Exhibit 10.26
EXECUTIVE EMPLOYMENT AGREEMENT
AGREEMENT by and between APCOA/Standard Parking, Inc., a Delaware
corporation (the "Company"), and G. Xxxx Xxxxxxx (the "Executive"), dated as of
the 9th day of October, 2000.
RECITALS
A. The Company is in the business of operating private and public
parking facilities for itself, its subsidiaries, affiliates and others, and as a
consultant and/or manager for parking facilities operated by others throughout
the United States and Canada (the Company and its subsidiaries and affiliates
and other Company-controlled businesses engaged in parking garage management (in
each case including their predecessor's or successor's) are referred to
hereinafter as the "Parking Companies").
B. The Company has determined that it is in the best interest of the
Company to employ the Executive on the terms and conditions set forth below in
this Agreement, and the Executive desires to serve the Company in accordance
with such terms and conditions.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. The Company shall employ the Executive, and
the Executive shall serve the Company, on the terms and conditions set forth in
this Agreement, for a period beginning on October 9, 2000 and ending September
30, 2001 (the "Employment Period"); provided, however, the Employment Period
shall automatically extend for additional terms of one (1) year each
(individually referred to as a "Renewal Period" and in the plural as the
"Renewal Periods") unless the Company or the Executive shall have given notice
in writing of their intention not to renew the Agreement not less than ninety
(90) days prior to the expiration of the Employment Period or any applicable
Renewal Period. The Employment Period, as extended by one or more Renewal
Period, shall hereinafter be deemed to be the Employment Period. Notwithstanding
the termination of this Agreement, the covenants contained in Section 6 shall
remain in full force and effect.
2. POSITION AND DUTIES. During the Employment Period, the Executive
shall serve as Executive Vice President and Chief Financial Officer of the
Company, with the duties, authority and responsibilities as are commensurate
with such position and as are customarily associated with such position. The
Executive shall report directly to the Chief Executive Officer of the Company.
During the Employment Period, and excluding any periods of vacation and sick
leave to which the Executive is entitled, the Executive shall devote full
attention and time during normal business hours to the business and affairs of
the Company and, to the extent necessary to discharge the responsibilities
assigned to the Executive under this Agreement, use the Executive's reasonable
best efforts to carry out such responsibilities faithfully and efficiently. The
Executive shall not, during the terms of this Agreement, engage in any other
business activities that will interfere with the Executive's employment pursuant
to this Agreement.
3. COMPENSATION. (a) BASE SALARY. During the Employment
Period, the Executive shall receive an annual base salary of $225,000 (the
"Annual Base Salary"),
payable in accordance with the Company's normal payroll practice for executives
as in effect from time to time. The Annual Base Salary shall be subject to
review annually in accordance with the Company's review policies and practices
for executives as in effect at the time of any such review.
(b) BONUS. For each calendar year ending during the Employment
Period, the Executive shall be eligible to receive an annual bonus (the
"Annual Bonus"), based upon terms and conditions of an annual bonus program
established by the Company. The annual bonus program presently pays the
Annual Bonus in the month of April following the calendar year in which the
Annual Bonus is earned. Any such annual bonus program shall provide that the
Executive's target bonus ("Target Annual Bonus") will be based on a
percentage of the Annual Base Salary, with the actual amount of the Annual
Bonus determined in accordance with the terms of the annual bonus program.
Notwithstanding the foregoing sentence, for the Employment Period commencing
October 9, 2000 and ending September 30, 2001, the Executive's Annual Bonus
shall not be less than 35% of the Annual Base Salary. In addition, for the
partial calendar year beginning on October 9, 2000 and ending December 31,
2000, the Executive shall receive a pro-rata Annual Bonus at no less than
35% of Annual Base Salary and the Annual Bonus for the calendar year 2001
will be no less than 35% of Annual Base Salary.
(c) STOCK PLAN. The Executive shall participate in any stock awards
or stock options to the same extent and on the same terms as are available
to peer executives. For purposes of this Agreement, the term "peer
executives" shall refer to executive vice presidents of the Company, which
term shall not include executive vice presidents of any subsidiary companies
or affiliates.
