EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 22nd day
of May, 2000, by and between XXXX XXXXX ("Employee"), AXIS GROUP, INC., a
Georgia corporation ("Employer"), and ALLIED HOLDINGS, INC., a Georgia
corporation ("Allied").
WITNESSETH
WHEREAS, Employer, through the Affiliates (as hereinafter defined), is
engaged, within and without the United States, in inter alia, (i) the business
of transporting automobiles and light trucks from the manufacturer to retailers
and related activities (the "Transportation Business"); and (ii) the logistics
business in connection with automobiles and light trucks (the "Logistics
Business") (hereinafter the Transportation Business and the Logistics Business
are sometimes referred to, individually, as a "Business" and, collectively, as
the "Businesses"); and
WHEREAS, Employee has a number of years of experience in the Logistics
Business and in addition to having management skills of which Employer desires
to avail itself, Employee has established numerous contacts and relationships
with customers, potential customers and suppliers of Employer and the
Affiliates, which contacts and relationships are of great value to Employer;
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,
Employee and Allied hereby mutually agree as follows:
1. DEFINITIONS.
(a) "Affiliate" means any corporation, partnership or
other entity of which Employer or Allied owns at
least eighty percent (80%) of the outstanding equity
and voting rights directly or indirectly through any
other corporation, partnership or other entity.
(b) "Base Salary" means the annual salary payable
pursuant to Paragraph 4(a) hereof as adjusted, from
time to time, by Employer.
(c) "Cause" means (i) the commission by Employee of an
act constituting a felony and Employee's conviction
thereof; (ii) Employee's prolonged absence, without
the consent of Employer, other than as a result of
Employee's Disability or permitted absence or
vacation; (iii) conduct of Employee which amounts to
fraud, dishonesty, gross or willful neglect of
duties; or (iv) engaging in activities prohibited by
Paragraphs 13, 14 or 15 hereof.
(d) "Disability" shall conclusively be deemed to have
occurred with respect to Employee (i) if Employee
shall be receiving payments pursuant to a policy of
long-term disability income insurance; (ii) if
Employee shall have no long-
term disability income coverage then in force and
any insurance company insuring Employee's life shall
agree to waive the premiums due on such policy
pursuant to a long-term disability waiver of premium
provision in the contract of life insurance; or
(iii) if Employee shall have no long-term disability
waiver of premium provision in any contract of life
insurance, then if Employee shall be receiving
long-term 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 proviso, "disability"
shall mean the permanent and continuous inability of
Employee to perform substantially all of the duties
being performed immediately prior to his disability
coming into question), and a dispute shall arise
with respect thereto, then Employee (or his 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.
(e) "Restricted Period" means the period commencing as
of the date hereof and ending on that date one (1)
year after the termination of Employee's employment
with Employer for any reason, whether voluntary or
involuntary.
(f) "Term" means the Initial Term and any Renewal Term
(each as defined in Paragraph 2 hereof); provided,
however, that, in the event Employee's employment
shall terminate by reason of the applicability of
Paragraph 8 hereof then, in such event, the "Term"
shall end upon the termination of Employee's
employment.
2. TERM. Subject to the provisions hereinafter set forth, the
Term of this Agreement shall commence as of the date hereof and shall end on
December 31, 2001 (the "Initial Term"). Upon the expiration of the Initial
Term, and on the expiration of each successive Renewal Term (as hereinafter
defined), Employee's employment shall be automatically renewed for an
additional term of one (1) years (the "Renewal Term(s)"), unless written
notification of termination is given by either party to the other party not
less than three (3) months prior to the expiration of the Initial Term or, as
the case may be, the then-current Renewal Term.
3. DUTIES.
(a) Employee shall, during the Term, serve as President
of Employer. Employee's principal duties shall be to
perform such executive, managerial and
administrative duties as the Chairman and Board of
Directors of Employer may, from time to time,
reasonably request as are consistent with the
position of President.
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(b) Subject to the preceding subparagraph, during the
Term, Employee shall devote substantially all of his
time, energy and skill to performing the duties of
his employment (vacations as provided hereunder and
reasonable absences because of illness excepted),
shall faithfully and industriously perform such
duties, and shall use his 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, with Employer's
consent, (1) 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 (2) serve as an officer or director
of, or otherwise participate in, educational,
welfare, social, religious, civic, trade and
industry-related organizations.
