Exhibit
4.1


 


 


 


ASBURY AUTOMOTIVE


 


 


WEALTH ACCUMULATION PLAN


 


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  ARTICLE I

  	
   

  
	
   

  	
  Establishment and
  Purpose

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
   

  	
  Eligibility and
  Participation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
   

  	
  Deferral Elections,
  Company Contributions, Account Valuation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
   

  	
  Distributions and
  Withdrawals

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  
	
   

  	
  Administration

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
   

  
	
   

  	
  Amendment and
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  
	
   

  	
  Informal
  Funding

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  
	
   

  	
  Claims

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  
	
   

  	
  GENERAL CONDITIONS

  	
   

  



 


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ASBURY
AUTOMOTIVE

WEALTH ACCUMULATION PLAN


 


ARTICLE I


ESTABLISHMENT AND PURPOSE


 


Asbury Automotive Group,
Inc. (the “Company”) hereby adopts the Asbury Automotive  Wealth Accumulation Plan (the “Plan”),
effective January 1, 2004 (the “Effective Date”).  The purpose of the Plan is to provide each
Participant with an opportunity to defer receipt of a portion of their salary,
bonus, and other specified cash compensation. 
The Plan is not intended to meet the qualification requirements of
Section 401(a) of the Internal Revenue Code, but is intended to be an
unfunded arrangement providing deferred compensation to eligible employees who
are part of a select group of management or highly compensated employees of the
Company within the meaning of Sections 201, 301 and 401 of ERISA.  The Plan is intended to be exempt from the
requirements of Parts 2, 3 and 4 of Title I of ERISA as a “top hat” plan, and
to be eligible for the alternative method of compliance for reporting and
disclosure available for unfunded “top hat” plans.


 


ARTICLE II


DEFINITIONS


 


2.1                                 Account.  Account means a bookkeeping account
maintained by the Company to record deferrals allocated to it by the
Participant, Company Contributions (if any), Deemed Investments, distributions,
and such other transactions, if any, that may be required to properly
administer the Plan.  An Account shall
be utilized solely as a device for the measurement of the value of the Account
Balance to be paid to the Participant under the Plan.  The Account shall not constitute or be treated as an escrow,
trust fund, or any other type of funded account for Code or ERISA purposes and
amounts credited thereto shall not be considered “plan assets” for federal
income tax or ERISA purposes.


 


2.2                                 Account
Balance.  Account Balance means,
with respect to the Deferred Compensation Account or any component Account, the
total value of all the Investment Options in which the Participant deferrals,
and Company Contributions, have been Deemed Invested as of a specific date,
taking into account the value of all distributions from that Account to the
specific date.


 


2.3                                 Allocation
Election.  Allocation Election means
a choice by a Participant of one or more Investment Options, and the allocation
among them, in which future Participant deferrals and/or existing Account
Balances are Deemed Invested for purposes of determining earnings in a
particular Account.  


 


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2.4                                 Allocation
Election Form.  Allocation Election
Form means the form (or Website screen) approved by the Plan Administrator on
which the Participant makes an Allocation Election.


 


2.5                                 Annual
Valuation Date.  Annual Valuation
Date shall mean the anniversary of the Termination Valuation Date or In Service
Distribution Valuation Date utilized to determine the amount of an annual
installment payment.


 


2.6                                 Beneficiary.  Beneficiary means a natural person, estate,
or trust designated by a Participant on the form designated by the Plan
Administrator to receive benefits to which a Beneficiary is entitled under and
in accordance with provisions of the Plan. The Participant’s estate shall be
the Beneficiary if:


 


a.               the
Participant has not designated a natural person or trust as Beneficiary, or


 


b.              the
designated Beneficiary has predeceased the Participant.


 


2.7                                 Change
in Control.  Change in Control.  Change in Control means an event or series
of events by which:


 


(a)                                  during
any period of 24 consecutive calendar months, individuals:


 


(i)                                                 who
were directors of the Company on the first day of such period, or


 


(ii)                                              whose
election or nomination for election to the Board of Directors of the Company
(“Board”) was recommended or approved by at least a majority of the directors
then still in office who were directors of the Company on the first day of such
period, or whose election or nomination for election was so approved,


 


shall cease to constitute
a majority of the Board;


 


(b)                                 the
consummation of a merger, consolidation, statutory share exchange or similar
form of corporate transaction involving the Company or any of its subsidiaries
(a “Reorganization”) or sale or other disposition of all or substantially all
of the assets of the Company to an entity that is not an affiliate of the
Company (a “Sale”), that in each case requires the approval of the Company’s
stockholders under the law of the Company’s jurisdiction of organization,
whether for such Reorganization or Sale (or the issuance of securities of the
Company in such Reorganization or Sale), unless immediately following such
Reorganization or Sale more than 50% of the total voting power (in respect of
the election of directors, or similar officials in the case of an entity other
than a corporation) of (i) the entity resulting from such Reorganization, or
the entity which has acquired all or 


 


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substantially all
of the assets of the Company (the “Surviving Entity”), or (ii) if applicable,
the ultimate parent entity that directly or indirectly has beneficial ownership
of more than 50% of the total voting power (in respect of the election of
directors, or similar officials in the case of an entity other than a
corporation) of the Surviving Entity (the “Parent Entity”) , is represented by
the Company’s outstanding securities eligible to vote for the election of the
Board (the “Company Voting Securities”) that were outstanding immediately prior
to such Reorganization or Sale (or, if applicable, is represented by shares
into which such Company Voting Securities were converted pursuant to such
Reorganization or Sale), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company Voting
Securities among the holders thereof immediately prior to the Reorganization or
Sale;


 


(c)                                  the
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or a sale of all or substantially all of the
Company’s assets; or


 


(d)                                 any
“person” (as such term is defined in Section 13(d) of the Exchange Act (or
any successor section thereto)), corporation or other entity (other than
(i) the Company, (ii) any trustee or other fiduciary holding securities under
an employee benefit plan of the Company or an affiliate, (iii) any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of shares or (iv) any
entity or individual affiliated with (x) Ripplewood Holdings L.L.C. or (y)
Freeman Spogle & Co. Incorporated, or their affiliates), becomes the
“beneficial owner” (as such term is defined in Rule 13d-3 under the Exchange
Act (or any successor rule thereto)), directly or indirectly, of securities of
the Company representing 30% or more of the combined voting power of the
Company’s then-outstanding securities.


