EX-10.1 EMPLOYMENT AGREEMENT - MARK J. GENDREGSKE



 





Exhibit 10.1




EMPLOYMENT AGREEMENT




          THIS “AGREEMENT” is made as of May 11, 2007, between Allied Holdings, Inc., a Georgia
corporation (the “Company”), and Mark J. Gendregske (the “Executive”), a resident
of the State of Michigan.




          In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto
agree as follows:




          1. Employment. The Company shall employ the Executive, and the Executive hereby
accepts employment with the Company, upon the terms and conditions set forth in this Agreement for
the period beginning on the 1st of June 2007 and ending as provided in paragraph 4 hereof.
Executive will be providing notice of termination to his current employer on or about May 11, 2007
with an effective termination date of May 31, 2007. Should his current employer terminate the
employment relationship prior to May 31, 2007, Executive’s employment under the terms of this
Agreement shall begin on the day following his termination by his current employer.




          2. Position and Duties.




          (a) During the Employment Period, the Executive shall serve as President and Chief Executive
Officer (“CEO”) of the Company and shall have the normal duties, responsibilities,
functions and authority of the President and CEO, subject to the power of the Board to expand or
limit such duties, responsibilities, functions and authority and to override actions of officers of
the Company.




          (b) During the Employment Period, the Executive shall report to the Board and shall devote his
best efforts and his full business time and attention (except for permitted vacation periods,
reasonable periods of illness or incapacity, reasonable and customary time spent on civic,
charitable and religious activities and personal investments) to the business and affairs of the
Company and its Affiliates. The Executive shall perform his duties, responsibilities and functions
to the Company and its Affiliates hereunder to the best of his abilities in a diligent,
trustworthy, businesslike and efficient manner. The Company acknowledges and agrees that Executive
may serve on the Board of Directors of APC Management Group, Inc. However, this consent may be
withdrawn at any time if Executive spends more than 20 hours per month on such Board activity (when
taken together with all other outside non-Company activities) and/or if such Board activity as
determined by the independent directors of the Company in any way competes with the Company or
interferes with Executive’s duties as CEO.




          (c) During the Employment Period, the Executive shall be a member of the Company’s Board.




          (d) For purposes of this Agreement, “Affiliates” shall mean any corporation or other
entity of which the securities or other ownership interests having the voting power to elect




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Mark J. Gendregske Employment Agreement — continued



a majority of the Board of Directors or other governing body are, at the time of determination, owned
by the Company, directly or through one of more Affiliates.




          3. Compensation and Benefits.




          (a) During the Employment Period, the Executive’s base salary shall be $475,000.00 per annum
or such other rate as the Board may determine from time to time (as adjusted from time to time, the
“Base Salary”), which salary shall be payable by the Company in regular installments in
accordance with the Company’s general payroll practices. It is agreed that the Executive’s salary
may be increased by the Board, but may not be decreased without the Executive’s approval. In
addition, during the Employment Period, the Executive shall be entitled to participate in all the
Company’s employee benefit programs (including but not limited to all medical, dental and life
insurance programs) for which senior executive employees of the Company are generally eligible, and
such employee benefit programs shall be substantially similar to those the Company has in place as
of the date hereof. The Executive’s immediate family shall also be entitled to participate in all
medical, dental and life insurance programs in accordance with the terms of those plans. The
Executive shall receive a car allowance of $1,000.00 per month.




          (b) The Executive shall be entitled to receive a one-time signing bonus of $125,000.00,
payable on the first day of employment or as soon as administratively practical thereafter. This
amount is provided in recognition of compensation and benefits which may be forfeited with
Executive’s prior employment. Should the Executive voluntarily resign his employment within six
(6) months, the Executive will reimburse the Company in full.




          (c) The Executive, and his family (including the three children of Executive’s wife), shall be
entitled to medical and dental insurance as of the date of hire. If the Company’s insurance
programs require a waiting period before the Executive become eligible, the Company will pay the
Executive’s portion of the COBRA payments during that waiting period. If Executive’s wife’s
children cannot be covered under the Company’s medical and dental plans, the Company will pay the
COBRA costs for the three children.




          (d) The Executive shall be entitled to the rights guaranteed under FMLA upon commencement of
employment, even though not entitled to rights under the Act for one (1) year.




          (e) Executive shall receive five (5) weeks of vacation per employment year.




          (f) During the Employment Period, the Company shall reimburse the Executive for all reasonable
expenses incurred by him in the course of performing his duties and responsibilities under this
Agreement which are consistent with the Company’s policies in effect from time to time with respect
to travel, entertainment and other business expenses, subject to the Company’s requirements with
respect to reporting and documentation of such expenses.




