Exhibit
10.6


 


 


 


                                                                                                                January
23, 2004


 


 


 


Mr. Thomas Gilman


4831 West Wickford


Bloomfield Hills, MI  48302


 


Dear Tom:


 


This letter agreement (“Agreement”) sets
forth our agreement regarding your relinquishment of your duties as Senior Vice
President and Chief Financial Officer of Asbury Automotive Group, Inc.
(“Asbury”), and the terms of your continued employment with Asbury.


 


1.             Relinquishment.  You relinquished your duties as Senior Vice
President and Chief Financial Officer of Asbury on September 15, 2003 (the
“Relinquishment Date”).  As of the
Relinquishment Date, you no longer serve as an officer or director of Asbury or
any subsidiaries or affiliates of Asbury. 
Upon Asbury’s request, you agree to sign and deliver resignation letters
memorializing your resignations as an officer or director of Asbury and its
subsidiaries or affiliates.


2.             Employment.  You will continue as an employee of Asbury
from the Relinquishment Date until the earliest of: (a) April 30, 2004, (b)
your death, or (c) your receipt of written notice of termination from
Asbury.  Such notice may be given if you
materially breach the terms and conditions of this Agreement, provided, however,
if, in Asbury’s good faith judgment, such breach is capable of being cured, you
will receive written notice and a period of seven days from the date of such
notice in which to cure such breach before Asbury may terminate your employment
(the “ Employment Period”).


3.             Salary.  Your salary during the Employment Period
will be One Hundred Thousand Dollars ($100,000), payable in equal installments
on Asbury’s regular payroll dates.  If
you die prior to receiving the entire One Hundred Thousand Dollars ($100,000),
Asbury will pay your heirs in a lump sum the remaining balance of the One
Hundred Thousand Dollars ($100,000) that you have not previously received.


4.             Employment
Duties.  During the Employment
Period, you will make yourself generally available by telephone, e-mail and
facsimile to Asbury for assistance on any matters as reasonably requested by
Asbury, including, but not limited to, credit agreement and lender issues,
Asbury’s Toyota lending relationship, Asbury’s real estate holdings and
financing issues, CAP EX projects, and transition and continuity matters,  as well as to provide assistance in the
pursuit or defense of any claims, investigations or litigation about which you
may have

















 


knowledge.  You will also perform such other duties as
reasonably specifically directed by either Kenneth B. Gilman or Gordon..  In carrying out your employment duties, you
agree that in no event will you contact parties outside Asbury on Asbury
business in the absence of specific written instructions from either Mr. Gilman
or Mr. Smith   While performing your
employment duties, you will not incur any business expenses on behalf of Asbury
without Asbury’s prior written approval thereof.


5.             Termination of
Severance Pay Agreement.  You and
Asbury entered into an Agreement dated November 1, 2002 (the “Severance Pay
Agreement”), setting forth the respective rights and obligations of each party
in the event of termination of your employment.  The Severance Pay Agreement is hereby terminated and of no
further force and effect.  You
acknowledge that you are not entitled to any payments or benefits under the
Severance Pay Agreement.


6.             Continuation of
Certain Benefits.  You will continue
to participate in health, dental, disability and life insurance in which you
were participating on the Relinquishment Date until the earlier of: (a)
September 14, 2004, and (b) your death (the “Benefit Termination Date”).  Your levels of contribution and coverage
will remain the same as in effect on the Relinquishment Date, except for any
changes that apply to Asbury corporate employees generally.  After the Benefit Termination Date, any such
benefits to which you or your heirs may be entitled by law or the governing
plan document for such benefits will continue for the time period and in the
manner required by law or the governing plan document, as the case may be.  In addition, you may continue to participate
in Asbury’s 401(k) plan during the Employment Period.


7.             Discontinuance
of Certain Benefits.  Effective the
Relinquishment Date, you are no longer eligible for participation in Asbury’s
bonus plan or entitled to a car allowance, Asbury executive perquisites, or
vacation accrual.


8.             Payments.  In consideration of your agreement to
relinquish your duties as Senior Vice President and Chief Financial Officer of
Asbury and the termination of the Severance Pay Agreement, upon execution and
delivery to Asbury of this Agreement and the Release (as defined hereafter),
you will be entitled to an aggregate amount of Four Hundred Thousand Dollars
($400,000) less applicable withholding and taxes, payable in equal installments
on Asbury’s regular payroll dates over a twelve month period.  If you die prior to receiving all of these
payments, Asbury agrees to pay the remaining balance of the payments in a lump
sum to your heirs.


