State StreetMurrayUT84107
8633 West Bell RoadPeoriaAZ85382
200 West 9000 SouthSandyUT83704
9380 West Fairview AvenueBoiseID83704
5701 South State StreetMurrayUT84107
690 South State StreetOremUT84058
5212 Freeway Park DriveRiverdaleUT84405
10990 South Automall DriveSandyUT84070
10910 South Automall DriveSandyUT84070
10205 West Papago FreewayAvondaleAZ85323
8303 West Colfax AvenueLakewoodCO80214
900 West AutoMall DriveTucsonAZ85705
11548 South Lone Peak ParkwayDraperUT84020
3908 West Wendover AvenueGreensboroNC27407
8704 West Broad StreetRichmondVA23294
3902 West Wendover AvenueGreensboroNC27407
3710 West Wendover AvenueGreensboroNC27407
436 North McPherson Church RoadFayettevilleNC28303
256 Swain StreetFayettevilleNC28303
3633 West Wendover AvenueGreensboroNC27407
951 Southpoint Auto Park BoulevardDurhamNC27713
8712 West Broad StreetRichmondVA23294
3900 West Wendover AvenueGreensboroNC27407
3607 West Wendover AvenueGreensboroNC27407
8710 West Broad StreetRichmondVA23294
12100 Midlothian TurnpikeMidlothianVA23113
1300 East State Highway 114DallasTX75261
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901 East State Highway 114GrapevineTX76051
6785 Dallas ParkwayPlanoTX75024
4201 Beltway PlaceArlingtonTX76018
6113 Lemmon AvenueDallasTX75209
5601 Bryant Irvin RoadFort WorthTX76132
3515 Inwood RoadDallasTX75209
6107 Lemmon AvenueDallasTX75209
2712 Laurens RoadGreenvilleSC29607
2668 Laurens RoadGreenvilleSC29607
2700 Laurns RoadGreenvilleSC29607
2686 Laurens RoadGreenvilleSC29607
11654 Olive BoulevardCreve CoeurMO63141
951 Technology DriveO'FallonMO63368
755 North New BallasCreve CoeurMO63141
11910 Olive BoulevardCreve CoeurMO63141
11830 Olive BoulevardCreve CoeurMO63141
7999 West Colfax AvenueLakewoodCO80214
5500 South BroadwayLittletonCO80121
15000 West Colfax AvenueLakewoodCO80401
600 South Main StreetLongmontCO80501
8337 Rasberry WayFrederickCO80504
801 Denver West Colorado Mills BoulevardLakewoodCO80401
444 South Havana StreetAuroraCO80012
780 Denver West Colorado Mills BoulevardLakewoodCO80401
9207 Adamo DriveTampaFL33619
3810 West Hillsborough AvenueTampaFL33614
9205 Adamo DriveTampaFL33619
3800 West Hillsborough AvenueTampaFL33614
9210 Adamo DriveTampaFL33619
4600 North Dale Mabry HighwayTampaFL33614
4400 North Dale Mabry HighwayTampaFL33614
4051 West Plano ParkwayPlanoTX75093
13553 US Hwy 183 NorthAustinTX78750
300 West Loop 820 SouthFt. WorthTX76108
1601 North Dallas Parkway
(7200 State Highway 121)
3700 West Airport FreewayIrvingTX75062
6400 TX-121FriscoTX75034

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