          (g) The Company shall reimburse the Executive for the reasonable costs and expenses incurred
by the Executive in re-locating the Executive and his family to the Atlanta, Georgia area. For
purposes of this Agreement, reasonable costs and expenses shall include travel




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and hotel expenses for the Executive and his spouse to research appropriate living accommodations up to a maximum of
three (3) round-trips, actual moving expenses for the Executive’s household goods, and temporary
living expenses in the Atlanta, Georgia area for the Executive and his family not to exceed one (1)
year; provided, however, that temporary living expenses and commuting airfare shall not exceed
$30,000.00 in the aggregate. If the Executive sells his Clarkston home, the Company will make up
the difference between the sale price and the purchase price paid by Executive in February 2007 up
to a maximum of $50,000.00. In addition, the Company will reimburse the Executive for real estate
broker fees, closing costs, transfer fees and attorney fees (attorney fees not to exceed $10,000)
relating to the purchase of a new residence in the Atlanta, Georgia area and the sale of his
residence in Clarkston, Michigan. All such costs and expenses are to be reviewed and approved in
advance by a designated representative of the Company. To the extent the Executive is taxed on any
part of these reimbursements for costs and expenses, the Company will “gross up” such
reimbursements to ensure that the Executive’s reimbursement is equal to 100% of his out-of-pocket
costs and expenses.




          (h) The Executive shall be eligible to participate in any Company plan relating to the
awarding of stock (including but not limited to restricted stock) or the awarding and granting of
any options. Any awards to the Executive relating to the Company’s stock or stock options shall be
totally at the discretion of the Company’s Board of Directors. Notwithstanding the foregoing, the
Executive will be granted options (the “Value Increase Options”) representing three percent (3%) of
the increase in the Company’s “equity value.” For purposes of calculating the Value Increase
Options, equity value as of the date of this Agreement shall equal the $183 million. Stock option
programs involving the Executive shall have (subject to the approval of the Company’s Board of
Directors) the following provisions and elements:




     (i) With respect to all options, they will vest over a five (5) year period on
a cliff vesting basis with 20% vesting on the first anniversary date of the
Executive’s employment and 20% vesting thereafter on each additional anniversary
date of the Executive’s employment.




     (ii) With respect to the Value Increase Options, the “option period” will
commence on the date of employment of the Executive and the options granted will be
valid for ten (10) years.



          (i) In addition to the Base Salary, the Executive shall be eligible to receive a bonus during
the Employment Period based upon the Executive’s performance and the Company’s operating results
during such year, calculated and payable in accordance with any Company executive bonus plan.
Currently the following formula is in effect with respect to the Executive’s bonus. If in any
fiscal year the Company achieves EBITDA based on the budget approved by the Company’s Board of
Directors for that fiscal year, the Executive’s bonus shall be 100% of Base Salary1. If
EBITDA for that period of time is below 85% of budget, no bonus
will be payable. If EBITDA is 115% of budget, the base bonus of 100% of Base Salary shall be
increased by 50%, so that the total bonus will be 150% of Base Salary. If EBITDA is at or above
85% and below 115% of budget, then the bonus payable will be adjusted accordingly based on




 





1  In the current fiscal year, Executive is
eligible for the full fiscal year bonus, not subject to pro-rating.


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actual performance. The Board of Directors shall have discretion in awarding bonuses where EBITDA for the
Company is above 115% of budget.




          (j) All amounts payable to the Executive as compensation hereunder shall be subject to all
required withholding by the Company.




          (k) The Company shall pay directly to the firm of Van Suilichem & Associates, P.C., attorney
fees in an amount not to exceed $10,000 for advice in connection with this Agreement.




          4. Term.




          (a) The employment period (the “Employment Period”) shall end upon: (i) the
Executive’s resignation, death or period of total mental or physical disability or incapacity
lasting longer than six (6) months (as certified by a healthcare provider); or (ii) the Company’s
termination of the Executive’s employment at any time for Cause (as defined below); or (iii)
without Cause upon thirty (30) days written notice. Except as otherwise provided herein, any
termination of the Employment Period by the Company shall be effective as specified in a written
notice from the Company to the Executive. Should Company terminate Executive for Cause, the
termination notice shall be put in writing and a detailed explanation shall be provided as to each
element of cause with supporting documentation.




