EXHIBIT 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made and entered into
as of the 15th day of May, 2006 by and among Standard Parking Corporation, a
Delaware corporation ("Standard"), D & E Parking, Inc., a California corporation
("Consultant") and Xxxx X. Xxxxx ("Xxxxx") and shall be effective as of May 1,
2007 (the "Commencement Date").
RECITALS
A. Standard is an operator and developer of parking facilities
throughout the United States. Additionally, Standard has begun to provide
property management services, sweeping and scrubbing and security services.
B. Pursuant to the terms of that certain Stock Purchase Agreement dated
May 13, 1998 (the "Purchase Agreement") by and among the Company (formerly known
as APCOA, Inc.), S & S Parking, Inc. ("S & S"), Xxxxx and Xxxxxx X. Xxxxxxx
("Xxxxxxx"), the Company purchased all of the outstanding shares of S & S owned
by Xxxxx and Xxxxxxx, which purchase was made effective as of May 1, 1998.
C. Executive Parking Industries, L.L.C. ("Executive Parking"), an
affiliate of S & S and Standard, had, pursuant to the terms of that certain
Management and Non-Competition Agreement dated as of December 31, 1996, executed
by and among Executive Parking, S & S and Xxxxx and Xxxxxxx (the "First
Executive Management Agreement"), previously engaged Consultant and Xxxxx and
Xxxxxxx to perform and oversee various management consulting duties with respect
to the parking operations of Executive Parking.
D. S & S assigned all its rights, duties and obligations under the
First Executive Management Agreement to Consultant, a corporation owned
entirely, either directly or indirectly, by Xxxxx and Xxxxxxx, pursuant to that
certain Assignment and Assumption of Management and Non-Competition Agreement by
and between S & S and Consultant, effective as of December 31, 1996.
F. Pursuant to the provisions of the Purchase Agreement, Consultant and
Xxxxx and Xxxxxxx, individually and personally, agreed to continue to provide
certain management consulting services to the Standard pursuant to that certain
Executive Parking Management Agreement dated May 1, 1998, by and among Standard,
Consultant, Xxxxxxx and Xxxxx (the "Second Executive Management Agreement").
G. The term of the Second Executive Management Agreement commenced
on May 13, 1998 and is scheduled to terminate on April 30, 2007.
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H. Standard desires to ensure the continued availability to Standard of
the management consulting services provided by Consultant and Xxxxx in
connection with the business of Standard following the termination of the Second
Executive Management Agreement on April 30, 2007.
I. Consultant desires to be retained by Standard and provide the
management consulting services described herein on the terms and conditions
described hereafter.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. RETENTION OF CONSULTANT. Effective as of the Commencement Date,
Standard agrees to retain Consultant, and Consultant agrees to serve as an
independent consultant to Standard on the terms and conditions set forth herein.
2. DUTIES. Consultant agrees to diligently and in good faith render
advice, counsel and direction to Standard and its subsidiaries and affiliates
(collectively "Standard") in the promotion and development of new vertical
markets, including security services, garage sweeping and scrubbing and property
management. Consultant shall also, as requested by Standard, provide advice and
counsel with respect to the development of Standard's business in the Hawaiian
Islands. Consultant's duties shall also include contacting persons who own,
manage or control parking facilities and consulting and advising Standard on
special projects as may be agreed upon, from time to time, by the parties
hereto. For purposes of this Agreement all references herein to "subsidiaries"
or "affiliates" of Standard shall be deemed to include subsidiaries or
affiliates now or hereafter existing.
3. TERM. This Agreement shall commence on the Commencement Date and
shall continue for a term of three (3) years ending on April 30, 2010 (the
"Consulting Term").
4. RETAINER & CONSULTING FEES.
a. Consultant shall be paid a retainer (the "Retainer") of
$250,000 per year, payable at the rate of $20,833.33 per month.
b. In addition to the Retainer, Consultant shall also be
entitled to a consulting fee (the "Consulting Fee") of up to $50,000
per year, based on an annual program established for Consultant by the
President and Chief Executive Officer of Standard based upon attainment
of agreed development goals for new vertical markets.
c. The Retainer and Consulting Fee represent and constitute
the entire financial obligation of Standard to Consultant, and
Consultant agrees that it shall not be entitled to any other
compensation.