9.             Target Bonus.  In further consideration of your agreement
to relinquish your duties as Senior Vice President and Chief Financial Officer
of Asbury and the termination of the Severance Pay Agreement, upon expiration
of the seven day revocation period in the Release, Asbury will promptly pay you
a lump sum payment of $198,000 less applicable withholding and taxes,
representing your prorated target bonus for 2003.


 


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10.           Stock Options.  During the Employment Period, you will
continue to hold your stock options, which will continue to vest during such
period and become fully vested on the dates established in the applicable grant
document(s) provided such vesting dates occur on or before the end of the
Employment Period.  Any stock options
not vested as of the end of the Employment Period will be forfeited.  In accordance with the applicable grant
document(s), your vested options will be exercisable for a period of ninety
(90) days  following the last day of the
Employment Period, unless such period terminates due to your death, in which
case, your vested options will be exercisable for a period of one year
following your death.


11.           Release.  As a condition to receiving the benefits
described in this Agreement, you agree to execute and deliver to Asbury the
General Release (the “Release”) enclosed with this letter.  You have a minimum of twenty one days to
consider the enclosed Release.  In
accordance with the Older Worker Benefit Protection Act, I am required to
advise you to consult with an attorney to the extent you desire regarding the
terms of the Release.  As a further
condition to receiving the benefits described in this Agreement, upon
expiration of the Employment Period, you agree to execute and deliver to Asbury
the Separation of Employment Agreement and General Release in the form attached
hereto as Exhibit “A”.  Asbury
agrees to execute and deliver the Release attached hereto as “Exhibit B”.


12.           Continuing
Obligations.  You will continue to
be bound by the terms of the Shareholders Agreement dated March 1, 2002 and the
“lock-up agreement” you entered into with Goldman, Sachs & Co. dated March
18, 2002 until such agreements or specific provisions thereof are terminated in
accordance with their terms.  Among
other provisions, both of such 
agreements restrict the sale of the Asbury stock you currently own as
well as Asbury stock acquired in the open market or through the exercise of
stock options.  Further, you agree not
to disparage Asbury or otherwise take any actions to injure Asbury’s business,
reputation or good will.


From
and after the date of execution of this Agreement, Asbury agrees that its Chief
Executive Officer, Senior Vice Presidents and Vice Presidents will not take any
actions with the intent and effect of disparaging you.  For the purposes of this paragraph, an individual’s
refusal to respond to any inquiries made by third parties about you, you
employment with Asbury or the termination of that employment (other than to
confirm dates of employment), shall not constitute an action which is intended
to disparage you.


13.           Confidential
Information Nondisclosure Provision. 
During and after the Employment Period, you agree not to disclose to any
person (other than to an employee or director of Asbury or any affiliate and
except as may be required by law) and not to use to compete with Asbury or any
affiliate any confidential or proprietary information, or data that is not in
the public domain that was obtained by you while employed by Asbury with
respect to Asbury or any affiliate or with respect to any products, improvements,
customers, methods of distribution, sales, prices, profits, costs, contracts,
suppliers, business prospects, business


 


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methods, techniques,
research, trade secrets or know-how of Asbury or any affiliate (collectively,
“Confidential Information”).  On or
before expiration of the Employment Period, you will deliver to Asbury all
documents and data of any nature pertaining to your work with Asbury and will
not take any documents or data or any reproduction of any documents containing
or pertaining to any Confidential Information. 
You agree that in the event of your breach of this Paragraph 13, Asbury
shall be entitled to inform all potential or new employers of the terms of this
paragraph, and to cease payments and benefits that would otherwise be made
under this Agreement, as well as to obtain injunctive relief and damages which
may include recovery of amounts paid to you under this Agreement.


14.           Non-Solicitation
of Employees.  You agree that during
the Employment Period and for a period of one year following final payment to
you of the amounts set forth in Paragraph 8 above, you shall not directly or
indirectly solicit for employment or employ any person who, at any time during
the 12 months preceding the Relinquishment Date, is or was employed by Asbury
or any affiliate, to terminate their employment relationship.  You agree that in the event of a breach by
you of this Paragraph 14, Asbury shall be entitled to inform all potential or
new employers of the terms of this paragraph, and to cease payments and
benefits that would otherwise be made under this Agreement, as well as to
obtain injunctive relief and damages which may include recovery of amounts paid
to you under this Agreement.