 


2.8                                 Chief
Executive Officer.  Chief Executive
Officer means the individual who performs the functions of a Chief Executive
Officer for the Company or a Participating Employer.


 


2.9                                 Code.  Code means the Internal Revenue Code of
1986, as amended from time to time.


 


2.10                           Company.  Company means Asbury Automotive Group, Inc.


 


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2.11                           Company
Contributions.  Company
Contributions shall mean all Company Discretionary Contributions and all
Company Matching Contributions made with respect to a Participant.


 


2.12                           Company
Discretionary Contributions. 
Company Discretionary Contributions shall mean credits to a
Participant’s Retirement/Termination Sub-Account by the Company or a
Participating Employer at a time and in an amount determined in the sole
discretion of the Company or the Participating Employer.


 


2.13                           Company
Matching Contributions.  Company
Matching Contributions shall mean credits to a Participant’s
Retirement/Termination Sub-Account by the Company or a Participating Employer
based upon deferrals made by the Participant as provided in Section 4.3 of
the Plan.


 


2.14                           Compensation.  Compensation shall mean, for purposes of
this Plan, base salary (including any deferred salary under a Code
Section 401(k) or 125 plan), bonus, commissions, and such other cash
compensation (if any) approved by the Plan Administrator as Compensation for
purposes of this Plan.


 


2.15                           Compensation
Deferral Agreement.  Compensation
Deferral Agreement shall mean the deferral election form, or such other forms
furnished by the Plan Administrator (or screens on the Participant Website
approved by the Plan Administrator), on which a Participant elects: (a) the
amount of deferral and type of Compensation to be deferred beginning the first
day of the following Plan Year; (b) any In Service Distribution Dates for that
year’s, or a portion of that year’s, deferrals; and (c) the Form of Payment
elections for Termination Benefits and In Service Distributions.  The Allocation Election Form may be part of
the Compensation Deferral Agreement, in the discretion of the Plan
Administrator.


 


2.16                           Death
Benefit.  Death Benefit shall mean a
distribution of the total amount of the Participant’s Deferred Compensation
Account Balance, including any remaining unpaid In Service Account balances, to
the Participant’s Beneficiary(ies) in accordance with Article V of the
Plan.


 


2.17                           Deemed
Investment.  A Deemed Investment (or
“Deemed Invested”) shall mean the conversion of a dollar amount of deferred
Compensation and Company Contributions credited to a Participant’s Deferred
Compensation Account into notional shares or units (or a fraction of such
measures of ownership, if applicable) of the underlying investment (e.g. mutual
fund or other investment) which is referred to by the Investment Option(s)
selected by the Participant.  The
conversion shall occur as if shares (or units) of the designated investment
were being purchased (or sold, for a distribution) at the purchase price as of
the close


 


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of business of the
day on which the Deemed Investment occurs. 
At no time shall a Participant have any real or beneficial ownership in
the actual investment to which the Investment Option refers, irrespective of
whether such a Deemed Investment is mirrored by an actual identical investment
by the Company or a trustee acting on behalf of the Company.


 


2.18                           Deferred
Compensation Account .  Deferred
Compensation Account means the Account that records the total amount of
liability of the Company to the Participant 
at any point in time, and includes all In Service Accounts, the
Retirement/Termination Account , and any other Account maintained by the Plan
Administrator (e.g. a separate Company Contribution Account) to properly
administer the Plan.


 


2.19                           Deferred
Compensation Committee or “Committee”. Deferred Compensation Committee, or
“Committee” means a committee of at least three (3) officers of the Company
appointed by the Compensation Committee of the Board or the Chief Executive
Officer, who shall serve until the earlier of termination of service or
appointment of a replacement by the Compensation Committee of the Board or the
Chief Executive Officer.


 


2.20                           Disability.  Disability means that a Participant has been
determined to have incurred total and permanent disability such that the
Participant qualifies for benefits under the Company’s long-term disability
(“LTD”) group plan in which the Participant participates as of the date of
total and permanent disability.


 


2.21                           Eligible
Employee.  Eligible Employee means a
General Manager, a member of Company management with a title of Director or
higher, and (if any) such other management or highly compensated employees of
the Company (which also includes its subsidiaries for this purpose) within the
meaning of Sections 201, 301 and 401 of ERISA, as are selected by the Committee
to participate in the Plan.


 


2.22                           Employee.  Employee means a full-time salaried employee
of the Company or a Participating Employer.


 


2.23                           ERISA.  ERISA means the Employee Retirement Income
Security Act of 1974, as amended from time to time.


 


2.24                           General
Manager Participant.  General
Manager Participant means a Participant who holds the title of General Manager
with the Company.


 


2.25                           In
Service Account. In Service Account shall mean a separate component Account
of the Deferred Compensation Account, created whenever a Participant 


 


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elects a new In
Service Distribution Date (not already established with an Account) with
respect to a portion, or all, of his or her deferral contributions, to which
such portion of deferral specified by the Participant is credited and Deemed
Invested in accordance with the Participant’s Allocation Election.