          (b) If the Executive’s employment is terminated by the Company without Cause, or for “Good
Reason”, as a severance payment, the Executive shall be entitled to one and a half (1 1/2) times his
Base Salary, COBRA payment by the Company for eighteen (18) months, and one and a half (1 1/2) times
his prior year’s bonus, which amounts shall constitute a “Severance Payment.” Notice of
termination without Cause or termination for good reason shall be put in writing and delivered to
the other Party before it shall be effective. No Severance Payment shall be made until and unless
the Executive has executed and delivered to the Company a general release reasonably acceptable to
the Company and only so long as the Executive has not breached the provisions of paragraphs 5, 6
and 7 hereof. In addition to the Severance Payments, the Executive shall be entitled to any and
all stock options or other incentive compensation that has vested in accordance with the plans
associated with stock options and incentive compensation. The Sale (as defined below) of the
Company shall constitute a termination of the Executive’s employment by the Company without Cause.
However, if the Executive’s employment continues after a Sale of the Company at terms equally as
favorable to those as set forth in this Employment Agreement, then such Sale shall not constitute a
termination of the Executive’s employment without Cause unless the Executive elects to leave the
Company, and provides notice of his election to the Company within 4 months of the Sale, as a
result of the Sale in which case such Sale will be a termination without Cause. For the purposes
of this Agreement, a Sale of the Company shall mean that the Company undergoes a change of control
or ownership whereby the Company is sold, reorganized, merged or consolidated with one or more
companies or entities as a result of which the owners of all of
the outstanding shares of the common stock of the Company immediately prior to such Sale,
reorganization, merger or consolidation own in the aggregate less than fifty percent (50%) of the
outstanding shares of the common stock of the Company. Severance Payment shall be paid in a




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lump sum and shall not be subject to offset for new employment by Executive and there shall be no duty
of Executive to mitigate damages by seeking new employment.




          (c) If the Employment Period is terminated by the Company for “Cause” or is terminated
pursuant to clause (a)(i) above, the Executive shall only be entitled to receive his Base Salary
through the date of termination or expiration and shall not be entitled to any other salary,
compensation or benefits from the Company or its Affiliates thereafter except as required by law.




          (d) Except as otherwise expressly provided herein, all of the Executive’s rights to salary,
bonuses, fringe benefits and other compensation hereunder which accrue or become payable after the
termination or expiration of the Employment Period shall cease upon such termination or expiration,
other than those expressly required under applicable law (such as COBRA). The Company may offset
any amounts the Executive owes it or its’ Affiliates against any amounts it or its Affiliates owes
the Executive hereunder.




          (e) For purposes of this Agreement, “Cause” shall mean; (i) the conviction of a felony
or other crime involving moral turpitude, the entry of a plea of guilty or nolo
contendere to a felony or the commission of any other material act or omission involving
substantial dishonesty or disloyalty which results in substantial economic harm to the Company, or
fraud with respect to the Company or any of its Affiliates; (ii) reporting to work under the
influence of alcohol or illegal drugs, the use of illegal drugs (whether or not at the workplace)
or other repeated conduct causing the Company or any of its Affiliates substantial public disgrace
or disrepute or economic harm; (iii) substantial and repeated failure to perform duties as
reasonably and lawfully directed by the Board in writing and failure to cure within 30 days of
written notice from the Board; (iv) gross negligence or willful misconduct with respect to the
Company or any of its Affiliates or (v) any other material breach of this Agreement.




          (f) For purposes of this Agreement, “Good Reason” shall mean a reduction in Executive’s pay,
benefits, title or responsibilities, except with the express written agreement of the Executive or
a material breach by the Company of the terms of this Agreement. Executive must exercise “Good
Reason” by providing written notice to the Company within four (4) months of the event or events
and shall provide the Company with 60 days to cure.




          5. Covenant Not-To-Disclose. The Company and the Executive recognize that during the
course of Executive’s term of employment with Company pursuant to this Agreement, the Company will
disclose to Executive information concerning the Company 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 the Company and the
Affiliates. The Company and Executive further acknowledge that the Company has, and will, invest
considerable amounts of time, effort and corporate resources in developing such valuable assets and
that disclosure by Executive of such assets to the public shall cause irreparable harm, damage and
loss to the Company and the Affiliates.




          (a) To protect these assets, the Executive agrees that he shall not, during the Restricted
Period, advise or disclose to any person, corporation, firm, partnership or other entity




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whatsoever (except the Company or an Affiliate), or any officer, director, stockholder, partner or associate
of any such corporation, firm partnership or entity any information received from the Company by
the Executive during the course of the Executive’s association with the Company relating to the
business affairs of the Company and the Affiliates including information concerning the Company’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 the Company and the Affiliates, except as permitted by this paragraph 5.