(d) RELOCATION LOAN. Contingent upon the Executive's execution of a
Promissory note (substantially in the form attached hereto as Exhibit A),
the Executive shall receive a $10,000 loan from the Company with a term of
one (1) year (the "Loan"), which shall bear interest at the Applicable
Federal Rate compounded annually. The principal amount of the Loan shall be
disbursed to the Executive within one (1) week of the Executive's
commencement of duties in the Company's Chicago, Illinois headquarters. The
principal amount of the Loan and the interest thereon shall be payable in
cash at the end of the 12-month term of the Loan (the "Loan Term");
provided, however, that if the Executive remains in the continual employment
of the Company for the period of the Loan Term the principal balance of the
Loan and the accrued interest thereon shall be forgiven by the Company, and
such forgiven amount shall be treated as additional compensation to the
Executive in the year of such forgiveness. Prior to the end of any calendar
year in which the Company forgives the Loan, the Company shall make the
Executive whole for the federal, state and local income tax consequences of
such forgiveness.
In the event the Executive's employment hereunder is terminated
for "Cause" of the Executive voluntarily terminates his employment prior to
the expiration of the Loan Term the Executive shall be obligated to repay
the remaining principal balance of the Loan and interest thereon in
accordance with the original terms of the Loan. In the event that the
Executive's employment hereunder is terminated for any other reason by the
Company without Cause, including a termination on account of death or
Disability, or in the event the Executive's employment is terminated as a
result of a Corporate Reorganization, as defined, below, the principal
balance and any accrued interest shall be forgiven, and prior to the end of
the calendar year in which such forgiveness occurs, the Company shall make
the Executive whole for any tax consequences to the Executive with respect
to such forgiveness.
(e) OTHER BENEFITS. In addition to the foregoing, during the
Employment Period:
(i) The Executive shall be entitled to participate in savings,
retirement, and fringe benefit plans, practices, policies and programs of
the Company as in effect from time to time, including, but not limited to
the Company's 40 1(K) plan, on the same terms and conditions as those
applicable to peer executives; (ii) the Executive shall be entitled to four
(4) weeks of annual vacation, to be taken in accordance with the Company's
vacation policy as in effect from time to time; and (iii) the Executive and
the Executive's family shall be eligible for participation in, and shall
receive all benefits under medical, disability and other welfare benefit
plans, practices, policies and programs provided by the Company, as in
effect from time to time, on the same terms and conditions as those
applicable to peer executives; (iv) a car allowance of $500 per month; and
(v) life insurance above the Company's standard benefit package of either
$1,500,000 until age 65 or $1,000,000 until age 75.
(4) TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. In the event
of the Executive's death during the Employment Period, the Executive's
employment with the Company shall terminate automatically. The Company, in
its discretion, shall have the right to terminate the Executive's employment
because of the Executive's Disability during the Employment Period. For
purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time basis
for 180 consecutive business days, or for periods aggregating 180 business
days in any period of twelve months, as a result of incapacity due to mental
or physical illness or injury which is determined to be total and permanent
by a physician selected by the Company or its insurers. A termination of the
Executive's employment by the Company for Disability shall be communicated
to the Executive by written notice, and shall be effective on the 30th day
after receipt of such notice by the Executive (the "Disability Effective
Date"), unless the Executive returns to full-time Performance of the
Executive's duties before the Disability Effective Date.
(b) BY THE COMPANY. In addition to termination for Disability, the
Company may terminate the Executive's employment during the Employment
Period for Cause or with Cause. "Cause" means:
(i) in the judgment of the Board of Directors of the Company the
Executive has materially failed for some reason other than illness, injury,
or disability to perform his obligations hereunder on more than one occasion
during any 12-month period following reasonable notice of his failure to
perform; or
(ii) the Executive has: (a) committed either any felony involving
moral turpitude or any crime in the conduct of his official duties which is
adverse to the welfare of the Company; or (b) committed any act of fraud
against the Company, its parent or affiliates or misused his position for
his personal gain or that of any third party; or (c) taken any action (other
than an error in judgment made in the ordinary course of his duties) adverse
to the welfare of the Company, including, but not limited to any violation
of the Company's Code of Business Conduct or any breach of the covenants and
conditions contained in Section 6 hereof.