 


2.26                           In
Service Distribution.  In Service
Distribution shall mean a payment by the Company to the Participant following a
date elected by the Participant (the In Service Distribution Date) of the
amount represented by the account balance in the In Service Sub-Account
pertaining to that In Service Distribution. 
In Service Distributions shall be made in accordance with Participants’
In Service Distribution form of payment election.


 


2.27                           In
Service Distribution Date.  In
Service Distribution Date shall mean the date selected by the Participant,
following which the In Service Distribution Account Balance shall be
distributed in accordance with the Plan.


 


2.28                           In
Service Distribution Valuation Date. 
In Service Distribution Valuation Date shall mean the last day of the
calendar month in which the In Service Distribution Date falls.


 


2.29                           Investment
Option.  Investment Option shall
mean a security or other investment such as a mutual fund, life insurance
sub-account, or other investment approved by the Plan Administrator for use as
part of an Investment Option menu, which a Participant may elect as a measuring
device to determine Deemed Investment earnings (positive or negative) to be
valued in the Participant’s Account or Sub-Account.  The Participant has no real or beneficial ownership in the
security or other investment represented by the Investment Option.


 


2.30                           Participant.  Participant means an Eligible Employee who:
(1) is selected to participate in this Plan in accordance with Section 3.1
and has elected to defer Compensation in accordance with the Plan in any Plan
Year; (2) has received a  Company
Discretionary Contribution; or (3) has an Account Balance in his or her
Deferred Compensation Account  greater
than zero prior to his or her death.  A
Participant’s continued participation in the Plan shall be governed by
Section 3.2 of the Plan.


 


2.31                           Participating
Employer.  Participating Employer
means a subsidiary of the Company that has adopted the Plan. The term
“Employer” or “Employers” shall mean the Company and all Participating
Employers collectively when the context so requires.


 


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2.32                           Plan.  Plan means the Asbury Automotive Deferred
Compensation Plan as documented herein and as may be amended from time to time
hereafter.


 


2.33                           Plan
Administrator.  Plan Administrator
shall mean a person or persons appointed by the Deferred Compensation Committee
who is responsible for the day-to-day decision making, record keeping, and
administration of the Plan; provided, that the Plan Administrator may delegate
duties of the Plan Administrator to employees or others to assist  in the administration of the Plan.


 


2.34                           Plan
Year.  Plan Year means
January 1 through December 31 each year.  


 


2.35                           Retirement.  Retirement (or “Retire”) shall mean the
voluntary termination of employment from the Company or a Participating
Employer upon reaching age 60, or at any age after a Participant has
participated in this Plan for ten (10) Plan Years.  Retirement shall also mean such involuntary terminations as are
designated as a Retirement for purposes of this Plan in the sole discretion of
the Committee.  A transfer of employment
between Participating Employers or between the Company and a Participating
Employer (or vice versa) shall not be deemed to be a Retirement.


 


2.36                           Retirement
Benefit.  Retirement Benefit shall
mean a distribution of the Participant’s Deferred Compensation Account Balance,
including all unpaid In Service Account balances, distributed to the
Participant (or Beneficiary) in accordance with the Participant’s payment
schedule election or as specified in Article V of the Plan.


 


2.37                           Retirement/Termination
Account.  Retirement/Termination
Account shall mean that portion of the Deferred Compensation Account not
allocated to In Service Accounts.


 


2.38                           Termination
Benefit.  Termination Benefit shall
mean the vested portion of the Participant’s Deferred Compensation Account
Balance, including all unpaid In Service Account balances, distributed in a single
lump sum in accordance with Article V of the Plan.


 


2.39                           Termination
of Employment.  Termination of
Employment shall mean the termination of a Participant’s employment with the
Company or a Participating Employer, for any reason other than Retirement or
death.  A transfer of employment between
Participating Employers or between the Company and a Participating Employer (or
vice versa) shall not be deemed to be a Termination of Employment.


 


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2.40                           Termination
Valuation Date.  Termination
Valuation Date shall mean the last day of the calendar month in which
Termination of Employment occurs.


 


ARTICLE III


ELIGIBILITY AND PARTICIPATION


 


3.1                                 Eligibility
and Participation.  Each Eligible
Employee, determined in the sole discretion of the Committee shall be eligible
to participate in this Plan.


 


3.2                                 Duration.  Once an Employee becomes a Participant, such
Employee shall continue to be a Participant so long as he or she is entitled to
receive benefits hereunder, notwithstanding any subsequent Termination of
Employment.


 


3.3                                 Revocation
of Future Participation. 
Notwithstanding the provisions of Section 3.2, the Committee may
revoke such Participant’s eligibility to make future deferrals under this
Plan.  Such revocation will not affect
in any manner a Participant’s Deferred Compensation Account or other terms of
this Plan.


 


3.4                                 Notification.  Each newly Eligible Employee shall be
notified by the Plan Administrator, in writing, of his or her eligibility to
participate in this Plan.


 


ARTICLE IV


DEFERRAL
ELECTIONS, COMPANY CONTRIBUTIONS, AND PARTICIPANT ACCOUNT VALUATION


 


4.1                                 Deferral
Elections


 


(a)                                  A
Participant shall make deferral elections under the Plan by completing and
submitting to the Plan Administrator a written Compensation Deferral Agreement
provided by the Plan Administrator (or completing and electronically submitting
the deferral election screen on the Participant website, when made available by
the Plan Administrator).   Deferral
elections shall be made during an annual enrollment period which shall end no
later than December 1 preceding the Plan Year to which the deferral
election relates, unless the enrollment period is extended by the Plan
Administrator because of extraordinary circumstances.  In no event may an enrollment period be extended beyond the last
day of the month prior to the beginning of the Plan Year to which the deferral
elections refer.  Other cash
Compensation deferral elections (if 


 


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any are permitted
under the Plan) shall be made prior to the time such amounts have been earned,
during special enrollment periods announced by the Plan Administrator.  Notwithstanding the foregoing, an Eligible
Employee who becomes eligible to be a Participant during any Plan Year may, in
the initial year of eligibility only, make deferral elections with respect to
Compensation which will be paid during the balance of such Plan Year but after
such elections in such Plan Year, within 30 days of the date of notification of
eligibility as required in Section 3.4 of the Plan.


