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EXHIBIT 10.20
CONFIDENTIAL TREATMENT REQUESTED
CONSULTING AND NON-COMPETITION AGREEMENT
This agreement made this 27th day of March 1998 by and between Timely
North, Inc., a Georgia corporation ("TIMELY NORTH") and CSI/Crown, Inc., a
Georgia corporation ("CSI/CROWN").
WHEREAS, Timely North has been engaged in the less-than-truckload motor
carrier business in the floor covering and carpet market ("LTL BUSINESS"); and
WHEREAS, Timely North has determined that it is in its best interest to
cease its LTL Business as of April 1, 1998; and
WHEREAS, CSI/Crown operates as a less-than-truckload motor carrier in the
floor covering and carpet market and is desirous of acquiring the LTL Business
of the customers of Timely North who will no longer be served by Timely North
when it ceases its LTL Business as of April 1, 1998;
NOW, THEREFORE, for and in consideration of the premises and the covenants
and agreements hereinafter set forth, the sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Cessation of Business. Timely North will cease its LTL Business as of
April 1, 1998 and will transfer the phone numbers used exclusively in its LTL
operations to CSI/Crown.
2. Duties. CSI/Crown hereby retains Timely North as a consultant on all
matters pertaining to the business of CSI/Crown, with such responsibilities as
may be determined by the officers and directors of CSI/Crown consistent with the
knowledge and abilities of Timely North. Timely North agrees to use its
reasonable best efforts to persuade its present LTL customers to transfer their
business to CSI/Crown and to maintain their business with CSI/Crown. CSI/Crown
may request Timely North to examine and study a particular problem or matter
that may arise and to meet with employees and customers of CSI/Crown as may be
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required and Timely North shall furnish CSI/Crown with its reasonable best
advice with respect to such problem or matter.
It is expressly agreed that CSI/Crown will call upon Timely North for
advice and consultation only, and Timely North shall be free to engage in other
business, subject to the provisions of Section 5 hereof.
3. Compensation. For the services to be rendered by Timely North
hereunder, and for holding itself available for consultation and advisory
services to CSI/Crown, CSI/Crown will pay to Timely North a one-time fee of
XXXXXXXXXXXXXXXXXXXXXXX Dollars ($XXXXXXXXXXX) on April 1, 1998 and a XXXX
percent (XX%) commission on certain of Timely North's customers accounts which
are retained as customers by CSI/Crown. Such accounts and the required volume of
business are set forth on Schedule A hereto attached.
During the term of this Agreement, CSI/Crown will tender to Timely North no
less than 75 truckloads per week for transport at market rates to mutually
agreeable destinations provided service is maintained at agreed level of
performance.
4. Term. The term of this Agreement shall be for a period of five (5)
years from the date of this Agreement.
5. Non-Competition Agreement of Timely North. As a material inducement to
CSI/Crown's entering into this Agreement, Timely North covenants to CSI/Crown
that during the term of this Agreement it will adhere to the following covenants
of non-competition:
Timely North acknowledges that the LTL Business of CSI/Crown is
conducted nationwide and in Canada and that these covenants of non-competition
will apply throughout the United States and Canada. Accordingly, Timely North
covenants and agrees not to directly or indirectly compete in any manner with
the LTL Business conducted by CSI/Crown or to directly or indirectly render any
service to or provide financing for, or aid, abet or assist any person, firm or
corporation which competes with CSI/Crown in the LTL Business. Timely North will
not directly or indirectly solicit or attempt to solicit the business or
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xxx-Omitted pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange Commission.
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patronage of any person, firm or corporation for purposes of selling the types
of LTL Business services rendered by CSI/Crown except for the benefit of
CSI/Crown. Timely North expressly acknowledges that these covenants of
non-competition do not impose economic hardship upon Timely North. If at any
time the foregoing provisions shall be deemed to be invalid or unenforceable or
prohibited by the laws of the state or place where they are to be enforced, by
reason of being vague or unreasonable as to duration, place of performance, or
for any other reason, then this section shall be considered divisible and shall
become and be deemed immediately amended to include only such time and such area
as shall be determined to be reasonable and enforceable by the court or other
body having jurisdiction over this Agreement. Timely North and CSI/Crown
expressly agree that this section as so amended, shall be valid and binding as
though any invalid or unenforceable provision had not been included herein.
Timely North further agrees that for the aforesaid five (5) year period it will
not, directly or indirectly, (i) solicit, hire, or in any manner persuade or
attempt to persuade any employee, consultant or agent of CSI/Crown to terminate
his, her, or its relationship with CSI/Crown, or (ii) encourage or cause any
customers or suppliers of CSI/Crown to cease doing business with CSI/Crown.
6. Individual Non-Competition Agreements. As an additional material
inducement to CSI/Crown's entering into this Agreement, Timely North agrees that
on or before April 1, 1998 it will procure a Non-Competition Agreement similar
to that set forth above in Section 5 from Xxxxxx X. Xxxxx to CSI/Crown and
likewise will procure a Non-Competition Agreement similar to that set forth
above in Section 5 from Xxxxxxx X. Xxxxxx to Timely North and will assign such
non-competition agreement to CSI/Crown and will obtain from Xxxxxxx X. Xxxxxx
his consent to such assignment.
Provided, however, that if Timely North fails to procure the
non-competition agreement from Xxxxxxx X. Xxxxxx and its assignment to CSI/Crown
as provided above and if Xxxxxxx X. Xxxxxx engages directly or indirectly in
business as an LTL motor carrier of carpet or floor covering on or before March
31, 2003, then and in that event the two percent (2%) commission being paid by
CSI/Crown to Timely North pursuant to Section 3 above shall immediately
terminate.
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7. Waiver. The waiver by either party of a breach of any provision of
this Agreement shall not operate as, nor be construed as, a waiver of any
subsequent or related breach thereof.
8. Entire Agreement. This Agreement represents the entire agreement
between the parties hereto pertaining to the matters herein covered, and any
other prior understandings, agreements or contracts with regard to such matters
are hereby canceled without any further liability whatsoever to either party and
no subsequent change or modification of the terms hereof shall be binding unless
in writing and signed by both of the parties hereto. The actions, courses of
dealing, or customs of the parties shall not operate to amend or modify this
Agreement unless in conformity with the preceding sentence.
9. Severability. If any provision of this Agreement is unenforceable, the
remaining provisions shall, to the extent possible, be carried into effect
taking into account the general purposes and spirit of this Agreement.
10. Benefit. The retention of Timely North as a consultant is being
effected because of Timely North's special capabilities and qualifications and
all of its rights, benefits and duties hereunder are, therefore, not assignable
or transferable in any manner.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original, but which together constitute
one and the same instrument.
12. Remedy. In addition to any other remedy given to CSI/CROWN
hereunder or otherwise, the parties hereto declare that it may be difficult or
impossible to measure adequately in money the damages which will accrue to
CSI/CROWN if Timely North should breach the provisions of Section 5 of this
Agreement. Therefore, if CSI/CROWN, at its election, shall institute any action
or proceeding to enforce the provisions of Section 5 of this Agreement, Timely
North hereby agrees that, with respect to a violation of the provisions of
Section 5 hereof, CSI/CROWN has no adequate remedy at law, and CSI/CROWN shall
be entitled to specific performance of the provisions contained therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
CSI/CROWN, INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, President
TIMELY NORTH, INC.
By: /s/ Xxxxxx X. Xxxxx
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