(c) VOLUNTARILY BY THE EXECUTIVE. The Executive may terminate his
employment by giving written notice thereof to the Company.
(d) DATE OF TERMINATION. The "Date of Termination" means the date of
the Executive's death, the Disability Effective Date, the date on which the
termination of the Executive's employment by the Company for Cause, as set
forth in notice from the Company, is effective, the date that notice of
termination is provided to the Executive from Company of a termination of
the Executive's employment by the Company other than for Cause or
Disability, or the date on which the Executive gives the Company notice of
termination of employment, as the case may be.
(5) OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) BY THE COMPANY
OTHER THAN FOR CAUSE OR DISABILITY. If, during the Employment Period, the
Company terminates the Executive's employment, other than for Cause or
Disability, the Company shall, for the duration of the Employment Period, as
in effect immediately before the Date of Termination, continue to pay the
Executive the Annual Base Salary and the Annual Bonus through the end of
such Employment Period, as and when such amounts would be paid in accordance
with Section 3(a) and (b) above, provided the amount of any Annual Bonus so
paid shall equal the Target Annual Bonus. The Company shall also continue to
provide for the same period welfare benefits to the Executive and the
Executive's family, at least as favorable as those that would have been
provided to them under clause (e)(iii) of Section 3 of this Agreement if the
Executive's employment had continued until the end of the Employment Period,
provided, that during any period when the Executive is eligible to receive
such benefits under another employer-provided plan, the benefits provided by
the Company under this Section 5(a) may be made secondary to those provided
under such other plan and shall pay Executive any accrued but unpaid
vacation pay.
(b) DEATH. If the Executive's employment is terminated by reason of
the Executive death during the Employment Period, the Company shall make,
within 30 days after the Date of Termination, a lump-sum cash payment to the
Executive's estate equal to the sum of (i) the Executive's Annual Base
Salary through the end of the calendar month in which death occurs, (ii) any
earned and unpaid Annual Bonus for any calendar year ended prior to the Date
of Termination and a pro-rated Target Bonus for services to the Date of
Termination, (iii) any accrued but unpaid vacation pay and (iv) any other
vested benefits to which the Executive is entitled, in each case to the
extent not yet paid, except for any death benefit, in which case the death
benefit shall be paid to Executive's estate within seven (7) days following
receipt of any such death benefit by the Company from the insurer.
(c) DISABILITY. In the event the Executive's employment is
terminated by reason of the Executive's Disability during the Employment
Period in accordance with Section 4(a) hereof, the Company shall pay to the
Executive or the Executive's legal representative, as applicable, (i) the
Executive's Annual Base Salary for the duration of the Employment Period in
effect immediately before the Date of Termination, provided that any such
payments made to the Executive shall be reduced by the sum of the amounts,
if any, payable to the Executive under any disability benefit plans o the
Company or under the Social Security disability insurance program, (ii) any
earned and unpaid Annual Bonus for any calendar year ended prior to the Date
of Termination and a prorated Target Bonus for services to the Date of
Termination, and (iii) any other vested benefits to which the Executive is
entitled, in each case to the extent not yet paid, including, but not
limited to accrued but unpaid vacation pay.