 


(b)                                 Deferral
elections shall be for a Plan Year, and shall remain in effect from Plan Year
to Plan Year unless modified or revoked by the Participant in writing on such
forms as may be prescribed by the Plan Administrator (or by following such
procedures as are set by the Plan Administrator regarding using the Participant
website, when available) during an enrollment period.  Such modification or revocation shall become effective on the
first day of the Plan Year following the date of the modification or
revocation.


 


(c)                                  A
deferral election shall designate the amount of Compensation, which would
otherwise be paid in cash to the Participant during the Plan Year to which the
election refers, to be deferred.  A
General Manager Participant may defer up to 50% of his or her base salary (in a
specified dollar amount or by percentage), and up to 50% of his or her bonus
and/or commissions (by percentage only). 
All other Participants may defer up to 25% of their base salary (in a
specified dollar amount or by percentage), and up to 25% of their bonus (by
percentage only).  A Participant may
elect different percentages for salary and bonus.


 


(d)                                 The
foregoing notwithstanding, in the event a Participant’s deferral election
results in insufficient non-deferred Compensation from which to withhold taxes
in accordance with applicable law, the deferral election shall be reduced as
necessary to allow the Company to satisfy tax withholding requirements.


 


(e)                                  Deferrals
pertaining to base salary shall be deducted on a pro rata basis from a
Participant’s base salary for each pay period during the Plan Year, and
deferrals pertaining to bonus shall be deducted from the Participant’s bonus on
the date of payment of the bonus.  In
both cases, the amount deferred shall be credited to the Participant’s
Retirement/Termination Account or In Service Account(s), and a Deemed
Investment shall be made in the investment(s) represented by the Investment
Option(s) 


 


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elected by the
Participant as of the close of business on the date it would otherwise have
been paid as Compensation to the Participant.


 


(f)                                    The
Compensation Deferral Agreement shall also indicate the Participant’s election
of a payment schedule for his or her Retirement Benefit.  A Participant shall elect to have such
Retirement Benefit distributed: (a) a portion, or all, in a single lump sum
payable as soon as administratively practicable following the Termination Valuation
Date; and/or (b) the balance (assuming it is at least $25,000) in up to fifteen
(15) annual installment payments payable at the time and in the manner
described in Section 5.4.  An
election of a payment schedule for a Participant’s Retirement Benefit
shall pertain to the entire Retirement/Termination Account Balance.  A Participant shall be permitted to change
his or her payment schedule election at any time by filing a new
Compensation Deferral Agreement (or by following such procedures as are set by
the Plan Administrator regarding using the Participant website, when
available), provided such election is made at least thirteen  (13) months prior to the Participant’s date
of Retirement.  Any payment
schedule election made within thirteen months of Retirement shall be null
and void, and the most recent payment schedule election which is dated at
least thirteen months prior to Retirement will be in effect.


 


4.2                                 In
Service Distribution Date Election.


 


(a)                                  The
Compensation Deferral Agreement shall also indicate the Participant’s election
of In Service Distribution Date(s) (if any). 
An In Service Distribution election shall pertain to such portion of
deferred Compensation for the Plan Year as elected by the Participant and shall
cause an In Service Account to be established (unless such Account already
exists), to which such portion of deferred Compensation shall be credited.  In the event an In Service Account has
already been established for the In Service Distribution Date referred to in
the deferral election, such portion of deferred Compensation shall be credited
to the existing In Service Account.


 


(b)                                 A
Participant may maintain up to three (3) In Service Accounts.  Once an In Service Account Balance has been
fully distributed, the corresponding In Service Account is dissolved and no
longer is considered “maintained” by the Participant.


 


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(c)                                  A
Participant may change or cancel an In Service Distribution Date once only, as
follows:


 


(i)                                     An
In Service Distribution Date change (including a cancellation) may be made by
submitting a new Compensation Deferral Agreement or such other form as may be
provided for In Service Distribution Date changes by the Plan Administrator (or
completing and electronically submitting the appropriate screen on the
Participant website, when available) at any time, so long as the date that such
form is submitted to the Plan Administrator is at least thirteen (13) months
prior to the In Service Distribution Date being changed;


 


(ii)                                  The
In Service Distribution Date may be extended to a subsequent year (and must be
extended by at least one year), but it may not be made to occur sooner than the
original date.


 


(iii)                               The
In Service Distribution Date may be cancelled, even after a change.  A cancellation of an In Service Distribution
Date shall cause the In Service Account associated with it to be merged into
the Retirement/Termination Account.


 


(iv)                              Making
an In Service Distribution Date change or cancellation in accordance with the
Plan is specific to the In Service Distribution to which it refers, and shall
not affect other In Service Distributions or the ability of the Participant to
make new In Service Distribution elections with respect to new deferral
contributions.


 


(d)                                 Any
portion of a deferral not credited to an In Service Distribution Account will
be credited to the Retirement/Termination Account.