          (b) Executive 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 the Company or any
Affiliate has disclosed to Executive during the course of his employment with the Company.




          (c) In the event the Executive’s employment is terminated, the Executive agrees that, if
requested by the Company, 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 5 shall, except as otherwise provided in this Agreement, survive the
termination of this Agreement.




     Any implication in this paragraph 5 to the contrary notwithstanding, this paragraph 5 hereof
shall not, and shall not be deemed to, prohibit the Executive from disclosing information regarding
the Company that (i) is already public information other than because of any breach of this
paragraph 5 by the Executive; (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;
(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 the Company; and (v) during the course of the Executive’s employment with the Company
disclosure of any of the foregoing as reasonably required by the Executive in the good faith
performance of his duties under this Agreement.



          6. Covenant Not-To-Induce. The Executive 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, solicit, induce or attempt to solicit or induce an employee or other personnel of
the Company and the Affiliates to terminate employment with such party. This paragraph 6 shall,
except as otherwise provided in this Agreement, survive the termination of this Agreement.




          7. Covenant of Non-Disparagement and Cooperation. The Executive agrees that he shall
not, at any time during or following the term of his employment, make any remarks disparaging the
conduct or character of the Company or any of its current or former Affiliates, agents, employees,
officers, directors, shareholders, successors or assigns (in the aggregate, such
persons and entities are referred to herein as the “Protected Persons”); provided, however, that
during the term of his employment, the Company acknowledges and agrees that the Executive may be
required from time to time to make such remarks about Protected Persons for legitimate




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business purposes and if consistent with the discharge of his duties hereunder. In addition, following
termination of his employment hereunder, the Executive agrees to reasonably cooperate with the
Company, at no extra cost, in any litigation or administrative proceedings (e.g., EEOC charges)
involving any matters with which the Company was involved during the Executive’s employment with
the Company. The Company shall reimburse the Executive for travel and other related expenses
approved by the Company incurred in providing such assistance. This paragraph 7 shall survive the
termination of this Agreement.




          8. Covenant Not To Compete. The Company and the Executive acknowledge that, by virtue
of the Executive’s responsibilities and authority as President and Chief Executive Officer of the
Company, he will, during the course of his employment, be instrumental in developing, and will
receive, highly confidential information concerning the Company and the Affiliates, their services,
their trade secrets, their proprietary information, and other information concerning the business
of the Company and the Affiliates, much of which is unavailable to persons of lesser responsibility
and authority. The Executive further acknowledges that the ability of such information to benefit
a competitor or potential competitor of the Company shall cause irreparable harm, damage and loss
to the Company and the Affiliates. To protect the Company and the Affiliates from the Executive’s
using or exploiting this information, the Executive agrees that he shall not, for a period of
twelve (12) months from the date of termination of his employment for any reason (i) perform
substantially similar job duties or functions as those performed for the Company under this
Agreement for any entity engaged in the Business in the United States of America (the “Restricted
Territory”); or (ii) 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 Business in the Restricted Territory wherein the Executive would perform
substantially similar duties or job functions as those performed for the Company under this
Agreement; provided, however, the Executive 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, the Executive acknowledges that he has the ability to earn a
comparable income within or without the Restricted Territory as a manager or executive for persons
or entities not engaged in the Business and that earning a livelihood by working for persons or
entities not engaged in the Business within or without the Restricted Territory would not
constitute a hardship or an unreasonable restriction on the Executive or restrict him from earning
comparable income. This paragraph 8 shall survive termination of this Agreement.




     For the purposes of this Agreement, “Restricted Period” means period commencing as of the
date hereof and ending on that date three (3) years after the termination of the Executive’s
employment with the Company for any reason, whether voluntary or involuntary.



     For the purposes of this Agreement, “Business” means the transportation of automobiles and
light trucks from the manufacturer to retailers and related activities and providing logistics
and distribution services to the new and used vehicle distribution market and automotive industry.



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Mark J. Gendregske Employment Agreement — continued




          9. Inventions and Patents. The Executive acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings, reports and all
similar or related information (whether or not patentable) which relate to the Company’s or any of
its Affiliates’ actual or anticipated business, research and development or existing or future
products or services and which are conceived, developed or made by the Executive while employed by
the Company and its Affiliates (“Work Product”) belong to the Company or such Subsidiary.
The Executive shall promptly disclose such Work Product to the Board and, at the Company’s expense,
perform all actions reasonably requested by the Board (whether during or after the Employment
Period) to establish and confirm such ownership (including, without limitation, assignments,
consents, powers of attorney and other instruments).