(d) CAUSE: VOLUNTARY TERMINATION FOR CORPORATE REORGANIZATION AND
TERMINATION DURING 18-MONTH TERMINATION PERIOD. If the Executive's
employment is terminated by the Company for Cause or the Executive
voluntarily terminates his employment
during the Employment Period, the Company shall pay the Executive (i) the
Annual Base Salary through the Date of Termination (ii) the Annual Bonus for
any calendar year ended prior to the Date of Termination, and (iii) any
other vested benefits to which the Executive is entitled, in each case to
the extent not yet paid, including, but not limited to accrued but unpaid
vacation pay and the Company shall have no further obligations to the
Executive under this Agreement. If the Company terminates the Executive's
employment during the Employment Period following a Corporate Reorganization
or during the first 18 months of the Employment Period (the "18-month
Termination Period"), the Company shall pay the Executive the amounts and
benefits described in Section 5(a) above in connection with a termination by
Company for reason other than Cause or Disability; provided (x) that the
Annual Base Salary, Target Bonus, and benefit continuation period in the
event of a termination by the Company for Corporate Reorganization shall be
one (1) year from the date of such termination, and (y) in addition to any
other right to Annual Base Salary, Annual Bonus and other benefits provided
under this Agreement, the Annual Base Salary, Target Bonus and benefit
continuation period in the event of a termination by the Company during the
18-Month Termination Period, shall be six (6) months from the date of such
termination; and, further provided that the Annual Base Salary amount for
purposes of such payments shall be the amount of the Annual Base Salary in
effect immediately before the occurrence of the Corporate Reorganization or
termination during the 18-month Termination Period, as applicable (the
"Severance Payments"). For purposes of this Agreement "Corporate
Reorganization" shall mean, the decision of the Board of Directors of the
Company to terminate the Executive's employment with the Company within
twelve (12) months following the occurrence of the sale, lease, transfer,
conveyance or other disposition (including by way of merger) of all or
substantially all of the Company or the assets of the Company or any event
which changes control of the Company. Notwithstanding anything to the
contrary contained in this Section 5 or any subparagraph thereunder, the
Company's obligation to pay for the welfare benefits and Severance Payments
shall immediately cease with respect to all applicable time periods
following the date of any breach or threatened breach by Executive of the
provisions of Section 6 hereof.
6. PROTECTION OF COMPANY ASSETS.
(a) TRADE SECRET AND CONFIDENTIAL INFORMATION. The Executive
recognizes and acknowledges that the acquisition and operation of, and the
providing of consulting services for, parking facilities is a unique
enterprise and that there are relatively few firms engaged in these
businesses in the primary areas in which the Parking Companies operates. The
Executive further recognizes and acknowledges that as a result of his
employment with the Parking Companies, the Executive has had and will
continue to have access to confidential information and trade secrets of the
Parking Companies that constitute proprietary information that the Parking
Companies are entitled to protect, which information constitutes special and
unique assets of the Parking Companies, including without limitation (i)
information relating to the Parking Companies' manner and methods of doing
business, including without limitation, strategies for negotiating leases
and management agreements; (ii) the identity of the Parking Companies'
clients, customers, lessors and locations, and the identity of any
individuals or entities having an equity or other economic interest in any
of the Parking Companies to the extent such identity has not otherwise been
voluntarily disclosed by any of the Parking Companies; (iii) the specific
confidential terms of management agreements, leases or other business
agreements, including without limitation the duration of, and the fees, rent
or other payments due thereunder; (iv) the identities of beneficiaries under
land trusts; (v) the business, developments, activities or systems of the
Parking Companies, including without
limitation any marketing or customer service oriented programs in the
development stages or not otherwise known to the general public; (vi)
information concerning the business affairs of any individual or firm doing
business with the Parking Companies; (vii) financial data and the operating
expense structure pertaining to any parking facility owned, operated, leased
or managed by the Parking Companies or for which the Parking Companies have
or are providing consulting services; and (viii) other confidential
information and trade secrets relating to the operation of the Company's
business (the mailers described in this sentence hereafter referred to as
the "Trade Secret and Confidential Information").
(b) CUSTOMER RELATIONSHIPS. The Executive understands and
acknowledges that the Company has expended significant resources over many
years to identify, develop, and maintain its clients. The Executive
additionally acknowledges that the Company's clients have had continuous and
long-standing relationships with the Company and that, as a result of these
close, long-term relationships, the Company possesses significant knowledge
of its clients and their needs. Finally, the Executive acknowledges the
Executive's association and contact with these clients is derived solely
from his employment with the Company. The Executive further acknowledges
that the Company does business throughout the United States and that the
Executive personally has significant contact with the Company customers
solely as a result of his relationship with the Company.
