EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the _____ day
of October, 2001, to be effective as of the ___ day of __________, 2001 (the
"Effective Date"), by and between XXX X. XXXXXXX, XX ("Employee") and ALLIED
AUTOMOTIVE GROUP, INC., a Georgia corporation ("Employer").
WITNESSETH:
WHEREAS, Employer, through the Affiliates (as hereinafter defined), is
engaged in the transportation of automobiles and light trucks from the
manufacturer to retailers and others, including nontraditional car haulers
involved in the vehicle distribution process (the "Business");
WHEREAS, Employee has management skills of which Employer desires to
avail itself; and
WHEREAS, Employer and Employee deem it to their respective best
interest to outline the duties and obligations, each to the other, by executing
this Employment Agreement,
NOW, THEREFORE, for and in consideration of the covenants and
conditions hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Employer and Employee
hereby mutually agree as follows:
1. DEFINITIONS.
(a) "Affiliate" means Allied Holdings, Inc., Allied
Automotive Group, Inc., Allied Systems (Canada)
Company, Allied Systems, Ltd. (L.P.), Transport
Support, Inc., X. X. Xxxxxxx Driveaway Co., Inc.,
Allied Freight Brokers, Inc. or QAT, Inc.
(b) "Base Salary" means the annual salary payable, and as
adjusted, pursuant to Paragraph 4.
(c) "Cause" means (i) the commission by Employee of an
act of fraud, misappropriation, dishonesty,
embezzlement, gross negligence, or willful misconduct
or unethical conduct in connection with Employee's
employment hereunder; (ii) criminal conduct of
Employee which results in a felony conviction of such
Employee, or the Employee's offering a plea of nolo
contendre to a felony; (iii) Employee's continuing
and/or willful failure to perform Employee's duties
or obligations for Employer as outlined in this
Agreement, or Employee's breach of this Agreement;
(iv) Employee's
prolonged absence, without the consent of Employer,
other than as a result of Employee's Disability or
permitted absence or vacation, which is not cured
within ten (10) days after written notice from
Employer's Board of Directors thereof; (v) engaging
in activities prohibited by Paragraphs 11, 12, 13, 14
or 15 hereof; (vi) engaging in any activity which
could constitute grounds for termination for cause by
Employer or any of its subsidiaries or affiliates; or
(vii) Employee engaging in conduct that is materially
detrimental to the reputation, character or standing
of Employer.
(d) "Disability", with respect to Employee, shall
conclusively be deemed to have occurred (i) if
Employee shall be receiving payments pursuant to a
policy of long-term disability income insurance; or
(ii) if Employee shall have no disability income
coverage then in force, then if any insurance company
insuring Employee's life shall agree to waive the
premiums due on such policy pursuant to a disability
waiver of premium provision in the contract of life
insurance; or (iii) if Employee shall have no
disability waiver of premium provision in any
contract of life insurance, then if Employee shall be
receiving disability benefits from or through the
Social Security Administration; provided, however,
that in the event Employee's disability shall,
otherwise and in good faith, come into question (and,
for purposes of this provision, "disability" shall
mean the permanent and continuous inability of
Employee to perform substantially all of the duties
being performed immediately prior to Employee's
disability coming into question) for a period of not
less than one hundred twenty (120) consecutive days,
and a dispute shall arise with respect thereto, then
Employee (or Employee's personal representatives)
shall appoint a medical doctor, Employer shall
appoint a medical doctor, and said two (2) doctors
shall, in turn, appoint a third party medical doctor
who shall examine Employee to determine the question
of disability and whose determination shall be
binding upon all parties to this Agreement. All such
medical doctors shall be duly licensed in the State
of Georgia.
(e) "Restricted Period" means the period commencing as of
the date hereof and ending on that date twelve (12)
months after the termination of Employee's employment
with Employer for any reason, whether voluntary or
involuntary.
2. TERM. Subject to the provisions hereinafter set forth, the
term of this Agreement shall commence as of the Effective Date and shall expire
one year after the Effective Date (the "Initial Term") and shall extend for
additional terms of one (1) year unless either party gives written notice of
termination not less than
2
sixty (60) days prior to the end of a Term. As used herein, "Term" shall mean
the then current Initial Term or Renewal Term, as the case may be.