                15.  Covenant
Not to Compete.  You agree that
during the Employment Period, and until the date specified herein for receipt
of the final payment to you of the amounts set forth in Paragraph 8 above, you
shall not directly or indirectly engage in or participate in, represent or be
connected with in any way, 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 activities on behalf of AutoNation, Sonic,
Lithia, United Auto Group, Group 1, or
any other publicly-traded automotive consolidator.  If requested in writing by Asbury, you shall disclose in writing
to Asbury the name, address and type of business conducted by any proposed new
employer.  You agree that in the event
of a breach by you of this Paragraph 15, Asbury shall be entitled to inform all
potential or new employers of the terms of this paragraph, and to cease
payments and benefits that would otherwise be made under this Agreement, as
well as to obtain injunctive relief and damages which may include recovery of
amounts paid to you under this Agreement


16.           Indemnification. Your rights to
indemnification shall continue to be governed by the Indemnification Agreement
dated as of March 10, 2003 and you shall continue to be covered by Asbury’s
Directors’ and Officers’  Insurance.


This Agreement and the
Release constitute the entire agreement between you and Asbury with respect to
your relinquishment of your duties as Senior Vice President and Chief Financial
Officer of Asbury and your employment relationship with Asbury.


 


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If you have any questions
regarding this Agreement, please contact Phil Johnson, Asbury Vice President,
Human Resources..  Otherwise, if you
accept the terms and conditions of this Agreement, please countersign the extra
copy of this Agreement which is enclosed and return it to Mr. Johnson, along
with the signed Release.  This Agreement
and the Release must be delivered to me no later than the 22nd day after the
date hereof.


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Sincerely,

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Kenneth B. Gilman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  President and CEO

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Asbury Automotive Group, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


                I HEREBY ACCEPT
AND APPROVE of the terms and conditions of this Agreement and intending to be
legally bound, execute and deliver this Agreement this 1st day of
February, 2004.


 


 


	
  Witness:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/ THOMAS F. GILMAN

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  THOMAS F. GILMAN

  



 


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GENERAL
RELEASE


 


1.             Thomas
F. Gilman, for and in consideration of the payments and undertakings of Asbury
Automotive Group, Inc. set forth in the letter from Kenneth B. Gilman dated January 23,  2004  (the “Letter Agreement”), do hereby REMISE, RELEASE AND
FOREVER DISCHARGE Asbury Automotive Group, Inc., its officers, directors,
shareholders, affiliates, and its and their respective employees, agents,
successors and assigns, heirs, representatives, executors, and administrators
(hereinafter all referred to as “Asbury”), from all causes of action, suits,
debts, claims, and demands whatsoever in law or in equity, which I ever had,
now have, or hereafter may have, or which my heirs, executors, or administrators
may have, whether known or unknown, by reason of any matter, cause or thing
whatsoever, from the beginning of my employment with Asbury to the date of this
General Release (“Agreement”), and particularly, but without limitation of the
foregoing general terms, any claims arising from or relating in any way to my
employment as Senior Vice President and Chief Financial Officer of Asbury, my
relinquishment of my duties as Senior Vice President and Chief Financial
Officer of Asbury, and the terms and conditions of that relinquishment,
including, but not limited, any claims arising under the Age Discrimination in
Employment Act, as amended.


2.             I
agree and covenant that I will not institute any proceedings in a court of law
seeking legal or equitable relief involving any matter arising out of my
employment as Senior Vice President and Chief Financial Officer of Asbury, my
relinquishment of my duties as Senior Vice President and Chief Financial
Officer of Asbury, and the terms and conditions of that relinquishment, (other
than an action to enforce the terms of the Letter Agreement and the plans
referenced therein and the Release) including, but not limited, any claims
arising under the Age Discrimination in Employment Act, as amended.