 


(e)                                  The
Compensation Deferral Agreement shall also indicate the Participant’s election
of payment schedule for each In Service Distribution Date.  Permitted payment schedules for In Service
Distributions are a single lump sum or (assuming the In Service Distribution
Sub-Account Balance is at least $10,000) from two (2) to five (5) annual
installment payments.  A Participant
shall be permitted to change his or her payment schedule election for an
In Service Distribution at any time by filing a new Compensation Deferral
Agreement (or by following such procedures as are set by the Plan Administrator
regarding using the Participant website, when available), provided such
election is made at least thirteen (13) months prior to the In Service
Distribution Date.


 


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4.3                                 Company
Contributions and Vesting


 


(a)                                  Company
Matching Contributions.  The Committee
may, in its sole and absolute discretion make Company Matching Contributions to
some, all, or none of the Participants’ Retirement/Termination Accounts at the
end of each Plan Year.  In the event the
Committee elects to provide Matching Contributions, the Committee may establish
eligibility requirements that are prerequisite to receiving such Matching
Contributions.  Such requirements may be
changed from time to time by the Committee in its sole discretion.


 


(b)                                 Company
Discretionary Contributions.  The
Committee may, in its sole and absolute discretion, make Company Discretionary
Contributions to one, some, or all Participant(s) by crediting to said
Participants’ Retirement/Termination Sub-Accounts an amount determined in the
sole and absolute discretion of the Company. 
The Committee shall be under no obligation to make Company Discretionary
Contributions unless it so obligates itself under an employment agreement or
other agreement.  Company Discretionary
Contributions and Deemed Investment earnings thereon shall be subject to a
vesting schedule set forth in (d) hereinbelow.


 


(c)                                  Deemed
Investments shall be made in the same manner as for deferrals (Section 4.1
of the Plan) on the date the Company Matching Contribution and/or the Company
Discretionary Contribution is credited to the Participant’s
Retirement/Termination Sub-Account.


 


(d)                                 The
Company Contributions in (a) and (b), above, and Deemed Investment earnings
thereon, will be subject to a vesting schedule that is established by the
Committee with respect to each such Company Contribution.  Such vesting schedule may be changed
from time to time (with respect to new Company Contributions) by the Committee
in its sole and absolute discretion.  If
no vesting schedule is established by the Committee with respect to a
particular Company Contribution, such Company Contribution shall be subject to
the following vesting schedule:


 


	
  Calendar years since the date of
  crediting of the Company

  Contribution (each Company Contribution is treated separately for

  vesting purposes)

  	
   

  	
  Percent
  Vested

  	
   

  
	
  Less
  than 3

  	
   

  	
  0

  	
  %

  
	
  3 or
  more

  	
   

  	
  100

  	
  %

  
	
  Upon
  Retirement, a Participant’s death, termination of the Plan, or Change in
  Control

  	
   

  	
  100

  	
  %

  



 


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4.4                                 Allocation
Elections  and Valuation of Accounts


 


(a)                                  A
Participant shall elect Investment Options from a menu provided by the Plan
Administrator.  The initial election
shall be made on the Allocation Election form approved by the Plan
Administrator (or Allocation Election Screen on the Participant website
approved by the Plan Administrator) and shall specify the allocations among the
Investment Options elected.  A
Participant may make different Allocation Elections for each Account.  A Participant’s Account Balances shall be
valued as the sum of the value of all Deemed Investments minus any withdrawals
or distributions from such Account. 
Investment Options shall be utilized to determine the earnings
attributable to the Account.  Elections
of Investment Options do not represent actual ownership of, or any ownership
rights in or to, the securities or other investments to which the Investment
Options refer, nor is the Company in any way bound or directed to make actual
investments corresponding to Deemed Investments.


 


(b)                                 The
Committee, in its sole discretion, shall be permitted to add or remove
Investment Options provided that any such additions or removals of Investment
Options shall not be effective with respect to any period prior to the
effective date of such change.  Any
unallocated portion of a Account or any unallocated portion of new deferrals
shall be Deemed Invested in an Investment Option referring to a money market
based fund or sub-account.


 


(c)                                  A
Participant may make a new Allocation Election with respect to future deferrals
and/or current Account Balances, provided that such new Allocations Elections
shall be in increments of one percent (1%) of the Account Balance or deferrals
to which they refer.  New Allocation
Elections may be made on any business day, and will become effective on the
same business day or, in the case of Allocation Elections received after a
cut-off time established by the Plan Administrator, the following business day.


 


(d)                                 Notwithstanding
anything in this Section to the contrary, the Company shall have the sole
and exclusive authority to invest any or all amounts deferred in any manner,
regardless of any Allocation Elections by any Participant.  A Participant’s Allocation Election shall be
used solely for purposes of determining the value of such Participant’s Accounts
and the 


 


15

















 


amount of the corresponding liability of the Company
in accordance with this Plan.


 


4.5                                 Prohibition
Against Modifications to deferral elections.  A Participant may not modify or revoke a deferral election during
a Plan Year by changing the amount of the Compensation deferral except in the
case of severe financial hardship and then only with the approval of the Plan
Administrator which it may or may not give in its sole discretion.


 


ARTICLE V


DISTRIBUTIONS AND WITHDRAWALS


 


5.1         In Service
Distributions.


 


(a)                                  Subject
to the provisions of Section 5.5, each In Service Distribution shall be
paid in accordance with the payment schedule election made with respect
thereto, beginning as soon as administratively practicable following the In
Service Distribution Valuation Date.  In
the event a Participant has elected installment payments for an In Service
Distribution, the installment payments shall be determined as set forth in
Section 5.4 of the Plan.


 


(b)                                 Notwithstanding
a Participant’s election to receive an In Service Distribution, all In Service
Distribution Account Balances shall be distributable as part of a Retirement,
Death, Disability, or Termination Benefit if the triggering date for such Retirement,
Death, Disability, or Termination Benefit occurs prior to the completion of
payment(s) elected in connection with any In Service Distribution Date.


