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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the 23rd day
of February, 2000, by and between _____________________________ ("Employee")
and ALLIED HOLDINGS, INC., a Georgia corporation ("Employer").
W I T N E S S E T H
WHEREAS, Employer, through the Affiliates (as hereinafter defined), is
engaged in the transportation of automobiles and light trucks from the
manufacturer to retailers and related activities (the "Business");
WHEREAS, Employee has a number of years of experience in said industry
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;
WHEREAS, Employer and Employee have made and entered into a previous
employment agreement, as well as clarifications and amendments thereto; and
WHEREAS, Employer and Employee deem it to their respective best
interest to clarify the duties and obligations, each to the other, by executing
this new 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 that all previous employment agreements, and all
clarifications and amendments thereto, are superseded, null, void, and of no
further force and effect, and Employer and Employee further mutually agree as
follows:
1. DEFINITIONS.
(a) "Affiliate" means any corporation, partnership or other
entity of which at least eighty percent (80%) of the
outstanding equity and voting rights are owned, directly or
indirectly through any other corporation, partnership or
other entity, by Employer.
(b) "Base Salary" means the annual salary payable pursuant to
Paragraph 4(a) hereof as adjusted, from time to time,
pursuant to Paragraph 4(b) hereof.
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(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 12, 13 or 14 hereof.
(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 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 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 three (3) years 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 that
date five (5) years after such date (the "Initial Term"). Upon the expiration
of the Initial Term, and on
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the expiration of each successive Renewal Term (as hereinafter defined),
Employee's employment shall be automatically renewed for an additional term of
two (2) years (the "Renewal Term(s)"), unless written notification of
termination is given by either party to the other party not less than one (1)
year 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 _________________
of Employer, at the direction of the Board of Directors of
Employer. Employee's principal duties shall be such
executive, managerial and administrative duties as the
Board of Directors of Employer may, from time to time,
reasonably request.
(b) 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 (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.
(c) Employee shall not be required to relocate outside of the
metropolitan Atlanta, Georgia, area.
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 ___________________($______________), adjusted as
provided in subparagraph (b) below, 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
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(on each anniversary of the date hereof) and, in the sole
discretion of the Board of Directors, may be increased, but
not decreased.
(b) Commencing as of January 1, 2001, and as of each January
1st thereafter during the Term, the annual salary shall be
increased, but not decreased, by an amount equal to the
greater of (i) such amount as shall be determined by the
Compensation Committee of the Board of Directors of
Employer; or (ii) the amount equal to the percentage, if
any, by which the Consumer Price Index (All Items Less
Shelter), Urban Wage Earners and Clerical Workers, for the
Southeast Region/Population Size Class B, published by the
United States Government Bureau of Labor Statistics for the
December 1 preceding such January exceeds such Index for
the December 1 of the preceding year. (As an example, as of
January 1, 2001, the difference will be between said Index
as of December 1, 2000 compared to said Index as of
December 1, 1999.)
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 from time to time amended
and in effect), to the extent and on such terms and conditions as shall from
time to time be determined by the Board of Directors of Allied Holdings, Inc.;
and to receive an annual bonus, if any, calculated pursuant thereto.
6. OTHER BENEFITS. During the Term, Employer shall provide the
following benefits to Employee:
(a) Employee shall be elected to a seat on the Board of
Directors of Employer, but shall not, however, be entitled
to any additional compensation for such service;
(b) 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 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;
(c) Employee shall be provided with the use of automobiles at
least comparable to any automobile currently provided to
Employee, 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;
(d) Employee shall be provided with the use of a car or mobile
telephone, at no cost to Employee;
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(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 Employee; and
(f) Employee shall, at all times, have available to him an
expense account 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 (b) 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 five (5) 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 in the event any vacation time for any year
shall not be used by Employee prior to the end of such year, 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
(b) Employee's death; or
(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; or
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(d) Employer's sending Employee written notice terminating his
employment hereunder prior to expiration of the Term in
accordance with Paragraph 2 hereof; or
(e) Employee's voluntarily terminating his employment with
Employer prior to the expiration of the Term; or
(f) Employee's being terminated for Cause.
9. TERMINATION PAYMENT. 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 Vice-Chairman
or Chief Executive Officer 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);
(iii) the liquidation, dissolution, consolidation or
merger of Employer (other than a merger or other
combination of Employer and an Affiliate); however,
if a termination of employment results from events
described in this subsection (iii) and subsection
(d) below, then such termination shall be deemed to
be pursuant to subsection (d) below;
(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; or
(v) Employer filing a petition for protection or relief
from creditors under the federal bankruptcy law, or
any petition shall be filed against Employer under
the federal bankruptcy law, or Employer shall admit
in writing its inability to pay its
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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 is filed, or Employer 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 undergoes any change in control or
ownership whereby Employer 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 any other entity into which Employer 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 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 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") cease for
any reason to constitute at least two-thirds (2/3) of the
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:
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(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 the Bonus, as
hereinafter defined.
