exv10w3



 



Exhibit 10.3


EMPLOYEE’s COPY

Partnership’s Copy


CAPITAL AUTOMOTIVE L.P.

EMPLOYMENT AGREEMENT



To Thomas D. Eckert:


     This Agreement establishes the terms of your employment with Capital
Automotive L.P., a Delaware 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, and your prior employment agreement
with 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 with the Partnership and to your
services as President and Chief Executive
Officer on the terms contained herein. In
such position, you will report directly to
the Company’s Board of Trustees (the
“Board”) 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
Partnership 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 non-competition,
secrecy, and other provisions of Exhibit A
to this Agreement.
	 	 	 
	Term	 	
Your employment under this Agreement begins
as of August 1, 2003 (the “Effective Date”)
and ends on January 1, 2007, unless it is
terminated sooner under this Agreement.
	 	 	 
	 	 	
The period running from the Effective Date
to the date that the Agreement terminates as
set forth 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 and Bonus	 	
The Partnership (or, in its discretion, the
Company) will pay you an annual salary (the
“Salary”) for 2003 at the rate of not less
than $400,000 in accordance with its payroll
practices. Your target bonus for calendar
year 2003 will be $400,000. Each calendar
year thereafter while you are employed under
this Agreement, the Partnership or its
Compensation Committee will review your
Salary and target bonus and consider you for
increases from the Partnership.
	 	 	 
	          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 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 Employment	 	
For so long as you are employed by the
Partnership, you 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 Company.) The
Partnership acknowledges that, as of the
Effective Date, you serve as a director of
The Munder Funds (a family of mutual funds)
and the National Association of Real Estate
Investment Trusts (NAREIT) and agrees that
such directorships do not violate the
prohibition on other employment. 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.



2






 




	 	 	 
	 	 	
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 Interest	 	
You confirm that you have fully disclosed to the Partnership 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 Company or the Partnership. 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
Governmental Officials	 	
You will neither pay nor permit payment of any remuneration to
or on behalf of any governmental official other than 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, or plead guilty or no contest to, 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



3






 




	 	 	 
	 	 	such correction.
	 	 	 
	          Without Cause 	 	Subject to the provisions below under Payments on 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 or
your departure from the Board (other than by your voluntary
resignation or your choice not to stand for re-election),
	 	 	 
	 	 	
the Partnership’s relocation of its 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, 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.



4






 




	 	 	 
	 	 	You must give notice to the Partnership of your intention to
resign for Good Reason within 30 days after the occurrence of
the condition or event (within 24 months if the condition or
event is a Change of Control) that you assert entitles you to
resign for Good Reason. In that notice, you must specify the
condition or event that you consider provides you with Good
Reason and (except if the condition or event is a Change of
Control) must give the Partnership an opportunity to cure the
condition or event 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 Board
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. If the Partnership terminates your
employment because you become disabled or employment terminates
because of your death, any unvested restricted shares and any
phantom shares previously granted to you shall become Pro Rata
Vested (as defined below). 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
Termination
	 	If the Partnership terminates your employment for or without
Cause or because of disability or death 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 Vesting and Other Benefits section below or in
your option agreement, restricted share agreement or phantom
share agreement(s), 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.
	 	 	 
	          
Vesting and
Other
Benefits
          
on Termination
or Change of

          Control
	 	In addition to the foregoing payments, if a Change of Control
occurs, the Partnership terminates your employment without
Cause, or you resign for Good Reason before the end of the Term:




	 	 	 	 	 
	 	 	 	I.
	all of the stock options and restricted shares held by you
before your termination of employment or the Change of Control
(whichever is applicable) will become fully vested; and
	 	 	 	 	 
	 	 	 	
II.
	all of the phantom shares credited to you before your
termination of employment or the Change of Control (whichever is
applicable) shall be deemed to have been



5






 




	 	 	 	 	 
	 	 	 	 	credited for three (3)
years for purposes of Section 6.3 of the Capital Automotive
Group Phantom Share Purchase Program; and




	 	 	 	 	 	 	 
	 	 	 	
III.
	(a)
	 	in the case of termination without Cause or
resignation for Good Reason, and provided that you have not
previously received any benefit under the following paragraph
III(b), the Partnership will pay you an amount 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; or
	 	 	 	 	 	 	 
	 	 	 	 	(b)
	 	in the case of a Change of Control, the Partnership will
pay you an amount equal to 3 times the sum of your annual
Salary, as then in effect, plus your most recently established
target bonus, in a single lump sum as soon as practicable but in
any event no more than 10 days after the Change of Control; and
	 	 	 	 	 	 	 




	 	 	 	 	 
	 	 	 	
IV.
	the Partnership will 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 (the “Code”)
for the period of such coverage; and
	 	 	 	 	 
	 	 	 	
V.
	the Partnership will 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 (or Change of
Control), where the pro rata factor is based on days elapsed in
such year until the date of termination (or Change of Control) over 365, less any portion of the bonus for such year already
paid.
	 	 	 	 	 




	 	 	 
	 	 	
You are not required to mitigate amounts payable under the
Vesting and Other Benefits paragraphs by seeking other
employment or otherwise; however, of the foregoing benefits, an
amount equal to two hundred percent of your annual Salary is
being provided as consideration for your compliance with the
requirements of Exhibit A. Consequently, you agree to return
such amount 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.