3.             I
acknowledge that I remain bound by certain obligations as contained in the
Letter Agreement and herein.  I
understand and agree that any violation of these obligations will be deemed to
be a material breach of the Letter Agreement and this Agreement, and in such
event Asbury shall have the right to terminate any payments or benefits
remaining under the Letter Agreement and to 
seek recovery of any payments or benefits made prior to discovery of the
breach. . Asbury acknowledges that I may bring an action to enforce the terms
of the Letter Agreement and the plans referenced therein and the Release.


4.             I
certify and acknowledge as follows:


a.             That
I have read the terms of this Agreement, and that I understand its terms and
effects, including the fact that I have agreed to RELEASE AND FOREVER DISCHARGE
Asbury from any legal action arising out of my employment as Senior Vice
President and Chief Financial Officer of Asbury, my relinquishment of my duties
as Senior Vice President and Chief Financial Officer of Asbury, and the terms
and conditions of that relinquishment, (other than an action to enforce the
terms of the Letter Agreement and the plans

















 


referenced therein and
the Release) including, but not limited, any claims arising under the Age
Discrimination in Employment Act, as amended;


b.             That
I have signed this Agreement voluntarily and knowingly in exchange for the
consideration described in the Letter Agreement, which I acknowledge is
adequate and satisfactory to me;


c.             That
the payments, benefits, promises and undertakings set forth in the Letter
Agreement exceed and are greater than the payments and benefits, if any, to
which I would have been entitled upon termination of my employment as Senior
Vice President and Chief Financial Officer of Asbury had I not executed the
Letter Agreement  and this Agreement;


d.             That
I have been advised in writing to consult with an attorney concerning this
Agreement;


e.             That
Asbury has provided me with a period of at least twenty-one (21) days in which
to consider this Agreement, and that I have signed on the date indicated below
after concluding that this Agreement is satisfactory to me; and


f.              That
neither Asbury nor any of its agents, representatives, employees, or attorneys,
have made any representations to me construing the terms or effects of this
Agreement other than those contained in this Agreement.


5.             This
Agreement may be revoked in writing by Asbury or me within seven (7) days after
execution, and shall not become effective or enforceable until such revocation
period expires.  I understand and agree
that in the event I wish to revoke this Agreement, notice of such revocation
must be delivered, before 5 p.m. local time on the seventh day following my
execution of this Agreement, to Asbury Automotive Group, Inc., Attn: Vice
President, Human Resources, 3 Landmark Square, Suite 500, Stamford, CT 06901.


IN WITNESS WHEREOF, and intending to be legally bound
hereby, I hereby execute this General Release this 1st day of
February, 2004.


Witness:


 


 


	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/
  THOMAS F. GILMAN

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Thomas F. Gilman

  
									



 


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EXHIBIT
“A”


 


SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE


1.             I,
Thomas F. Gilman, for and in consideration of the payments and undertakings of
Asbury Automotive Group, Inc. set forth in the letter from Kenneth B. Gilman
dated  January  23, 2004  (the “Letter Agreement”), do hereby
REMISE, RELEASE AND FOREVER DISCHARGE Asbury Automotive Group, Inc., its
officers, directors, shareholders, affiliates, and its and their respective employees,
agents, successors and assigns, heirs, representatives, executors, and
administrators (hereinafter all referred to as “Asbury”), from all causes of
action, suits, debts, claims, and demands whatsoever in law or in equity, which
I ever had, now have, or hereafter may have, or which my heirs, executors, or
administrators may have, whether known or unknown, by reason of any matter,
cause or thing whatsoever, from the beginning of my employment with Asbury to
the date of this Separation of Employment Agreement and General Release
(“Agreement”), and particularly, but without limitation of the foregoing
general terms, any claims arising from or relating in any way to my employment
relationship with Asbury, the termination of that relationship, and the terms
and conditions of that employment relationship, including, but not limited, any
claims arising under the Age Discrimination in Employment Act, as amended.


2.             I agree and covenant that I will not institute any
proceedings in a court of law seeking legal or equitable relief involving any
matter arising out of my employment relationship with Asbury, the termination
of that relationship, the terms and conditions of that employment relationship
(other than an action to enforce the terms of the Letter Agreement and the
plans referenced therein and the Release) including, but not limited, any
claims arising under the Age Discrimination in Employment Act, as amended.


3.             I agree and recognize that my employment relationship
with Asbury has been permanently and irrevocably severed, and that Asbury has
no obligation, contractual or otherwise, to employ or appoint me in the future.