In addition, Employer shall continue to provide to Employee
(except in the case of Employee's death), for a period
equal to the greater of (i) the remainder of the Term had
not said termination occurred, and (ii) three (3) years
from said termination, the benefits enumerated in
Paragraphs 6(b) and 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) that percentage of Employee's then-effective annual
Base Salary equal to the product of the number of
whole or partial years remaining in the Term and
one hundred (100); and
(2) that percentage of Employee's then-effective Bonus,
as hereinafter defined, equal to the product of the
number of whole or partial years remaining in the
Term and one hundred (100);
provided, however, in no event shall the percentage in
subparagraphs (1) and (2) hereof be less than three hundred
percent (300%)
In addition, Employer shall continue to provide to Employee
(except in the case of Employee's death), for a period of
years equal to the number of whole or partial years
remaining in the Term, but in no event fewer than three (3)
years, the benefits enumerated in Paragraphs 6(b) and 6(c)
hereof.
10. OPERATIVE PROVISIONS.
(a) As used in this Agreement, the term "Bonus" shall mean:
(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
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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 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
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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. 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.
Employer and Employee recognize that, during the course of Employee's
term of employment with Employer pursuant to this Agreement, Employee shall
contact, solicit or approach Employer's and the Affiliates' customers and
prospective customers on behalf of Employer. Employer and Employee further
acknowledge that Employee has and shall, during his term of employment with
Employer, solicit business for Employer and the Affiliates from the customers
listed on EXHIBIT A attached hereto and made a part hereof (collectively, the
"Restricted Customers").
To protect Employer from Employee's solicitation of business from such
customers during the Restricted Period, Employee agrees that, subject to
Paragraph 15 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
transportation of automobiles and light trucks from manufacturers to retailers,
solicit business from any Restricted Customer. This Paragraph 12 shall, except
as otherwise provided in this Agreement, survive the termination of this
Agreement.
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,
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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 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 this Paragraph 13.
(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.
Any implication in this Paragraph 13 to the contrary notwithstanding,
this Paragraph 13 shall not, and shall not be deemed to, prohibit Employee from
disclosing information regarding Employer that (i) is already public
information other than because of any breach of this Paragraph 13 by Employee;
(ii) shall be required by applicable Federal or state laws; (iii) shall not be
confidential or proprietary and shall be required in the ordinary course of
business; and (iv) shall be required pursuant to the order of any court or
administrative agency having jurisdiction; provided, however, that the
foregoing shall not permit the disclosure of any trade secret of Employer.
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 an 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. PARAMOUNT PROVISION. Anything in this Agreement to the contrary
notwithstanding, the provisions of Paragraph 12 and Paragraphs 13(a) and 13(c)
hereof
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shall not apply to Employee, and shall be absolutely null and void, in the
event Employee shall terminate his employment hereunder for any one of the
reasons set forth in Paragraph 9(b) hereof.
16. SPECIFIC ENFORCEMENT. Employer and Employee expressly agree that
a violation of the covenants not-to-solicit, not-to-disclose and not-to-induce
contained in Paragraphs 12, 13 and 14 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 12, 13 and 14 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 12, 13 and 14 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 12, 13
and 14 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. 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 19 shall first be reduced (if necessary, to zero (0)), and
(B) all other non-cash Total Payments under this Paragraph 19 shall next be
reduced (if necessary, to zero (0)); provided, however, that the Employee's
payment shall only be reduced by this Paragraph 19 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
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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 19 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 19 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.
20. 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.
21. 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.
22. 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.
23. 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.
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Mail, certified or registered, postage prepaid, return receipt requested,
addressed as follows, to wit:
If to Employer at:
160 Clairemont Avenue, Suite 200
Decatur, Georgia 30030
With a copy to:
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If to Employee at:
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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.
24. BINDING EFFECT. This Agreement shall be binding on the parties
hereto and on their respective heirs, administrators, executors, successors and
permitted assigns.
25. 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.
26. 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.
27. 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.
[SIGNATURE PAGE TO FOLLOW]
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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)
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WITNESS
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ATTEST: ALLIED HOLDINGS, INC.
By: By:
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Its Secretary Its President
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[CORPORATE SEAL]
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