 


5.2                                 Retirement
Benefit Distribution.  Subject to
the provisions of Section 5.5, the Retirement benefit will be paid (or the
first payment will be made) in accordance with the Participant payment
schedule election as soon as administratively practicable following the
Termination Valuation Date.


 


5.3                                 Termination
Benefit Distribution.  The
Termination Benefit shall be paid as soon as administratively practicable
following the Termination Valuation Date.


 


5.4                                 Installment
Payments.  If the Participant has
elected installment payments for his or her Retirement Benefit distribution or
an In Service Distribution, annual cash payments will be made beginning as soon
as administratively practicable following the applicable Valuation Date
(Termination or In Service) or, in the event of a partial lump sum election,
following the first anniversary of the partial 


 


16

















 


lump sum payment made
following Retirement.  Such payments
shall continue annually on or about the anniversary of the previous installment
payment until the number of installment payments elected has been paid.  The installment payment amount shall be
determined annually as the result of a calculation, performed on the Annual
Valuation Date, where (i) is divided by (ii):


 


(i)                                     equals
the value of the applicable Account on the Annual Valuation Date; and


 


(ii)                                  equals
the remaining number of installment payments.


 


5.5                                 Small
Account Balance Lump Sum Payment.


 


In the event that a
Participant’s Retirement/Termination Account Balance is less than $25,000 or a
Participant’s In Service Distribution Account Balance is less than $10,000 on
the initial Termination or In Service Distribution Valuation Date, the In
Service Distribution or Retirement Benefit, as applicable, shall be paid in a
lump sum and any form of payment election to the contrary shall be null and
void.


 


5.6                                 Disability
Benefit.  In the event of
Disability, a Participant shall receive a benefit equal to the Participant’s
and paid as though it were a Termination Benefit.


 


5.7                                 Death
Benefit.  In the event of a
Participant’s death either before Termination of Employment or before complete
distribution of any In Service Distribution or Retirement Benefit, such
Participant’s Beneficiary, named on the most recently filed Beneficiary
Designation Form, shall be paid a Death Benefit in the amount of the remaining Deferred
Compensation Account Balance in a single lump sum as soon as practicable
following the end of the month in which the Participant’s death occurred.  The Valuation Date for purposes of
determining the Death Benefit shall be the last day of the month in which the
Participant’s death occurs.


 


5.8                                 Unforeseeable
Emergency.  A Participant may
request, in writing to the Plan Administrator, a withdrawal from his or her
Deferred Compensation Account if the Participant experiences an “unforeseeable
emergency”. An unforeseeable emergency is a severe financial hardship to the
participant resulting from a sudden and unexpected illness or accident of the
participant or of a dependent (as defined in section 152(a)) of the
participant, loss of the participant’s property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the participant, as defined in Reg.
1.457-2(h)(4).  The Plan Administrator,
in its sole discretion, shall determine whether a Participant has experienced
an unforeseeable emergency.  Withdrawals
of amounts because of an unforeseeable emergency are limited to 


 


17

















 


the extent reasonably
needed to satisfy the emergency need, which cannot be met with other resources
of the Participant.  The amount of such
unforeseeable emergency withdrawal shall be subtracted first from the vested
portion of the Participant’s Retirement/Termination Account until depleted and
then from the In Service Distribution Accounts (if any) beginning with the most
distant.  Values for purposes of
administering this Section shall be determined on the date the Plan
Administrator approves the amount of the unforeseeable emergency withdrawal, or
such other date determined by the Plan Administrator.


 


5.9                                 Voluntary
Withdrawal.  A Participant who is an
active employee may request, in writing to the Plan Administrator, to have up
to 100% of the vested portion of his or her Deferred Compensation Account
Balance at any time and for any reason, subject to a penalty of 10% of the
amount distributed. The penalty shall be forfeited to the Company.  There is a minimum withdrawal amount of
$5,000.  Deferral elections shall be
deemed revoked for the balance of the Plan Year in which such withdrawal
election is made and not permitted for the following Plan Year.  The amount of such voluntary withdrawal
shall be subtracted first from the vested portion of the Participant’s
Retirement/Termination Account until depleted and then from the In Service
Accounts (if any) beginning with the most distant.  Values for purposes of administering this Section shall be
determined on the date the Plan Administrator approves the amount of the
withdrawal, or such other date determined by the Plan Administrator.


 


5.10                           Change
in Control.  In the event a
Participant shall Retire within two (2) years following a Change in Control,
such Participant shall receive his or her Deferred Compensation Account Balance
in a lump sum paid as soon as administratively practicable following the
Valuation Date, which shall be the end of the month in which the Change in
Control occurs.  All payment
schedule elections to the contrary shall be ignored.  The foregoing notwithstanding,  a Participant may request that his or her
Retirement Benefit be paid following his or her then current payment
schedule election for a Retirement Benefit.  Such request must be received by the Plan Administrator no later
than thirty (30) days following Retirement, and may be granted or denied in the
sole discretion of the Committee.


 


5.11                           Court
Order.  In the event a Court of
competent jurisdiction orders a division of “Plan assets” or a distribution of
a Participant’s Account or portion thereof as part of a valid Judgment or Court
Order, the Plan Administrator shall be authorized to make such distribution to
the Participant or to such other recipient as is named in the Court Order in
the amount necessary to satisfy the Court Order.


 


18

















 


5.12                           Pro-rata
subtraction from Investment Options. 
In the event a distribution under this Article V (e.g. an
installment payment, hardship or voluntary withdrawal, etc.) is less than the
entire Account Balance and the Account is allocated over more than one Investment
Option, the distribution shall be subtracted from each Investment Option in a
pro-rata manner determined in the sole discretion of the Plan Administrator.