          10. Enforcement. If, at the time of enforcement of paragraph 6 or 7 of this
Agreement, a court holds that the restrictions stated herein are unreasonable under circumstances
then existing, the Parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period, scope or area.
Because the Executive’s services are unique and because the Executive has access to Confidential
Information and Work Product, the Parties hereto agree that money damages would not be an adequate
remedy for any breach of this Agreement. Therefore, in the event a breach or threatened breach of
this Agreement, the Company or its successors or assigns, in addition to other rights and remedies
existing in their favor, shall be entitled to specific performance and/or injunctive or other
equitable relief from a court of competent jurisdiction in order to enforce, or prevent any
violations of, the provisions hereof (without posting a bond or other security).




          11. Executive’s Representations. The Executive hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by the Executive do not
and shall not conflict with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which the Executive is a party or by which she is bound;
(ii) the Executive is not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity which conflicts with the Executive’s
duties and responsibilities under this Agreement; and (iii) upon the execution and delivery of this
Agreement by the Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms.




          12. Survival. Paragraphs 4(b) and 5 through 17 shall survive and continue in full
force in accordance with their terms notwithstanding the expiration or termination of the
Employment Period.




          13. Notices. Any notice provided for in this Agreement shall be in writing and shall
be either personally delivered, sent by reputable overnight courier service or mailed by first
class mail, return receipt requested, to the recipient at the address below indicated:









Notices to Executive:




Mark J. Gendregske

7878 Foster Rd.

Clarkston, Michigan 48346




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Mark J. Gendregske Employment Agreement — continued



Notices to the Company:



Allied Holdings, Inc.

160 Clairemont Avenue, Suite 200

Decatur, GA 30030

Attn: General Counsel



or such other address or to the attention of such other person as the recipient party shall have
specified by prior written notice to the sending party. Any notice under this Agreement shall be
deemed to have been given when so delivered, sent or mailed.




          14. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any action in any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.




          15. Complete Agreement. This Agreement and other documents of even date herewith
embody the complete agreement and understanding among the Parties and supersede and preempt any
prior understandings, agreements or representations by or among the Parties, written or oral, which
may have related to the subject matter hereof in any way.




          16. No Strict Construction. The language used in this Agreement shall be deemed to be
the language chosen by the Parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any Party.




          17. Counterparts. This Agreement may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one and the same
agreement.




          18. Successors and Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by the Executive, the Company and their respective heirs, successors
and assigns, except that the Executive may not assign his rights or delegate his duties or
obligations hereunder without the prior written consent of the Company.




          19. Arbitration of Disputes. Should any disputes arise under the terms of this
Agreement, they shall be submitted to the American Arbitration Association (“AAA”) pursuant to the
Employment Arbitration Rules and Mediation Procedures Amended and Effective July 1, 2006. The
hearing shall be held in the Detroit Metropolitan area. The arbitrator shall have authority to
award costs and attorney fees to the prevailing party. The award of the arbitrator
will be entered in any court of competent jurisdiction. The Parties further agree that they
shall not exercise self-help by refusing to comply with any portion of this Agreement should a
claim be made that the other Party has violated the Agreement. Instead, the sole remedy for an
alleged




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Mark J. Gendregske Employment Agreement — continued




breach by either Party shall be made exclusively through the AAA Arbitration
procedure. This does not prohibit the right of the Parties to seek equitable relief from
a court of law pending the outcome of the arbitration process.




          20. Choice of Law. All issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by, and construed in accordance
with, the laws of the State of Michigan, without giving effect to any choice of law or conflict of
law rules or provisions (whether of the State of Michigan or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Michigan.




          21. Amendment and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of the Company (as approved by the Board) and the Executive,
and no course of conduct or course of dealing or failure or delay by any Party hereto in enforcing
or exercising any of the provisions of this Agreement (including, without limitation, the Company’s
right to terminate the Employment Period for Cause) shall affect the validity, binding effect or
enforceability of this Agreement or be deemed to be an implied waiver of any provision of this
Agreement.




          IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
written above.




ALLIED HOLDINGS, INC.




	 	 	 
	 

	 	/s/ Thomas M. Duffy
	 

	 	 
	 

	 	By: Thomas M. Duffy
	Dated: May 11, 2007

	 	Its: Vice President, Secretary and General Counsel
	 
	 	 
	Dated: May 11, 2007

	 	/s/ Mark J. Gendregske
	 

	 	 
	 

	 	Mark J. Gendregske







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