3. DUTIES.
(a) Employee shall, during the Term, serve as Executive
Vice President Performance Management of Employer
having duties, responsibilities, powers and authority
which are consistent with senior management positions
of like designation generally, but subject to the
direction of the President and Chief Executive
Officer of Allied Holdings, Inc. or his designee. The
Employee shall perform such executive, managerial and
administrative duties as the President and Chief
Executive Officer of Allied Holdings, Inc. may, from
time to time, reasonably request.
(b) During the Term, Employee shall devote substantially
all of Employee's business time, energy and skill to
performing the duties of Employee's employment
(vacations as provided hereunder and reasonable
absences because of illness excepted), shall
faithfully and industriously perform such duties, and
shall use Employee's best efforts to follow and
implement all management policies and decisions of
Employer. Employee shall not become personally
involved in the management or operations of any other
company, partnership, proprietorship or other entity,
other than any Affiliate, without the prior written
consent of Employer; provided, however, that so long
as it does not interfere with Employee's employment
hereunder, Employee may (i) serve as a director,
officer or partner in a company that does not compete
with the Business of Employer and the Affiliates so
long as the aggregate amount of time spent by
Employee in all such capacities shall not exceed
twenty (20) hours per month, and (ii) serve as an
officer or director of, or otherwise participate in,
educational, welfare, social, religious, civic, trade
and industry-related organizations.
4. BASE SALARY. For and in consideration of the services to be
rendered by Employee pursuant to this Agreement, Employer shall pay to Employee,
for each year during the Term, an annual salary of One Hundred Seventy-six
Thousand, Three Hundred Eighty-four and Sixteen Cents ($176,384.16) (the "Base
Salary"), in installments in accordance with Employer's payroll practices.
Employee's salary shall be reviewed by the Board of Directors of Employer
annually.
5. BONUS COMPENSATION.
(a) Employee shall be eligible to participate in
Employer's bonus plan which will allow annual bonus
target in an amount not to exceed 50% of Employee's
Base Salary.
3
(b) Employee shall be entitled to participate in all long
term incentive plans, including the amended and
restated long term incentive plan and similar plans
as are now or hereafter provided by Employer or its
Affiliates in accordance with the terms of such plans
and consistent with persons serving in a senior
management capacity.
6. OTHER BENEFITS. During the Term, Employer shall provide the
following benefits to Employee:
(a) Employee and Employee's immediate family shall be
entitled to participate in all group benefit
programs, including, without limitation, medical and
hospitalization benefit programs, dental care, life
insurance or other group benefit plans of Employer as
are now or hereafter provided by Employer or any
Affiliate, in each case in accordance with the terms
and conditions of each such plan;
(b) Employer shall provide Employee with the use of an
automobile, which shall be comparable to automobiles
Employer provides to persons serving in the capacity
of Executive Vice President of Employer, or, in the
alternative, at the election of Employer, Employer
shall provide a monthly car allowance to Employee in
the amount of Seven Hundred Dollars ($700.00) per
month; and
(c) Employee shall be reimbursed for actual, reasonable,
ordinary and necessary business expenses incurred in
the performance of Employee's duties hereunder.
Employee shall be reimbursed for such expenses upon
presentation and approval of expense statements or
written vouchers or other supporting documents as may
be reasonably requested in advance by Employer and in
accordance with Employer's practices in effect from
time to time.
7. VACATION. Employee shall receive no fewer than four (4) weeks
paid vacation for each year during the Term. Scheduling of vacation shall be
subject to the prior approval of Employer (which approval shall not be
unreasonably withheld). Vacation time shall not accrue, and in the event any
vacation time for any year shall not be used by Employee prior to the end of
such year or prior to termination of employment, it shall be forfeited.
8. TERMINATION. Anything herein to the contrary notwithstanding,
Employee's employment hereunder shall terminate upon the first to occur of any
of the following events:
(a) Employee's Disability; or
4
(b) Employee's death; or
(c) Employer and Employee immediately terminating
Employee's employment without Cause hereunder prior
to expiration of the Term; or
(d) Employee being terminated for Cause.
9. SEVERANCE BENEFITS.
(a) In the event Employee's employment is terminated by
Employer without Cause pursuant to Paragraph 8(c)
hereunder, or because Employer elects not to renew
this Agreement beyond the Initial Term, Employee
shall be entitled to severance benefits in an amount
equal to the greater of (i) fifty-two (52) weeks of
Base Salary, or (ii) the severance amount due to
Employee in accordance with the severance plan or
guidelines of Employer in effect on the date of
termination.