 


ARTICLE VI


ADMINISTRATION


 


6.1                                 Plan
Administration.  This Plan shall be
administered by the Plan Administrator, which shall have discretionary
authority to make, amend, interpret and enforce all appropriate rules and
regulations for the administration of this Plan and to utilize its discretion
to decide or resolve any and all questions, including but not limited to
eligibility for benefits and interpretations of this Plan and its terms, as may
arise in connection with the Plan. 
Claims for benefits shall be filed with the Plan Administrator and
resolved in accordance with the claims procedures in Article IX.


 


6.2                                 Withholding.  The Employer shall have the right to
withhold from any payment made under the Plan (or any amount deferred into the
Plan) any taxes required by law to be withheld in respect of such payment (or
deferral).


 


6.3                                 Indemnification.
 The Company shall indemnify and hold
harmless each employee, officer, director, agent or organization, to whom or to
which is delegated duties, responsibilities, and authority with respect to
administration of the Plan, against all claims, liabilities, fines and
penalties, and all expenses reasonably incurred by or imposed upon him or it
(including but not limited to reasonable attorney fees) which arise as a result
of his or its actions or failure to act in connection with the operation and
administration of the Plan to the extent lawfully allowable and to the extent
that such claim, liability, fine, penalty, or expense is not paid for by
liability insurance purchased or paid for by the Company.  Notwithstanding the foregoing, the Company
shall not indemnify any person or organization if his or its actions or failure
to act are due to gross negligence or willful misconduct or for any such amount
incurred through any settlement or compromise of any action unless the Company
consents in writing to such settlement or compromise.


 


6.4                                 Expenses.  The expenses of administering the Plan shall
be paid by the Company.


 


19

















 


6.5                                 Delegation
of Authority.  In the administration
of this Plan, the Plan Administrator may, from time to time, employ agents and
delegate to them such administrative duties as it sees fit, and may from time
to time consult with legal counsel who may be legal counsel to the Company.


 


6.6                                 Binding
Decisions or Actions.  The decision
or action of the Plan Administrator in respect of any question arising out of
or in connection with the administration, interpretation and application of the
Plan and the rules and regulations thereunder shall be final and conclusive and
binding upon all persons having any interest in the Plan.


 


ARTICLE VII


AMENDMENT
AND TERMINATION


 


7.1                                 Amendment
and Termination.  The Plan is
intended to be permanent, but the Committee may at any time modify, amend, or
terminate the Plan, provided that such modification, amendment or termination
shall not cancel, reduce, or otherwise adversely affect the amount of benefits
of any Participant accrued (and any form of payment elected) as of the date of
any such modification, amendment, or termination, without the consent of the
Participant.  Notwithstanding the
foregoing, the Committee shall be permitted upon Plan termination to instruct
the Plan Administrator to pay each Participant (without such Participant’s
consent) a lump sum in the amount of such Participant’s Account Balance as of
the date of such Plan termination.


 


7.2                                 Adverse
Income Tax Determination. 
Notwithstanding anything to the contrary in the Plan, if any Participant
receives a deficiency notice from the United States Internal Revenue Service
asserting constructive receipt of amounts payable under the Plan, or if
legislation is passed which causes current income taxation of deferred amounts,
Company contributions, and/or the investment earnings attributed thereto due to
any Participant withdrawal right or other Plan provision, the Committee, in its
sole discretion, may terminate the Plan or such Participant’s participation in
the Plan, and/or may declare null and void any Plan provision with respect to
affected Participants and/or may make distributions of part, or all, of a Participant’s
Deferred Compensation Account Balance in an amount equal to the amount(s) held
to be constructively received by the Participant.  In addition, it is intended that this Plan comply with all
provisions of the Internal Revenue Code and regulations and rulings in effect
from time to time regarding the permissible deferral of compensation and taxes
thereon, and it is understood that this Plan does so comply.  If the laws of the United States or of any
relevant state are amended or construed in such a way as 


 


20

















 


to make this Plan (or its
intended deferral of compensation and taxes) in whole or in part void, then the
Deferred Compensation Committee, in its sole discretion, may choose to
terminate the Plan or it may (to the extent it deems practicable) give effect
to the Plan in such a manner as it deems will best carry out the purposes and
intentions of this Plan.


 


ARTICLE VIII


INFORMAL FUNDING


 


8.1                                 General
Assets.  All benefits in respect of
a Participant under this Plan shall be paid directly from the general funds of
the Employer, or from a “rabbi trust” (a grantor trust with provisions
consistent with the model rabbi trust approved by the IRS in Rev. Proc. 92-64)
created by the Company and funded by the Employers for the purpose of
informally funding the Plan.  Other than
such rabbi trust, if created, no special or separate fund shall be established
and no other segregation of assets shall be made to assure payment. No
Participant, spouse or Beneficiary shall have any right, title or interest
whatever in or to any investments which an Employer may make to aid the
Employer in meeting its obligation hereunder. Nothing contained in this Plan,
and no action taken pursuant to its provisions, shall create or be construed to
create a trust of any kind, or a fiduciary relationship, between the Employer
or any if its subsidiaries or affiliated companies and any Employee, spouse, or
Beneficiary. To the extent that any person acquires a right to receive payments
from the Employer hereunder, such rights are no greater than the right of an
unsecured general creditor of the Employer.


 


8.2                                 Rabbi
Trust.  The Company may, in its sole
discretion, establish a rabbi trust as a vehicle for accumulating assets to pay
or partially pay the promised benefit(s) under the Plan, but the Company shall
be under no obligation to establish or make any contributions to any such trust
or any other informal funding vehicle.