6






 




	 	 	 
	 	 	In addition to the foregoing, if
this Employment Agreement is not
renewed by the Partnership on or
before January 1, 2007, and the
Partnership at any time thereafter
terminates your employment without
Cause or you resign for Good
Reason, (i) any unvested
restricted shares granted prior to
or during the Term and held by you
before your termination of
employment will become vested to
the extent of the ratio of the
number of days that you have been
employed by the Partnership or the
Company since the date they were
granted and the total number of
days of employment otherwise
required for them to fully vest
(determined separately for each
grant), and (ii) all of the
phantom shares granted prior to or
during the Term and credited to
you before your termination of
employment will be deemed to have
been credited for three (3) years
for the purposes of Section 6.3 of
the Capital Automotive Group
Phantom Share Purchase Program to
the extent of the ratio of the
number of days that you have been
employed by the Partnership or the
Company since the date they were
granted and the three (3) years of
employment otherwise required for
them to fully vest for purposes of
that section (determined
separately for each grant). The
pro rata vesting and crediting
referenced in (i) and (ii) in the
foregoing sentence are referred to
herein as “Pro Rata Vested.”
	 	 	 
	          
Internal Revenue Code

          Section 280G 	 	If you become entitled to any
benefits under this Agreement (the
“Agreement Benefits”), and any of
those benefits will be subject to
the tax (the “Excise Tax”) imposed
by Section 4999 of the Code (or
any similar tax that may hereafter
be imposed), the Partnership will
pay to you an additional amount
(the “Gross-up Payment”) such that
the net amount retained by you,
after deduction of any Excise Tax on the total benefits received by
you and any federal, state and
local income tax and Excise Tax on
the Gross-up Payment provided for
by this section, but before
deduction for any federal, state
or local income tax on the
Agreement Benefits, will be equal
to the total benefits that you
would have received had the Excise
Tax not been applicable and the
Gross-up Payment not paid.
Notwithstanding the foregoing, you
and the Partnership agree to in
good faith take any reasonable
actions, at no cost to either
party, to minimize or avoid
application of the Excise Tax.
	 	 	 
	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



7






 




	 	 	 
	 	 	
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 of the Partnership.
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 Beneficiary	 	
You understand and agree that the
Company is a 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.
	 	 	 
	Payments and Benefits Upon Death	 	
If, at the time of your death, the
Partnership owes you any payments
or other benefits as a result of
termination of your employment,
resignation, a Change of Control,
or your Disability, all of those
payments and benefits shall become
due and payable to your estate to
the same extent, at the same
times, and subject to the same
terms as they would have been due
and payable to you but for your
death. Further, any payments or
other benefits that become due on
account of your death shall be
paid to your estate.



8






 




	 	 	 
	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.
	 	 	 
	Arbitration	 	
Any disputes between the Partnership and you in any way
concerning your employment, the termination of your
employment, this Agreement or its enforcement shall be
submitted at the initiative of either party to binding
arbitration in the Washington Metropolitan area before
a single arbitrator pursuant to the Rules for
Resolution of Employment Disputes of the American
Arbitration Association, or its successor, then in
effect. The decision of the arbitrator shall be
rendered in writing, shall be final, and may be entered
as a judgment in any court in the Commonwealth of
Virginia. The Partnership and you each irrevocably
consents to the jurisdiction of the federal and state
courts located in Virginia for this purpose. Each
party shall be responsible for its or his own costs
incurred in such arbitration and in enforcing any
arbitration award, including attorney’s fees, provided,
however, that you will be entitled to recover your
reasonable attorney’s fees and expenses if you prevail.
Notwithstanding the foregoing, the Partnership, in its
sole discretion, may bring an action in any court of
competent jurisdiction to seek injunctive relief and
such other relief as it shall elect to enforce your
obligations in Exhibit A.
	 	 	 
	Superseding Effect	 	
This Agreement supersedes any prior oral or written
employment or severance 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.



9






 



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:
	 	   /s/ John M. Weaver
	 	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President, Secretary, and General Counsel




	 	 	 	 	 
	 	 	SEEN & AGREED TO:
	 	 	 	 	 
	 	 	CAPITAL AUTOMOTIVE REIT
	 	 	 	 	 
	 	 	
By:
	 	/s/ John M. Weaver
	 	 	 	 	

	 	 	 	 	 
	 	 	
Its:
	 	Senior Vice President, Secretary, and General Counsel



I accept and agree to the terms of employment set forth in this Agreement:


    /s/ Thomas D. Eckert




Thomas D. Eckert


Dated: August 11, 2003


10






 


Exhibit A




	 	 	 
	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 two years 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 non-public automobile dealership
or dealership group or other non-public 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
two years from the date of termination of this Agreement
and your employment with the Partnership or the Company
Group.



11






 




	 	 	 
	Definitions	 	 
	 	 	 
	          Competing
Business	 	
Competing Business means any service or
financial product 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, provided that Competing Business excludes banks, finance companies, and other
financial institutions that are not primarily
involved in real estate financing so long as
your employment or other involvement is also
not primarily involved in real estate
financing. Competing Business also includes
any public company the primary business of
which is to retail and/or service motor
vehicles. 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; 
No Solicitation	 	
During the Restricted Period, you agree that
you will not, directly 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
Company 

          Confidences	 	
Your employment with the Partnership under
and, if applicable, before this Agreement has
given and will give 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



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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 Others’
Confidences	 	
You agree not to use in working for the
Company Group and not to disclose to the
Company Group any trade secrets or other
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 Information	 	
“Confidential Information” includes, without
limitation, 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, prospects,
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



13






 




	 	 	 
	 	 	
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. 




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