(b) In the event Employee's employment is terminated by
Employer without cause pursuant to 8(c) or because
Employer elects not to renew, Employee shall be
entitled to continue medical and dental coverage as
in effect on the last day of employment. Employer
shall provide coverage until the last day severance
payments are due under this Agreement by paying
Employee's COBRA premiums for Employee and covered
dependents (if any). At the end of Employee's
Severance Period, Employee (and Employee's covered
dependents, if any) may elect continuation of
insurance coverage for the remainder of the 18-month
COBRA period by paying the COBRA premium rate.
Continuation coverage will terminate in the event
Employee becomes covered under any other group health
plan (as an employee or otherwise), unless the new
group health plan contains any exclusions or
limitations with respect to any pre-existing
condition Employee or covered dependent(s) may have.
Employee must notify the Employer promptly should
Employee become covered under any other plan.
(c) If employment is terminated for any other reason than
by Employer without Cause, no severance benefits
shall be due to Employee;
(d) Severance payments shall include the car allowance
provided for under this Agreement in addition to the
benefits listed above;
(e) Employer will provide Employee with a six-month
individual program of professional outplacement
services.
5
(f) Notwithstanding the foregoing, the severance payments
due from the Employer to the Employee pursuant to
this Agreement including the benefits under section
9(a) and section 9(b) shall be mitigated and reduced
by the amount of any consideration paid to Employee
by any other person or entity for services rendered
following the date of termination of employment,
regardless of how such compensation is characterized,
including, but not limited to, consulting fees or
other fees for any services rendered by Employee. The
Employee must provide the Employer a copy of any
employment agreement, offer letter, or consulting
agreement disclosing total compensation to be paid to
the Employee for services rendered following the
termination date. Subject to the remaining terms of
this Agreement, Employer will pay Employee at least
25% of the amount to be paid under this Paragraph 9
notwithstanding any such mitigation. In the event
Employee fails to notify Employer that he has
accepted employment or is otherwise performing
services after the date of termination of employment
with any person or entity, or that he has entered
into any form of agreement or arrangement, including,
but not limited to, a consulting arrangement whereby
Employee is paid for Employee's services, then all
severance benefits provided under this Agreement will
cease immediately and all liabilities and obligations
of Employer hereunder shall terminate.
Notwithstanding anything in the Agreement to the
contrary, in the event Employee obtains a full-time
position with the Employer or any of its subsidiaries
or affiliates after the execution of this Agreement
but prior to the last day on which severance payments
are due under this Agreement, Employee understands
and agrees that all severance payments will cease
immediately and that all liabilities and obligations
of the Employer hereunder shall terminate.
10. CONDITIONS TO BENEFITS. Anything in this Agreement to the
contrary notwithstanding:
(a) To receive the benefits enumerated in Paragraph 9,
Employee shall execute and agree to be bound by a
release agreement substantially in the form attached
to this Agreement as Exhibit A; and
(b) Employee's right to receive any of the benefits
provided for in Paragraph 9 or otherwise in this
Agreement following termination of employment shall
immediately cease and be of no further force or
effect if Employee violates any of the covenants
contained in Paragraphs 11, 12, 13, 14 or 15.
6
11. COVENANT NOT-TO-SOLICIT. Employer and Employee acknowledge
that, during Employee's employment, Employer will spend considerable amounts of
time, effort and resources in providing Employee with knowledge relating to the
business affairs of Employer and the Affiliates, including Employer's and the
Affiliates' trade secrets, proprietary information and other information
concerning Employer's and the Affiliates' financing sources, finances, customer
lists, customer records, prospective customers, staff, contemplated acquisitions
(whether of business or assets), ideas, methods, marketing investigations,
surveys, research, customers' records and any other information relating to
Employer's and the Affiliates' Business.
To protect Employer from Employee's solicitation of business from
customers during the Restricted Period, Employee agrees that, subject to
Paragraph 17 hereof, he shall not, directly or indirectly, for any person
(including Employee himself), corporation, firm, partnership, proprietorship or
other entity, other than Employer or an Affiliate, engaged in the Business,
solicit transportation, logistics or other business of the type provided by
Employer for any customer with whom the Employee had material contact during the
twelve (12) month period immediately preceding the termination of Employee's
employment. Material contact includes personal contact with customers, the
supervision of the efforts of others who have personal contact with the
customers, and the receipt of confidential information of customers of Employer.