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5. AUTHORIZED EXPENSES/REIMBURSEMENT. Standard will reimburse
Consultant for reasonable business expenses incurred by Consultant in connection
with the performance of its duties outlined herein. Any such expense
reimbursement requested by Consultant during the term shall be expressly
conditioned upon Consultant receiving advance approval from the Executive Vice
President of Standard then having operational responsibility for the Western
Region and documented receipts showing persons entertained, company affiliation
and business purpose in accordance with the regulations of the Internal Revenue
Service as then in effect.
6. RELATIONSHIP. Consultant is retained hereunder only for the purpose
and to the extent set forth in this Agreement and its relationship to Standard
is that of an independent contractor. The personnel performing services under
this Agreement, including Xxxxx shall at all times be under Consultant's
exclusive direction and control and shall be employees of Consultant and not
Standard. Consultant shall pay all wages, salaries, and other amounts due his
employees in connection with this Agreement and shall be responsible for all
reports and obligations respecting them relating to social security, income tax
withholding, unemployment compensation, workers' compensation, and similar
payroll reporting and employment matters.
7. BENEFITS. Except for those options to purchase an aggregate of 8,
260.87 shares of Standard stock granted to Xxxxx as a Key Non-Employee (as
defined in the Standard Long Term Incentive Plan effective as of May 1, 2004)
pursuant to a certain Non-Statutory Stock Option Agreement dated May 27, 2004,
and the Non-Statutory Stock Option Agreement dated as of May 2, 2006, neither
Consultant or Xxxxx shall acquire any rights under any pension, stock option,
group insurance or any other benefit plans of Standard by reason of this
Agreement.
8. ASSIGNMENT. This Agreement may not be assigned by Consultant or any
part of the services to be provided by Consultant subcontracted without the
express written consent and approval of Standard. Xxxxx acknowledges and agrees
that this is a personal service contract and the services he is to provide
hereunder are unique and personal and may not be assigned by Xxxxx or any of his
duties delegated, without the express written consent and approval of Standard.
Standard may assign this Agreement and the Agreement shall be binding upon and
inure to the benefit of any successor or assignee of Standard.
9. INDEMNIFICATION. Consultant and Xxxxx shall indemnify, defend, and
hold harmless Standard from and against all claims and actions, and all expenses
incidental to such claims or actions, based upon or arising out of damage to
property or injuries to persons or other tortuous acts caused or contributed to
by Consultant, Xxxxx or anyone acting under its or his direction or control or
in its or his behalf in the course of the performance under this Agreement,
provided the aforesaid indemnity and hold harmless agreement of Consultant and
Xxxxx shall not be applicable to any liability based upon the negligence of
Standard. This Section 9 and the indemnity obligation of Consultant and Xxxxx
shall survive the termination of this Agreement for any reason.
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10. NOTICES. Any notice or communications to be given shall be in
writing and shall be served personally, by express courier, facsimile copy, or
mailed by United States registered or certified mail, return receipt requested,
to the following addresses:
To : Standard Parking Corporation
Attn: Legal Department
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax # (000) 000-0000
To Consultant
& Xxxxx: Xx. Xxxx X Xxxxx
00000 Xxxxx Xxxx
Xxxxx, XX 00000
11. COVENANTS AGAINST UNFAIR COMPETITION AND DISCLOSURE OF CONFIDENTIAL
INFORMATION.
a. During the term of this Agreement, Consultant, Xxxxx and,
as applicable, its and his partners, associates, employees and/or
affiliates (collectively hereinafter referred to as "Responsible
Parties") will have access to and will gain knowledge with respect to
trade secrets and private and secret processes of Standard,
confidential information concerning the financial statements and
operations of Standard, its sales and marketing activities and
procedures, its bidding techniques, its design and construction
techniques, product research and engineering data, its customer lists
of owners of parking facilities, or credit and financial data
concerning such customers or potential customers (in the aggregate
referred to hereinafter as "Secret and Confidential Information").