(c) CONFIDENTIALITY. With respect to Trade Secret and Confidential
Information, and except as may be required by the lawful order of a court of
competent jurisdiction, the Executive agrees that he shall:
(i) hold all Trade Secret and Confidential Information in
strict confidence and not publish or otherwise disclose any portion thereof
to any person whatsoever except with the prior written consent of the
Company;
(ii) use all reasonable precautions to assure that the Trade
Secret and Confidential Information are properly protected and kept from
unauthorized persons;
(iii) make no use of any Trade Secret and Confidential Information
except as is required in the performance of his duties for the Company; and
upon termination of his employment with the Company, whether voluntary or
involuntary and regardless of the reason or cause, or upon the request of
the Company, promptly return to the Company any and all documents, and other
things relating to any Trade Secret and Confidential Information, all of
which are and shall remain the sole property of the Company. The term
"documents" as used in the preceding sentence shall mean all forms of
written or recorded information and shall include, without limitation, all
accounts, budgets, compilations, computer records (including, but not
limited to, computer programs, software, disks, diskettes or any other
electronic or magnetic storage media), contracts, correspondence, data,
diagrams, drawings, financial statements, memoranda, microfilm or
microfiche, notes, notebooks, marketing or other plans, printed materials,
records and reports, as well as any and all copies, reproductions or
summaries thereof.
Notwithstanding the above, nothing contained herein shall
restrict the Executive from using, at any time after his termination of
employment with the Company, information which is in the public domain or
knowledge acquired during the course of his employment with the Company
which is generally known to persons of his experience in other companies in
the same industry.
(d) ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS. The Executive agrees
to assign to the Company any and all intellectual property rights including
patents, trademarks, copyright and business plans or systems developed,
authored or conceived by the Executive while so employed and relating to the
business of the Company, and the Executive agrees to cooperate with the
Company's attorneys to perfect ownership rights thereof in the Company or
any one or more of the Company. This agreement does not apply to an
invention for which no equipment, supplies, facility or Trade Secret and
Confidential Information of the Company was used and which was developed
entirely on the Executive's own time, unless (i) the invention relates
either to the business of the Company or to actual or demonstrably
anticipated research or development of the Parking Companies, or (ii) the
invention results from any work performed by the Executive for the Parking
Companies.
(e) INEVITABLE DISCLOSURE. Based upon the Recitals to this Agreement
and the representations the Executive has made in Sections 6(a) and 6(b)
above, the Executive acknowledges that the Company's business is highly
competitive and that it derives significant value from both its Trade Secret
and Confidential Information not being generally known in the marketplace
and from their long-standing near-permanent customer relationships. Based
upon this acknowledgment and his acknowledgments in Sections 6(a) and 6(b),
the Executive further acknowledges that he inevitably would disclose the
Company's Trade Secret and Confidential Information, including trade
secrets, should the Executive serve as director, officer, manager,
supervisor, consultant, independent contractor, owner of greater than 1% of
the stock, representative, agent, or executive (where the Executive's duties
as an employee would involve any level of strategic, advisory, technical,
creative sales, or other similar input) for any person, partnership, joint
venture, firm, corporation, or other enterprise which is a competitor of the
Company engaged in providing parking facility management services because it
would be impossible for the Executive to serve in any of the above
capacities for such a competitor of the Company without using or disclosing
the Company's Trade Secret and Confidential Information, including trade
secrets. The above acknowledgment concerning inevitable disclosure is a
rebuttable presumption. Executive may, in particular circumstances, rebut
the presumption by proving by clear and convincing evidence that the
Executive would not inevitably disclose trade secret or confidential
information were he to accept employment or otherwise act in a capacity that
would arguably violate this Agreement
(f) NON-SOLICITATION. The Executive agrees that while he is employed
by the Company and for a period of eighteen (18) months after the Date of
Termination, the Executive shall not, directly or indirectly:
(i) without first obtaining the express written permission of the
Company's General Counsel which permission may be withheld solely in the
Company's discretion, directly or indirectly contact or solicit business
from any client or customer of the Company with whom the Executive had any
contact or about whom the Executive acquired any Trade Secret or
Confidential Information during his employment with the Company or about
whom the Executive has acquired any information as a result of his
employment with the Company. Likewise, the Executive shall not, without
first obtaining the express written permission of the Company's General
Counsel which permission may be withheld solely in the Company's discretion,
directly or indirectly contact or solicit business from any person
responsible for referring business to the Company or who regularly refers
business to the Company with whom the Executive had any contact or about
whom the Executive acquired any Trade Secret or Confidential Information
during his employment with the Company or about whom the Executive has
acquired any information as a result of his employment with the Company. The
Executive's obligations set forth in this subparagraph are in addition to
those obligations and
representations, including those regarding Trade Secret and Confidential
Information and Inevitable Disclosure set forth elsewhere in this Agreement;
or
(ii) take any action to recruit or to assist in the recruiting or
solicitation for employment of any officer, employee or representative of
the Parking Companies.