4. BASE SALARY.
(a) 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 Two Hundred Fifty
Thousand Dollars ($250,000.00), payable in equal
semi-monthly installments in accordance with
Employer's payroll practices. Employee's salary
shall be reviewed by the Board of Directors of
Employer annually and, in the sole discretion of the
Board of Directors, may be increased, but not
decreased.
5. BONUS COMPENSATION. Employee shall, with respect to each
calendar year of Employer ending during the Term, be entitled to participate in
the Allied Holdings, Inc. EVA Based Incentive Plan, as the same may be from
time to time amended and in effect (the "EVA Plan"). The Employee's Target
Bonus for purposes of the EVA Plan shall be such percentage of Employee's Base
Salary as shall, from time to time, be determined by Employer. Employee's
actual bonus shall be calculated in accordance with the terms of the EVA Plan.
Employee shall be provided with a copy of the EVA Plan within thirty (30) days
of execution of this Agreement.
6. OTHER BENEFITS. During the Term, Employer shall provide the
following benefits to Employee:
(a) Employee shall be entitled to participate in all
group medical and hospitalization benefit programs,
dental care, sick leave, life insurance or other
benefit plans for highly compensated employees of
Employer or any Affiliate 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 and benefit package.
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(b) Employee shall be entitled to participate in all
long term incentive plans, stock option plans and
other similar plans for highly compensated employees
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.
(c) Employee shall be provided with the use of an
automobile, which shall be comparable to other
automobiles Allied provides to persons serving in
the capacity of President of an Allied subsidiary,
and which shall be chosen by Employee from a list of
automobiles Allied typically makes available to its
Presidents of its subsidiaries and Employer shall
pay for the cost of all insurance, ad valorem taxes
and tag charges for such automobile and all
operating and maintenance charges for such
automobile. In addition, Employee shall be entitled
to an automobile allowance for his spouse comparable
to the spousal allowance Allied provides to persons
serving in the capacity of President of a
subsidiary, as determined from time to time by the
Board of Directors of Allied.
(d) Employee shall be provided with the use of a
cellular telephone, at no cost to Employee.
(e) Employer shall reimburse Employee for dues paid by
Employee for membership in such professional
organizations and eating clubs as shall, from time
to time, be deemed appropriate and necessary by
Employer.
(f) Employee shall, at all times, have available to him
an expense account, including the use of a corporate
American Express card, to defray ordinary and
necessary business expenses incurred in the
performance of his 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, which
approval shall not be unreasonably withheld or
delayed.
The benefits described in subparagraph (a) of this Paragraph shall not
be construed to require Employer to establish any such plans or programs or to
prevent Employer from modifying or terminating any such plans or programs, and
no such action or failure thereof shall affect this Agreement; provided,
however, that in the event of any reduction in the group medical and
hospitalization benefits in place as of the date hereof, the salary payable to
Employee shall be increased, as of the effective date of such reduction, by
that amount necessary to enable Employee to supplement the benefits provided by
Employer to maintain the level of benefits currently provided to him by it.
7. VACATION. Employee shall receive no fewer than three (3)
weeks of 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
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in the event Employee prior to the end of any year shall not use all of his
vacation time for such year, such vacation time 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;
(b) Employee's death;
(c) Employee's materially breaching this Agreement by
the non-performance or non-observance of any
material term or condition of this Agreement, which
breach shall not be corrected within forty-five (45)
days after receipt of written notice of same from
Employer;
(d) Employer's sending Employee written notice
terminating his employment hereunder prior to the
expiration of the Initial Term or any Renewal Term
in accordance with Paragraph 2 hereof;
(e) Employee's voluntarily terminating his employment
hereunder prior to the expiration of the Initial
Term or any Renewal Term; or
(f) Employee's being terminated for Cause.