This Paragraph 11 shall, except as otherwise provided in this Agreement, survive
the termination of this Agreement.
12. COVENANT NOT-TO-DISCLOSE. Employee agrees that during
employment with Employer and for a period of three (3) years following the
cessation of that employment for any reason, Employee shall not directly or
indirectly divulge or make use of any Confidential Information or Trade Secrets
(so long as the information remains a Trade Secret or remains confidential)
without prior written consent of Employer. Employee further agrees that if
Employee is questioned about information subject to this agreement by anyone not
authorized to receive such information, Employee will promptly notify Employee's
supervisor(s) or an officer of Employer. This Agreement does not limit the
remedies available under common or statutory law, which may impose longer duties
of non-disclosure. For purposes of this Agreement, the following definition
shall apply:
"Confidential Information" means information about Employer and its
Employees, Customers and/or Suppliers which is not generally known
outside of Employer, which employee learns of in connection with
employee's employment with Employer, and which would be useful to
7
competitors of Employer. Confidential Information includes, but is not
limited to: (1) business and employment policies, marketing methods and
the targets of those methods, finances, business plans, promotional
materials and price lists; (2) the terms upon which Employer obtains
products or services from its vendors and sells them to customers; (3)
the nature, origin, composition and development of Employer's products;
(4) the manner in which Employer provides products and services to its
customers.
13. COVENANT NOT-TO-INDUCE. Employee covenants and agrees that
during the Restricted Period, he will not, directly or indirectly, on Employee's
own behalf or in the service or on behalf of others, solicit, induce or attempt
to solicit or induce an employee or other personnel of Employer and the
Affiliates to terminate employment with such party. This Paragraph 13 shall,
except as otherwise provided in this Agreement, survive the termination of this
Agreement.
14. COVENANT OF NON-DISPARAGEMENT AND COOPERATION. Employee agrees
that he shall not, at any time during or following the Term, make any remarks
disparaging the conduct or character of Employer or any of its current or former
Affiliates, agents, employees, officers, directors, shareholders, successors or
assigns (in the aggregate, such persons and entities are referred to herein as
the "Protected Persons"); provided, however, that during the Term, Employer
acknowledges and agrees that Employee may be required from time to time to make
such remarks about Protected Persons for legitimate business purposes and if
consistent with the discharge of Employee's duties hereunder. In addition,
following termination of Employee's employment hereunder, Employee agrees to
reasonably cooperate with Employer, at no extra cost, in any litigation or
administrative proceedings (e.g., EEOC charges) involving any matters with which
Employee was involved during Employee's employment with Employer. Employer shall
reimburse Employee for travel and other related expenses approved by Employer
incurred in providing such assistance. This Section 14 shall survive the
termination of this Agreement.
15. COVENANT NOT TO COMPETE. Employer and Employee acknowledge
that, by virtue of Employee's responsibilities and authority, he will, during
the course of Employee's employment, be instrumental in developing, and will
receive, highly confidential information concerning Employer and the Affiliates,
their services, their trade secrets, their proprietary information, and other
information concerning the business of Employer and the Affiliates, much of
which is unavailable to persons of lesser responsibility and authority. Employee
further acknowledges that the ability of such information to benefit a
competitor or potential competitor of Employer shall cause irreparable harm,
damage and loss to Employer and the Affiliates. To protect Employer and the
Affiliates from Employee's using or exploiting Employee's information, Employee
agrees that he shall not, for a period of twelve (12) months from the date of
termination of this Agreement for any reason, perform substantially similar job
duties or functions as those performed for Employer under this Agreement for
8
any entity engaged in the Business in the 48 states of the continental United
States of America (the "Restricted Territory"). This Section 15 shall survive
termination of this Agreement.
16. SPECIFIC ENFORCEMENT. Employer and Employee expressly agree
that a violation of the covenants contained in Paragraphs 11, 12, 13, 14 and 15
hereof, or any provision thereof, shall cause irreparable injury to Employer and
that, accordingly, Employer shall be entitled, in addition to any other rights
and remedies it may have at law or in equity, to an injunction enjoining and
restraining Employee from doing or continuing to do any such act and any other
violation or threatened violation of said Paragraphs 11, 12, 13, 14 and 15
hereof.