4.             I acknowledge that I remain bound by certain obligations
as contained in the Letter Agreement and herein.  I understand and agree that any violation of these obligations
will be deemed to be a material breach of the Letter Agreement and this
Agreement, and in such event Asbury shall have the right to terminate any
payments of benefits remaining under the Letter Agreement and to seek recovery
of any payments or benefits made prior to discovery of the breach. Asbury
acknowledges that I may bring an action to enforce the terms of the Letter
Agreement and the plans referenced therein and the Release.

















 


5              I certify and acknowledge as follows:


a.             That
I have read the terms of this Agreement, and that I understand its terms and
effects, including the fact that I have agreed to RELEASE AND FOREVER DISCHARGE
Asbury from any legal action arising out of my employment relationship with
Asbury, the termination of that relationship, the terms and conditions of that
employment relationship, including, but not limited, any claims arising under
the Age Discrimination in Employment Act, as amended;


b.             That
I have signed this Agreement voluntarily and knowingly in exchange for the
consideration described in the Letter Agreement, which I acknowledge is
adequate and satisfactory to me;


c.             That
the payments, benefits, promises and undertakings set forth in the Letter
Agreement exceed and are greater than the payments and benefits, if any, to
which I would have been entitled upon resignation or termination of my
employment with Asbury had I not executed the Letter Agreement and this
Agreement;


d.             That
I have been advised in writing to consult with an attorney concerning this
Agreement;


e.             That
Asbury has provided me with a period of at least twenty-one (21) days in which
to consider this Agreement, and that I have signed on the date indicated below
after concluding that this Agreement is satisfactory to me; and


f.              That
neither Asbury nor any of its agents, representatives, employees, or attorneys,
have made any representations to me construing the terms or effects of this
Agreement other than those contained in this Agreement.


6.             This Agreement may be revoked in writing by Asbury or me
within seven (7) days after execution, and shall not become effective or
enforceable until such revocation period expires.  I understand and agree that in the event I wish to revoke this
Agreement, notice of such revocation must be delivered, before 5 p.m. local
time on the seventh day following my execution of this Agreement, to Asbury
Automotive Group, Inc., Attn: Vice President, Human Resources, 3 Landmark
Square, Suite 500, Stamford, CT 06901.


 


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IN WITNESS WHEREOF, and
intending to be legally bound hereby, I hereby execute the foregoing Separation
of Employment Agreement and General Release this 1st day of
February, 2004.


	
  Witness:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  /s/
  THOMAS F. GILMAN

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Thomas F. Gilman

  
										



 


 


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EXHIBIT B


GENERAL
RELEASE


1.             Asbury
Automotive Group, Inc. (“Asbury”), for and in consideration of the undertakings
of Thomas F. Gilman set forth in the General Release dated January ___, 2004
and the Separation of Employment Agreement and General Release to be executed
on May 1, 2004 (the “Releases”), does hereby REMISE, RELEASE AND FOREVER
DISCHARGE Thomas F. Gilman and his heirs, successors, representatives, executors,
administrators and assigns (hereinafter referred to as “Gilman”), from all
causes of action, suits, debts, claims, and demands whatsoever in law or in
equity which are “known to senior management of Asbury” on the date hereof or
which, with the exercise of reasonable due diligence by such senior management
could have been known to Asbury on the date hereof , by reason of any matter,
cause or thing whatsoever, from the beginning of Gilman’s employment with
Asbury to the date of this Release, and particularly, but without limitation of
the foregoing general terms, any claims arising from or relating in any way to
Gilman’s employment as Senior Vice President and Chief Financial Officer of
Asbury, his relinquishment of duties as Senior Vice President and Chief
Financial Officer of Asbury, and the terms and conditions of that
relinquishment (“Released Claims”). As used in this paragraph 1, “known to
senior management of Asbury” shall mean actual knowledge of any officer of
Asbury or any chief executive officer or chief financial officer of any
subsidiary of Asbury.


2.             Asbury agrees and covenants that it will not institute
any proceedings in a court of law seeking legal or equitable relief involving
any Released Claims.


IN WITNESS WHEREOF, and intending to be legally bound
this General Release is hereby executed this       
day of                    , 2004.


	
  Witness:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  ASBURY AUTOMOTIVE GROUP, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title

  	
   

  
									



 


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