Consultant and Xxxxx acknowledge that the Secret and Confidential
Information constitutes a valuable, special and unique asset of
Standard, to which Standard has the right to retain and hereby does
retain all of its proprietary interests. However, access to and
knowledge of the Secret and Confidential Information is essential to
the performance of Consultant's and Xxxxx'x services for Standard. In
recognition of this fact, Consultant and Xxxxx agree that neither the
Consultant, Xxxxx nor any of the Responsible Parties will, during or
after the Consulting Term, disclose or divulge any of such Secret and
Confidential Information to any person, firm, corporation, association
or other entity for any reason or purpose whatsoever (except as
necessary in the performance of Consultant's and Xxxxx'x duties
hereunder) or make use of any of the Secret and Confidential
Information for its or his own purpose or those of the Responsible
Parties.
b. Consultant and Xxxxx acknowledge and agree that the remedy
at law for any breach of this Section 11 will be inadequate and that
the damages flowing from such breach are not readily measurable in
monetary terms. Accordingly, it is acknowledged that Standard shall be
entitled, among other remedies, to immediate injunctive relief for any
breach and, if the court so permits, to obtain a temporary order
restraining any threatened or further breach. This covenant shall
nevertheless, if breached, give rise to monetary damages, if any, in
accordance with the other provisions of this Agreement. Upon the breach
or threatened breach, Standard shall be relieved of any and all
obligations to pay any Retainer or Consulting Fee then due and owing or
to become due and owing to Consultant and/or Xxxxx.
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c. The covenants on the part of Consultant and Xxxxx set forth
in this Section 11 shall be construed as agreements independent of any
other provisions of this Agreement, and the existence of any claim or
cause of action of the Consultant and/or Xxxxx against Standard,
whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by Standard of these covenants.
12. DEATH OR DISABILITY OF XXXXX. In the event of the death or
disability (as determined by Standard in its sole discretion) of Xxxxx occurring
during the Consulting Term, this Agreement shall be deemed terminated upon
notice from Standard. Any Retainer or Consulting Fees earned through he date of
termination shall be paid to Xxxxx or Xxxxx'x beneficiaries, as applicable, in
accordance with Section 4 hereof.
13. REPRESENTATIONS BY CONSULTANT. In representing Standard to third
parties, Consultant, Xxxxx or any of the Responsible Parties, shall not
represent itself, himself or themselves as having any authority to bind or
commit Standard to any contract, to invest funds, or to extend a line of credit
in the name of Standard.
14. TERMINATION. In addition to the termination rights set forth in
Section 3 herein, this Agreement may be terminated by either party if the other
party defaults in any of its obligations hereunder, and fails to cure such
default within fifteen (15) days following receipt of written notice thereof.
Provided, however, a violation by Consultant, Xxxxx and/or the Responsible
Parties of Section 11 herein shall constitute grounds for immediate termination
of this Agreement by Standard and forfeiture of any Retainer or Consulting Fees
and/or other sums due or to become due to Consultant hereunder.
15. INVALID PROVISIONS. Should any portion of this Agreement, for any
reason, be declared by a court of competent jurisdiction to be unreasonable or
invalid, any such unreasonable portion shall be enforceable to the extent deemed
reasonable by such court and any such invalidity shall not affect the remaining
portion of this Agreement, which remaining portions shall continue in full force
and effect as if this Agreement had been executed with the invalid portion
thereof eliminated; it being the intention of the parties that they would have
executed the remaining portion of this Agreement without including any such
invalid portion.
16. GOVERNING LAW AND METHOD OF AMENDMENT. This Agreement shall be
governed by and construed in accordance with the laws of the State of California
and contains the entire understanding and agreement between the parties and
shall not be amended, modified or supplemented, except by written agreement by
the parties hereto.
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17. INTEGRATION. This Agreement and the covenants and agreements
contained in the Second Executive Management Agreement that by their terms
survive the termination of the Second Executive Management Agreement, including
but not limited to Section 2.3 (a) and (b) and Sections 5.1, 5.2 and 5.3 (the
"Continuing Covenants") represent the entire agreements of the parties with
respect to the subject matter hereof. Consultant and Xxxxx expressly reaffirm
the continued validity of the Continuing Covenants and affirm that these
covenants were essential conditions to the acquisition by Standard of Xxxxx'x
ownership interest in Executive Parking and he acknowledges and reaffirms that
the restrictions in Section 2.3 are reasonable protections under the
circumstances as contemplated in the Second Executive Management Agreement and
affirmed by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date first above written.
STANDARD PARKING CORPORATION
By:________________________________
Xxxxx X. Xxxxxxx
CONSULTANT:
By: _______________________________
-----------------------------------
Name:
-----------------------------------
Title:
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Xxxx X. Xxxxx, Individually
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