17. SEVERABILITY. In the event any provision of this Agreement
shall be found to be void, the remaining provisions of this Agreement shall
nevertheless be binding with the same effect as though the void part were
deleted; provided, however, if Paragraphs 11, 12, 13, 14 and 15 shall be
declared invalid, in whole or in part, Employee shall execute, as soon as
possible, a supplemental agreement with Employer, granting Employer, to the
extent legally possible, the protection afforded by said Paragraphs. It is
expressly understood and agreed by the parties hereto that Employer shall not be
barred from enforcing the restrictive covenants contained in each of Paragraphs
11, 12, 13, 14 and 15 as each are separate and distinct, so that the invalidity
of any one or more of said covenants shall not affect the enforceability and
validity of the other covenants.
18. INCOME TAX WITHHOLDING. Employer or any other payor may
withhold from any compensation or benefits payable under this Agreement such
Federal, State, City or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
19. WAIVER. The waiver of a breach of any term of this Agreement
by any of the parties hereto shall not operate or be construed as a waiver by
such party of the breach of any other term of this Agreement or as a waiver of a
subsequent breach of the same term of this Agreement.
20. RIGHTS AND LIABILITIES UPON NOTICE OF TERMINATION. As soon as
notice of termination of this Agreement is given, Employee shall immediately
cease contact with all customers of Employer and shall forthwith surrender to
Employer all customer lists, documents and other property of Employer then in
Employee's possession, compliance with which shall not be deemed to be a breach
of this Agreement by Employee. Pending the surrender of all such customer lists,
documents and other property to Employer, Employer may hold in abeyance any
payments due Employee pursuant to this Agreement.
21. ASSIGNMENT.
9
(a) Employee shall not assign, transfer or convey this
Agreement, or in any way encumber the compensation or
other benefits payable to him hereunder, except with
the prior written consent of Employer or upon
Employee's death.
(b) The covenants, terms and provisions set forth herein
shall be binding upon and shall inure to the benefit
of, and be enforceable by, Employer and its
successors and assigns; provided, Employer shall
require any successor (whether direct or indirect, by
purchase, merger, reorganization, consolidation,
acquisition of property or stock, liquidation or
otherwise) to all or a substantial portion of its
assets, by agreement in form and substance reasonably
satisfactory to Employee, expressly to assume and
agree to perform this Agreement in the same manner
and to the same extent that Employer would be
required to perform this Agreement if no such
succession had taken place. Regardless of whether
such an agreement is executed, this Agreement shall
be binding upon any successor of Employer in
accordance with the operation of law, and such
successor shall be deemed the "Employer" for purposes
of this Agreement.
22. NOTICES. All notices required herein shall be in writing and
shall be deemed to have been given when delivered personally or five (5) days
after the date on which such notice is deposited in the U.S. Mail, certified or
registered, postage prepaid, return receipt requested, addressed as follows, to
wit:
If to Employer at:
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, General Counsel
If to Employee at:
-----------------------------
-----------------------------
-----------------------------
or at such other addresses as may, from time to time, be furnished to Employer
by Employee, or by Employer to Employee on the terms of this Paragraph.
23. BINDING EFFECT. This Agreement shall be binding on the parties
hereto and on their respective heirs, administrators, executors, successors and
permitted assigns.
10
24. ENFORCEABILITY. This Agreement contains the entire
understanding of the parties and may be altered, amended or modified only by a
writing executed by both of the parties hereto. This Agreement supersedes all
prior agreements and understandings by and between Employer and Employee
relating to Employee's employment.
25. APPLICABLE LAW. This Agreement and the rights and liabilities
of the parties hereto shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Georgia.
26. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall constitute but a single document.
IN WITNESS WHEREOF, Employee has hereunder set Employee's hand and
seal, and Employer has caused this Agreement to be executed and delivered by its
duly authorized officers, all as of the day and year first above written.
(SEAL)
----------------------------- --------------------------
WITNESS XXX X. XXXXXXX, XX
ATTEST: ALLIED AUTOMOTIVE GROUP, INC.
By: By:
-------------------------- -----------------------------
Its Secretary Its
-------- --------------------------
[CORPORATE SEAL]
11