9. TERMINATION PAYMENT. Subject to the provisions of Paragraph
12 hereof, in the event
(a) Employee's employment shall terminate pursuant to
Paragraph 8(a) (Disability) or Paragraph 8(b)
(death) hereof; or
(b) Employee shall terminate his employment as a result
of
(i) any failure to elect or reelect or to
appoint or reappoint Employee to the
position of President of Employer unless
agreed to by Employee;
(ii) any material change by Employer in
Employee's function, duties,
responsibility, importance, or scope from
the position and attributes thereof
described in Paragraph 3 hereof unless
agreed to by Employee, or any change in
location of the principal offices of
Employer outside the metropolitan Atlanta,
Georgia, area, or any requirement that
Employee perform substantially all of his
duties outside the metropolitan Atlanta,
Georgia, area (and any such material change
or relocation of Employer or Employee shall
be deemed a continuing breach of this
Agreement);
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(iii) the liquidation, dissolution, consolidation
or merger of Employer or Allied (other than
a merger or other combination of Employer
and Allied or Employer and an Affiliate);
provided, however, that if there shall be a
termination of employment resulting from
events described in this subsection (iii)
and in subsection (d) below, then such
termination shall be deemed to fall within
the terms of subsection (d) below which
shall control and be paramount;
(iv) any other material breach of this Agreement
by Employer which shall not be cured within
thirty (30) days after receipt of written
notice of same from Employee;
(v) Employer or Allied filing a petition for
protection or relief from creditors under
the federal bankruptcy law, or any petition
shall be filed against Employer or Allied
under the federal bankruptcy law, or
Employer or Allied shall admit in writing
its inability to pay its debts or shall
make an assignment for the benefit of
creditors, or a petition or application for
the appointment of a receiver or liquidator
or custodian of Employer or Allied is
filed, or Employer or Allied shall seek a
composition with creditors; or
(c) Employee's employment shall be terminated by
Employer for any reason other than for Cause or
because Employer elects not to extend this Agreement
beyond the Initial or any Renewal Term; or
(d) If (i) Employer or Allied undergoes any change in
control or ownership whereby Employer or Allied is
reorganized, merged, or consolidated with one or
more corporations as a result of which the owners of
all of the outstanding shares of common stock
immediately prior to such reorganization, merger or
consolidation own in the aggregate less than seventy
percent (70%) of the outstanding shares of common
stock of the Employer or Allied or any other entity
into which Employer or Allied shall be merged or
consolidated immediately following the consummation
thereof (hereinafter, "Employer's successor-in-
interest"), or (ii) the sale, transfer or other
disposition of all or substantially all of the
assets or more than thirty percent (30%) of the then
outstanding shares of common stock of Employer or
Allied is effectuated, other than as a result of a
merger or other combination of Employer and an
Affiliate, or (iii) the acquisition by any "person"
as used for purposes of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934 of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty
percent (20%) or more of the combined voting power
of Employer's or Allied's then outstanding voting
securities is effectuated; or (iv) the individuals
who, as of the date of execution of this Agreement,
are members of the Board of Directors (the
"incumbent Board") of Allied cease for any reason to
constitute at least two-thirds (2/3) of the
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Board; provided, however, that if the election, or
nomination for election by the shareholders of any
new director was approved by a vote of at least
two-thirds (2/3) of the incumbent Board, such new
director shall, for purposes of this Agreement, be
considered as a member of the incumbent Board, and
(a) Employee's employment with Employer or
Employer's successor-in-interest is terminated by
Employer or Employer's successor-in-interest (as the
case may be) or Employee for any reason, or (b)
Employee's employment under this Agreement is not
extended by Employer or Employer's
successor-in-interest for any Renewal Term, and such
termination or non-renewal occurs within two (2)
years after the closing of the transaction which
resulted in the change in control,
then Employer shall, depending upon the reason for the termination of
Employee's employment, immediately pay in cash to Employee an amount determined
as follows:
(x) If the termination shall be pursuant to subparagraph (d)
above, the amount shall be equal to the sum of
(1) three hundred percent (300%) of Employee's
then-effective annual Base Salary; and
(2) three hundred percent (300%) of Employee's
then-effective Bonus, as hereinafter defined.
In addition, Employer shall continue to provide to Employee (except in
the case of Employee's death), for a period of three (3) years from
said termination, the benefits enumerated in Paragraph 6(a) and
Paragraph 6(c) hereof.
(y) If the termination shall be other than pursuant to
subparagraph (d) above, the amount shall be equal to the sum
of
(1) two hundred percent (200%) of Employee's
then-effective annual Base Salary; and
(2) two hundred percent (200%) of Employee's
then-effective Bonus, as hereinafter defined.
In addition, Employer shall continue to provide to Employee (except in
the case of Employee's death), for a period of two (2) years from said
termination, the benefits enumerated in Paragraph 6(a) and Paragraph
6(c) hereof.
