Exhibit








Exhibit 10.2
    


SEVERANCE PAY AGREEMENT
FOR KEY EMPLOYEE


This Agreement is entered into as of July 7, 2017 (the “Effective Date”) between Asbury Automotive Group, Inc. (“Asbury”) and Sean Goodman (“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, 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 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, 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 


GENERAL PROVISIONS


		
	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




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.  


		
	D.
	Non-Disparagement




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.  


(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 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 7, 2017


	
							
	EXECUTIVE:
	 
	ASBURY AUTOMOTIVE GROUP, INC.

	 
	 
	 
	 
	 
	 
	 

	By:
	 
	/s/    Sean Goodman
	 
	By:
	 
	/s/    Craig T. Monaghan

	Name:
	 
	Sean Goodman
	 
	Name:
	 
	Craig T. Monaghan

	Title:
	 
	SVP & CFO
	 
	Title:
	 
	Chief Executive Officer and President







































Exhibit A


As used in the Severance Pay Agreement, “Area” means a 50-mile radius from any of the following addresses:
	
			
	Corporate Headquarters
	 
	11130 Alpharetta Highway

	2905 Premiere Parkway
	 
	Roswell, GA 30076

	Duluth, GA 30097
	 
	 

	11505 Alpharetta Highway
	 
	7969 Mall Parkway

	Roswell, GA 30076
	 
	Lithonia, GA 30038

	 
	 
	 

	10995 Westside Parkway
	 
	1550 Mansell Road

	Alpharetta, GA 30009
	 
	Alpharetta, GA 30009

	 
	 
	 

	1355 Cobb Parkway South
	 
	1310 Buford Highway

	Marietta, GA 30060-6542
	 
	Cumming, GA 30041

	 
	 
	 

	1606 Church Street
	 
	5400 South U.S. Highway 1

	Decatur, GA 30033
	 
	Ft. Pierce, FL 34982-7370

	 
	 
	 

	7555 Roswell Road
	 
	4429 US 1 South

	Atlanta, GA 30350
	 
	Ft. Pierce, FL 33954

	 
	 
	 

	4197 Jonesboro Road
	 
	7245 Blanding Boulevard

	Union City, GA 30291
	 
	Jacksonville, FL 32244

	 
	 
	 

	7909 Mall Parkway
	 
	10880 Philips Highway

	Lithonia, GA 30038
	 
	Jacksonville, FL 32256

	 
	 
	 

	2550 The Nalley Way
	 
	2655 North Volusia Avenue

	Atlanta, GA 30360
	 
	Orange City, FL 32763-2214

	 
	 
	 

	2020 Cobb Parkway
	 
	2677 North Volusia Avenue

	Marietta, GA 30080
	 
	Orange City, FL 32763-2214

	 
	 
	 

	7849 Mall Parkway
	 
	2308 S. Woodland Boulevard

	Lithonia, GA 30038
	 
	Deland, FL 32720

	 
	 
	 

	2750 S. Cobb Parkway
	 
	9650 Atlantic Boulevard

	Smyrna, GA 30080
	 
	Jacksonville, FL 32225

	 
	 
	 

	980 Mansell Road
	 
	11003 Atlantic Boulevard

	Roswell, GA 30076
	 
	Jacksonville, FL 32225

	 
	 
	 

	2551 The Nalley Way
	 
	4450 US 1 South

	Atlanta, GA 30360
	 
	Ft. Pierce, FL 34982

	 
	 
	 















	
			
	11051 South Orange Blossom Trail
	 
	256 Swain Street

	Orlando, FL 32837
	 
	Fayetteville, NC 28303

	 
	 
	 

	2925 US 1 South
	 
	3908 West Wendover Avenue

	St Augustine, FL 32086
	 
	Greensboro, NC 27407

	 
	 
	 

	10600 Atlantic Boulevard
	 
	3902 West Wendover Avenue

	Jacksonville, FL 32225
	 
	Greensboro, NC 27407

	 
	 
	 

	10859 Philips Highway
	 
	3710 West Wendover Avenue

	Jacksonville, FL 32256
	 
	Greensboro, NC 27407

	 
	 
	 

	11340 Philips Highway
	 
	3633 West Wendover Avenue

	Jacksonville, FL 32256
	 
	Greensboro, NC 27407

	 
	 