 


ARTICLE IX


CLAIMS


 


9.1                                 Filing
a Claim.  Any controversy or claim
arising out of or relating to the Plan shall be filed with the Plan
Administrator which shall make all determinations concerning such claim.  Any decision by the Plan Administrator
denying such claim shall be in writing and shall be delivered to the
Participant or Beneficiary filing the claim (“Claimant”).  Such decision shall set forth the reasons
for denial


 


21

















 


in plain language.  Pertinent provisions of the Plan document
shall be cited and, where appropriate, an explanation as to how the Claimant
can perfect the claim will be provided, including a description of any
additional material or information necessary to complete the claim, and an
explanation of why such material or information is necessary.  The claim denial also shall include an
explanation of the claims review procedures and the time limits applicable to
such procedures, including a statement of the Claimant’s right to bring a civil
action under Section 502(a) of ERISA following an adverse decision on
review.  This notice of denial of
benefits will be provided within 90 days of the Plan Administrator’s receipt of
the Claimant’s claim for benefits.  If
the Plan Administrator fails to notify the Claimant of its decision regarding
the Claimant’s claim, the claim shall be considered denied.  If the Plan Administrator determines that it
needs additional time to review the claim, the Plan Administrator will provide
the Claimant with a notice of the extension before the end of the initial
90-day period.  The extension will not
be more than 90 days from the end of the initial 90-day period and the notice
of extension will explain the special circumstances that require the extension
and the date by which the Plan Administrator expects to make a decision.


 


9.2                                 Appeal.     A Claimant who has been completely or
partially denied a benefit shall be entitled to appeal this denial of his claim
by filing a written appeal with the Plan Administrator no later than sixty (60)
days after: (a) receipt of the written notification of such claim denial, or
(b) the lapse of ninety (90) days without an announced decision notice of
extension.  A Claimant who timely
requests a review of his or her denied claim (or his or her authorized representative)
may review, upon request and free of charge, copies of all documents, records
and other information relevant to the denial and may submit written comments,
documents, records and other information relevant to the claim to the Plan
Administrator.  The Plan Administrator
may, in its sole discretion and if it deems appropriate or necessary, decide to
hold a hearing with respect to the claim appeal.  Following its review of any additional information submitted by
the Claimant, the Plan Administrator shall render a decision on its review of
the denied claim in the following manner:


 


(a)                                  The
Plan Administrator shall make its decision regarding the merits of the denied
claim within 60 days following His receipt of the appeal (or within 120 days
after such receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim).  It shall deliver the decision to the Claimant in writing.  If an extension of time for reviewing the
appeal is required because of special circumstances, written notice of the extension
shall be furnished to the Claimant prior to the commencement of the
extension.   The notice will indicate
the special 


 


22

















 


circumstances requiring
the extension of time and the date by which the Plan Administrator expects to
render the determination on review.


 


(b)                                 The
review will take into account comments, documents, records and other
information submitted by the Claimant relating to the claim without regard to
whether such information was submitted or considered in the initial benefit
determination.


 


(c)                                  The
decision on review shall set forth a specific reason for the decision, and
shall cite specific references to the pertinent Plan provisions on which the
decision is based.


 


(d)                                 The
decision on review will include a statement that the Claimant is entitled to
receive, upon request and free of charge, reasonable access to and copies of
all documents, records, or other information relevant to the Claimant’s claim
for benefits.


 


(e)                                  The
decision on review will include a statement describing any voluntary appeal
procedures offered by the plan and a statement of the Claimant’s right to bring
an action under Section 502(a) of ERISA.


 


(f)                                    A
Claimant may not bring any legal action relating to a claim for benefits under
the Plan unless and until the Claimant has followed the claims procedures under
the Plan and exhausted his or her administrative remedies under such claims
procedures.


 


ARTICLE X


GENERAL CONDITIONS


 


10.1                           Anti-assignment
Rule.  No interest of any
Participant, spouse or Beneficiary under this Plan and no benefit payable
hereunder shall be assigned as security for a loan, and any such purported
assignment shall be null, void and of no effect, nor shall any such interest or
any such benefit be subject in any manner, either voluntarily or involuntarily,
to anticipation, sale, transfer, assignment or encumbrance by or through any
Participant, spouse or Beneficiary.


 


10.2                           No
Legal or Equitable Rights or Interest. 
No Participant or other person shall have any legal or equitable rights
or interest in this Plan that are not expressly granted in this Plan.
Participation in this Plan does not give any person any right to be retained in
the service of the Company or any of its subsidiaries or 


 


23

















 


affiliated companies. The
right and power of the Company (or any of its subsidiaries or affiliated
companies that is the Employee’s employer) to dismiss or discharge an Employee
is expressly reserved.


 


10.3                           No
Employment Contract.  Nothing
contained herein shall be construed to constitute a contract of employment
between an Employee and the Company or any of its subsidiaries or affiliated
companies.


 


10.4                           Headings.  The headings of Sections are included solely
for convenience of reference, and if there is any conflict between such
headings and the text of this Plan, the text shall control.


 


10.5                           Invalid
or Unenforceable Provisions.  If any
provision of this Plan shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions hereof and the Plan
Administrator may elect in its sole discretion to construe such invalid or
unenforceable provisions in a manner that conforms to applicable law or as if
such provisions, to the extent invalid or unenforceable, had not been included.


 


10.6                           Governing
Law.  To the extent not preempted by
ERISA, the laws of the State of Connecticut shall govern the construction and
administration of the Plan.


 


IN WITNESS WHEREOF, the Company has caused
this Plan to be adopted, effective as
of                                                .


 


 


	
   

  	
  ASBURY AUTOMOTIVE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ATTEST:

  	
   

  
						



 


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