10. OPERATIVE PROVISIONS.
(a) As used in this Agreement, the term "Bonus" shall
mean:
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(i) with respect to the most recent grant or
award of restricted stock, pursuant to
Employer's "Long Term Incentive Plan", made
prior to the date of termination of
Employee's employment, the Dollar value, as
of the date of such grant or award, of the
Long Term Incentive Plan restricted stock
plan target for Employee as approved by the
Compensation Committee of Employer's Board
of Directors, which Dollar value is
established by the Compensation Committee
notwithstanding the number of shares
actually received pursuant to such grant or
award and notwithstanding the value of such
shares actually received; plus
(ii) the highest of (1) the average of the EVA
bonuses actually paid to Employee for the
two (2) years immediately preceding the
year in which termination of employment
occurs; (2) the average of the EVA bonuses
which would have been paid to Employee for
the two (2) years immediately preceding the
year in which termination of employment
occurs, assuming his EVA target bonus had
been achieved for each such year; or (3)
the amount of the EVA target bonus for
Employee for the year in which termination
of employment occurs.
(b) In the event of a termination of employment pursuant
to Paragraph 9 hereof, all restricted stock awards
of Employee shall become wholly unrestricted and all
unvested stock options of Employee shall become
fully vested in Employee, and all such agreements
pertaining thereto shall be read accordingly;
provided, however, that Employee shall not have any
such rights with respect to any stock issued under
any employee stock plan of Employer qualifying under
Section 402(a) et seq. of the Code if, and to the
extent, such rights would jeopardize the
qualification of such plan under said Section. As
used in the preceding sentence, "Code" means the
Internal Revenue Code of 1986 as amended from time
to time or any provisions from time to time enacted
and corresponding in substance thereto.
(c) Paragraph 9 and this Paragraph 10 shall survive the
termination of this Agreement, and this Agreement
shall be read accordingly.
11. INTENTION OF PARTIES. It is the express understanding and
intention of Employer and Employee that the provisions of Paragraph 5 and
Paragraph 9 hereof shall be read together and be non-exclusive so that, in the
event of a termination of Employee's employment pursuant to Paragraph 9 of this
Employment Agreement, Employee shall receive both (i) all of the compensation
specified in Paragraph 9 hereof (including, but not limited to, the applicable
percentage of Employee's then-effective Base Salary and the applicable
percentage of the cash portion of Employee's Bonus) and (ii) one hundred
percent (100%) of the pro rata portion of both the cash and equity parts of
Employee's Bonus based on the number of days in the fiscal year falling within
the Term (which shall include the amount of any EVA bonus paid to Employee
during that
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year, if any), but in no event shall such pro rata portion be less than the
pro rata share of the highest of (i) the average of the EVA bonuses actually
paid to Employee for the two (2) years immediately preceding the year in which
termination of employment occurs; (ii) the average of the EVA bonuses which
would have been paid to Employee for the two (2) years immediately preceding
the year in which termination of employment occurs, assuming his EVA target
bonus had been achieved for each such year; or (iii) the amount of the EVA
target bonus for Employee for the year in which termination of employment
occurs. The amounts referred to in this Paragraph are in addition to the
benefits enumerated in Paragraphs 6(b) and 6(c) hereof.
12. CONDITIONS TO BENEFITS. Anything in this Agreement to the
contrary notwithstanding:
(a) To receive the benefits enumerated in Paragraph 9
hereof, Employee shall execute and agree to be bound
by a release agreement substantially in the form
attached to this Agreement as Exhibit A and, to the
extent applicable, a resignation letter
substantially in the form attached as Exhibit B,
prior to, and as a condition to, receiving any
payments or benefits provided for in Paragraph 9
hereof or otherwise following termination of his
employment hereunder [and, if applicable, the
release agreement may contain provisions required by
federal, state or local law (e.g., the Older
Worker's Benefit Protection Act) to effect a general
release of all claims].
(b) Employee's right to receive any of the benefits
provided for in Paragraph 9 or otherwise in this
Agreement following termination of his employment
hereunder shall immediately cease and be of no
further force or effect if Employee violates any of
the covenants contained in Paragraphs 13, 14, 15 or
16 hereof.