	 

	31200 US Highway 19 North
	 
	3900 West Wendover Avenue

	Palm Harbor, FL 34684
	 
	Greensboro, NC 27407

	 
	 
	 

	4500 US 1 South
	 
	3604 West Wendover Avenue

	Ft. Pierce, FL 34982
	 
	Greensboro, NC 27407

	 
	 
	 

	6060 I-55 North Frontage Road
	 
	8704West Broad Street

	Jackson, MS 39211
	 
	Richmond, VA 23294

	 
	 
	 

	201 Octavia Street
	 
	8712 West Broad Street

	Brandon, MS 39042
	 
	Richmond, VA 23294

	 
	 
	 

	108 Gray-Daniels Boulevard
	 
	8710 West Broad Street

	Brandon, MS 39042
	 
	Richmond, VA 23294

	 
	 
	 

	6080 I-55 North Frontage Road
	 
	12100 Midlothian Turnpike

	Jackson, MS 39211
	 
	Midlothian, VA 23113

	 
	 
	 

	104 Gray-Daniels Boulevard
	 
	2712 Laurens Road

	Brandon, MS 39042
	 
	Greenville, SC 29607

	 
	 
	 

	1295 Richmond Avenue
	 
	2660 Laurens Road

	Charlottesville, VA 22911
	 
	Greenville, SC 29607

	 
	 
	 

	1001 Southpoint Auto Park Boulevard
	 
	2668 Laurens Road

	Durham, NC 27713
	 
	Greenville, SC 29607

	 
	 
	 

	436 North McPherson Church Road
	 
	2700 Laurens Road

	Fayetteville, NC 28303
	 
	Greenville, SC 29607





















	
			
	2686 Laurens Road
	 
	4400 West Hillsborough Avenue

	Greenville, SC 29607
	 
	Tampa, FL 33614

	 
	 
	 

	11654 Olive Boulevard
	 
	4051 West Plano Parkway

	Creve Coeur, MO 63141
	 
	Plano, TX 75093

	 
	 
	 

	755 North New Ballas
	 
	13553 US Highway 183 North

	Creve Coeur, MO 63141
	 
	Austin, TX 78750

	 
	 
	 

	777 Decker Lane
	 
	300 West Loop 820 South

	Creve Coeur, MO 63141
	 
	Fort Worth, TX 76108

	 
	 
	 

	11910 Olive Boulevard
	 
	1601 North Dallas Parkway

	Creve Coeur, MO 63141
	 
	(7200 State Highway 121)

	 
	 
	Frisco, TX 75034

	11830 Olive Boulevard
	 
	 

	Creve Coeur, MO 63141
	 
	3700 West Airport Freeway

	 
	 
	Irving, TX 75062

	951 Technology Drive
	 
	 

	O'Fallon, Mo 63368
	 
	11911 Gulf Freeway

	 
	 
	Houston, TX 77034

	11830 Olive Boulevard
	 
	 

	Creve Coeur, MO 63141
	 
	3333 West Plano Parkway

	 
	 
	Plano, TX 75075

	9207 Adamo Drive
	 
	 

	Tampa, FL 33619
	 
	1207 East Brandon Boulevard

	 
	 
	Brandon, FL 33511

	3810 West Hillsborough Avenue
	 
	 

	Tampa, FL 33614
	 
	2320 Colonial Boulevard

	 
	 
	Ft. Myers, FL 33966

	9205 Adamo Drive
	 
	 

	Tampa, FL 33619
	 
	3102 US Highway 19

	 
	 
	Holiday, FL 34691

	3800 West Hillsborough Avenue
	 
	 

	Tampa, FL 33614
	 
	6601 West Hillsborough Avenue

	 
	 
	Tampa, FL 33634

	9210 Adamo Drive
	 
	 

	Tampa, FL 33619
	 
	2001 Stony Creek Road

	 
	 
	Noblesville, IN 46060

	4600 North Dale Mabry Highway
	 
	 

	Tampa, FL 33614
	 
	3477 East Conner Street

	 
	 
	Noblesville, IN 46060

	4400 North Dale Mabry Highway
	 
	 

	Tampa, FL 33614