1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the_______
day of _________________, ____, by and between ___________________________.
("Employee") and ___________________, a Georgia corporation ("Employer").
W I T N E S S E T H:
WHEREAS, Employer, through its Affiliates (as hereinafter defined), is
engaged in the transportation of automobiles and light trucks from the
manufacturer to retailers and related activities (the "Business"); and
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 its 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 and Employee
hereby mutually agree as follows:
1. DEFINITIONS.
(a) "Affiliate" means any corporation or partnership of
which at least eighty percent (80%) of the
outstanding equity and voting rights are owned,
directly or indirectly, 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.
(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 10, 11 or 12 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
2
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 _____ (___)
year(s) 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
__________ (___) years after such date (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 ______________ (___) 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 the
___________________, _________________ and
________________ of Employer, at the direction of the
Chairman and Board of Directors of Employer.
Employee's principal duties shall be such executive,
managerial and administrative duties as the Chairman
and Board of Directors of Employer may, from time to
time, reasonably request.
2
3
(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 of Employer,
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 so long as the aggregate amount
of time spent by Employee in all such capacities
shall not exceed ____________________ (____) 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. 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 ___________________________
Dollars ($__________), adjusted as provided in the following paragraph of this
Paragraph 4, 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 (on each anniversary of the date hereof) and, in the sole
discretion of the Board of Directors, may be increased, but not decreased.
Commencing as of January 1, ____, 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, 199_, the difference will be between said Index as of December 1,
199_ compared to said Index as of December 1, 199_.)
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
3
4
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 and each of its Affiliates, 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, 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
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
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
4
5
to supplement the benefits provided by Employer to maintain the level of
benefits currently provided to him by it.
7. VACATION. Employee shall receive ____ (_) 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 ____________ (____) days after receipt of
written notice of same from Employer; or
(d) Employer's sending Employee written notice
terminating his employment hereunder; or
(e) Employee's voluntarily terminating his employment
with Employer.
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
_________, ________________ and
_________________ 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 (and any such material
change shall be deemed a continuing breach of
this Agreement);
5
6
(iii) the liquidation, dissolution or consolidation
or merger of Employer (other than a merger of
Employer with an Affiliate);
(iv) any other material breach of this Agreement
by Employer which shall not be cured within
__________ (____) days after receipt of
written notice of same from Employee;
(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 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 (i) for Cause or (ii)
because Employer shall have elected not to renew the
Term at the end of the Initial Term or any Renewal
Term and shall have given written notice to Employee
at least ________ (____) months prior to the end of
the Initial Term or any Renewal Term (as the case
may be) of such election,
then Employer (x) shall immediately pay to Employee an amount equal to the sum
of
(1) ____________ percent (____%) of Employee's
then-effective annual Base Salary; and
(2) the average of the Bonus paid to Employee for the
____________ (____) fiscal years of Employer
immediately preceding the year in which Employee's
termination shall occur;
and (y) shall continue to provide to Employee (except in the case of
Employee's death), for a period of ______ (____) year after such termination,
the benefits enumerated in Paragraphs 6(b) and 6(c) hereof.
This Paragraph 9 shall survive the termination of this Agreement
accordingly.
10. INTENTION OF PARTIES. It is the express understanding and
intention of Employer and Employee that the provisions of Paragraph 5 and
Paragraph 9 be read together and be non-exclusive so that, in the event of a
termination of Employee's employment pursuant to Paragraph 9 of the Employment
Agreement, Employee shall receive both __________ percent (____%) of Employee's
then-effective Base Salary and a pro rata portion of Employee's Bonus based on
the
6
7
number of days in the fiscal year falling within the Term, said amounts being in
addition to the benefits enumerated in Paragraphs 6(b) and 6(c) hereof.
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, including Employer's trade secrets, proprietary
information and other information concerning Employer's 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 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 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 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 14 hereof, he shall not, directly or indirectly, for any person
(including Employee himself), corporation, firm, partnership, proprietorship or
other entity, other than Employer, engaged in the transportation of automobiles
and light trucks from manufacturers to retailers, solicit business from any
Restricted Customer. This Paragraph 11 shall, except as otherwise provided in
this Agreement, survive the termination of this Agreement.
12. 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, its products, its customers, its services, its trade secrets, its
proprietary information and other information concerning its business all of
which constitute valuable assets of Employer. 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.
(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 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 including information concerning
Employer's
7
8
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, except as permitted by Exhibit B 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 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 12 shall, except as otherwise provided
in this Agreement, survive the termination of this
Agreement.
This Paragraph 12 hereof 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 Paragraph 12 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.
13. 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. This
Paragraph 13 shall, except as otherwise provided in this Agreement, survive the
termination of this Agreement.
14. PARAMOUNT PROVISION. Anything in this Agreement to the
contrary notwithstanding, the provisions of Paragraph 11 and Paragraphs 12(a)
and 12(c) hereof shall not apply to Employee, and shall be absolutely null and
void, in the event:
(a) Employer shall not renew this Agreement, at the end
of the Initial Term, for at least ________ (___)
Renewal Term; or
(b) Employee shall terminate his employment hereunder
for any one of the reasons set forth in Paragraph
9(b) hereof.
8
9
15. 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 11, 12 and 13 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 and 13 hereof.
16. 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 and 13 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
and 13 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.
17. 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.
18. 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.
19. 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.
20. 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.
9
10
21. 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:
160 Clairemont Avenue
Suite 510
Decatur, Georgia 30030
With a copy to:
Cohen Pollock Merlin Axelrod & Tanenbaum, P.C.
2100 RiverEdge Parkway
Suite 300
Atlanta, Georgia 30328-4656
Attn: Elliott Cohen, Esquire
If to Employee at:
-----------------------
-----------------------
With a copy to:
------------------------
------------------------
------------------------
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.
22. BINDING EFFECT. This Agreement shall be binding on the
parties hereto and on their respective heirs, administrators, executors,
successors and permitted assigns.
23. 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.
24. 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.
10
11
25. 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 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 ____________________
ATTEST: ____________________
By:_________________________ By:_______________________
Its ________ Secretary Its___________ President
[CORPORATE SEAL]
11