13. COVENANT NOT-TO-DISCLOSE. Employer and Employee recognize
that, during the course of Employee's term of employment with Employer pursuant
to this Agreement, Employer will disclose to Employee information concerning
Employer and the Affiliates, their products, their customers, their services,
their trade secrets, their proprietary information and other information
concerning their business all of which constitute valuable assets of Employer
and the Affiliates. Employer and Employee further acknowledge that Employer
has, and will, invest considerable amounts of time, effort and corporate
resources in developing such valuable assets and that disclosure by Employee of
such assets to the public shall cause irreparable harm, damage and loss to
Employer and the Affiliates.
(a) To protect these assets, Employee agrees that he
shall not, during the Restricted Period, advise or
disclose to any person, corporation, firm,
partnership or other entity whatsoever (except
Employer or an Affiliate), or any officer, director,
stockholder, partner or associate of any such
corporation, firm, partnership or entity any
information received from Employer by Employee
during the course of Employee's association with
Employer relating to the business affairs of
Employer and the Affiliates
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including information concerning Employer's and the
Affiliates' finances, services, customers, customer
lists, prospective customers, staff, contemplated
acquisitions (whether of business or assets), ideas,
proprietary information, methods, marketing
investigations, surveys, research and any other
information relating to the business and objectives
of Employer and the Affiliates, except as permitted
by Exhibit C hereof.
(b) Employee further agrees that he shall not, during
the term of his employment or any time thereafter,
advise or disclose to any person or entity any trade
secret which Employer or any Affiliate has disclosed
to Employee during the course of his employment with
Employer.
(c) In the event Employee's employment is terminated,
Employee agrees that, if requested by Employer, he
will acknowledge in writing that he received the
disclosures referred to herein and is under the
obligations referred to in this Agreement.
(d) This Paragraph 13 shall, except as otherwise
provided in this Agreement, survive the termination
of this Agreement.
14. COVENANT NOT-TO-INDUCE. Employee covenants and agrees that
during the Restricted Period, he will not, directly or indirectly, on his own
behalf or in the service or on behalf of others, hire, solicit, take away or
attempt to hire, solicit or take away any employee or other personnel of
Employer and the Affiliates. This Paragraph 14 shall, except as otherwise
provided in this Agreement, survive the termination of this Agreement.
15. COVENANT OF NON-DISPARAGEMENT AND COOPERATION. Employee
agrees that he shall not at any time during or following the term of this
Agreement make any remarks disparaging the conduct or character of Employer or
the Affiliates or any of Employer's or the Affiliates' current or former
agents, employees, officers, directors, successors or assigns (collectively the
"Related Companies"). In addition, Employee agrees to cooperate with the
Related Companies, 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 expenses approved by Employer or the Affiliates incurred in
providing such assistance. This Paragraph 15 shall survive the termination of
this Agreement.
16. COVENANT NOT-TO-COMPETE. Employer and Employee acknowledge
that, by virtue of Employee's responsibilities and authority, he shall, during
the course of his Employment, be instrumental in developing, and receive highly
confidential information concerning, Employer and the Affiliates, their
customers, their services, their trade secrets, their proprietary information
and other information concerning the Logistics Business, much of which will be
unavailable to those in positions 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
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Employee's using or exploiting this information, Employee agrees that, if the
employment relationship between Employee and Employer terminates for any reason
whatsoever other than termination by Employer without Cause, then, in such
event, for a period of one (1) year from the date of Employee's termination of
employment, Employee shall not engage in the Logistics Business in the
Restricted Territory, and Employee shall not directly or indirectly, own,
manage, join, control, contract with, be employed by, act in the capacity of an
officer, director, trustee, shareholder or partner or consultant, or
participate in any manner in the ownership, management, operation, or control
of any business or person engaged in the Logistics Business in the Restricted
Territory; provided, however, Employee shall be permitted to own not more than
five percent (5%) of the stock of a corporation required to file reports
pursuant to the Securities Exchange Act of 1934. As to the foregoing, Employee
acknowledges that he has the ability to earn a comparable income within or
without the Restricted Territory in other than the Logistics Business and that
earning a livelihood outside the Logistics Business within or without the
Restricted Territory would not constitute a hardship or an unreasonable
restriction on the Employee or restrict him from earning comparable income.
Employee acknowledges that the area in which the Employer engages in
the Logistics Business shall geographically increase under the leadership of
Employee and that, as such increase occurs in such new areas, it is necessary
for the interests of the Employer to be protected in them. Accordingly,
Employee acknowledges and agrees that, upon receipt of consideration from
Employer in the sum of One Hundred Dollars ($100.00), in each case, he shall,
at any time and from time to time, execute an amendment to this Agreement
amending the definition of Restricted Territory to include such new areas. This
Paragraph 16 shall survive the termination of this Agreement.
17. SPECIFIC ENFORCEMENT. Employer and Employee expressly agree
that a violation of the covenants not-to-disclose, not-to-induce,
not-to-disparage and not-to-compete contained in Paragraphs 13, 14, 15 and 16
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 13, 14, 15 and 16
hereof.
18. 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 13, 14, 15 and 16 hereof 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 13, 14, 15 and 16 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.
19. 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.
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20. OTHER TAX CONSIDERATIONS. Notwithstanding any other provision
of this Agreement to the contrary, in the event that any payment or benefit
received or to be received by Employee is triggered by an event described in
subparagraph (d) of Paragraph 9 of this Agreement, whether such payment or
benefit is pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with Employer or any Affiliate of Employer
(hereinafter, all such payments and benefits being sometimes referred to as
"Total Payments"), and would not be deductible, either in whole or in part, by
Employer or an Affiliate making such payment or providing such benefit as a
result of Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), then, to the extent necessary to make such portion of the Total
Payments deductible (and after taking into account any reduction in the Total
Payments provided by reason of Section 280G of the Code in any such other plan,
arrangement or agreement), (A) the cash portion of the Total Payments provided
in this Paragraph 20 shall first be reduced (if necessary, to zero (0)), and
(B) all other non-cash Total Payments under this Paragraph 20 shall next be
reduced (if necessary, to zero (0)); provided, however, that the Employee's
payment shall only be reduced by this Paragraph 20 if Employer determines that
reducing the Total Payments would result in greater after-tax proceeds to the
Employee than if no such reduction in Total Payments had occurred. Any
determination required by the preceding sentence shall be made by independent
certified public accountants or tax counsel (hereinafter, such party shall
sometimes be hereinafter referred to as the "Independent Adviser") selected by
Employer, the selection of which shall be reasonably acceptable to Employee. In
making Employer's determination as to the application and effect of this
Paragraph 20 on any payments or benefits received or to be received by
Employee, (i) no portion of the Total Payments shall be taken into account
which in the opinion of the Independent Adviser does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code,
including by reason of Section 280G(b)(4)(A) of the Code; (ii) those Total
Payments provided under this Paragraph 20 shall be reduced only to the extent
necessary so that the Total Payments (other than those referred to in clause
(i)) in their entirety constitute reasonable compensation for services actually
rendered within the meaning of Section 280G(b)(4)(B) of the Code or are
otherwise not subject to disallowance as deductions, in the opinion of the
Independent Adviser; and (iii) the value of any non-cash benefit or any
deferred payment or benefit included in the Total Payments shall be determined
by the Company's independent certified public accountants in accordance with
the principles of Sections 280G(d)(3) and (4) of the Code.
21. 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.
22. 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
his 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.
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23. ASSIGNMENT.
(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.
24. NOTICES. All notices required herein shall be in writing and
shall be deemed to have been given when delivered personally or when 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
With a copy to:
Xxxxx Xxxxxxx Xxxxxx Xxxxxxx & Xxxxxxxxx, P.C.
0000 XxxxxXxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxx, Esquire
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.
25. BINDING EFFECT. This Agreement shall be binding on the
parties hereto and on their respective heirs, administrators, executors,
successors and permitted assigns.
26. 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.
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27. 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.
28. 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.
29. GUARANTY BY ALLIED. Allied hereby unconditionally guarantees
the performance and payment obligations of Employer pursuant to this Agreement
including, without limitation, the payment of base salary and bonus
compensation pursuant to Paragraphs 4 and 5 hereof, and the termination payment
pursuant to Paragraph 9 hereof.
IN WITNESS WHEREOF, Employee has hereunder set his 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 XXXX XXXXX
ATTEST: AXIS GROUP, INC.
By: By:
---------------------------- --------------------------------------
Its Secretary Its President
---------------- ----------------
[CORPORATE SEAL]
ATTEST: ALLIED HOLDINGS, INC.
By: By:
---------------------------- --------------------------------------
Its Secretary Its President
---------------- ----------------
[CORPORATE SEAL]
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