It is not the intention of the Company to interfere with
the employment opportunities of former employees except in those situations,
described above, in which such employment would conflict with the legitimate
interests of the Company. If the Executive, after the termination of his
employment hereunder, has any question regarding the applicability of the
above provisions to a potential employment opportunity, the Executive
acknowledges that it is his responsibility to contact the Company so that
the Company may inform the Executive of its position with respect to such
opportunity.
(g) REMEDIES. The Executive acknowledges that the Company would be
irreparably injured by a violation of the covenants of this Section 6 and
agrees that the Company, or any one or more of the Parking Companies, in
addition to any other remedies available to it or them for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, or other equivalent relief, restraining the Executive
from any actual or threatened breach of any of the provisions of this
Section 6. If a bond is required to be posted in order for the Company or
any one or more of the Company to secure an injunction or other equitable
remedy, the parties agree that said bond need not exceed a nominal sum. This
Section shall be applicable regardless of the reason for the Executive's
termination of employment, and independent of any alleged action or alleged
breach of any provision hereby by the Company. If at any time any of the
provisions of this Section 6 shall be determined to be invalid or
unenforceable by reason of being vague or unreasonable as to duration, area,
scope of activity or otherwise, then this Section 6 shall be considered
divisible (with the other provisions to remain in full force and effect) and
the invalid or unenforceable provisions shall become and be deemed to be
immediately amended to include only such time, area, scope of activity and
other restrictions, as shall be determined to be reasonable and enforceable
by the court or other body having jurisdiction over the matter, and the
Executive expressly agrees that this Agreement, as so amended, shall be
valid and binding as though any invalid or unenforceable provision had not
been included herein.
(i) ATTORNEYS' FEES. In the event of litigation in connection with
or concerning the subject matter of this Agreement, the prevailing party
shall be entitled to recover all costs and expenses of litigation incurred
by it, including attorneys' fees and, in the case of the Company, reasonable
compensation for the services of its internal personnel.
7. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement will not affect the validity or enforceability
of any other provision of this Agreement, and this Agreement will be
construed as if such invalid or unenforceable provision were omitted (but
only to the extent that such provision cannot be appropriately reformed or
modified).
8. NOTICES. Any notice which any party shall be required or shall
desire to serve upon the other shall be in writing and shall be delivered
personally or sent by registered or certified mail, postage prepaid, or sent
by facsimile or prepaid overnight courier, to the parties at the addresses
set forth below (or such other addresses as shall be specified by the
parties by
like notice):
In the case of Executive to:
G. Xxxx Xxxxxxx
0000 X. Xxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Xxxx Xxxxxx, Esq.
X'Xxxxxx and Xxxxxx
000 X. Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxxx, XX 00000
In the case of the Company to:
APCOA/Standard Parking, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
9. APPLICABLE LAW. This Agreement shall be construed in accordance
with the laws and decisions of the State of Illinois, without regard to the
conflict of law provisions thereof.
10. NONALIENTATION. The interests of the Executive under this
Agreement are not subject in any manner to anticipation, alienation, sale
transfer, assignment, pledge, encumbrance, attachment, or garnishment by
creditors of the Executive or the Executive's beneficiary.
11. AMENDMENT. This Agreement may be amended or cancelled only by
mutual agreement of the parties in writing without the consent of any other
person.
12. WAIVER OF BREACH. No waiver by any party hereto of a breach of
any provision of this Agreement by any other party, or of compliance with
any condition or provision of this Agreement to be performed by such other
party, will operate or be construed as a waiver of any subsequent breach by
such other party or any similar or dissimilar provisions and conditions at
the same or any prior or subsequent time. The failure of any party hereto to
take any action by reason of such breach will not deprive such party of the
right to take action at any time while such breach continues.
13. SUCCESSORS. This Agreement shall be binding upon, and inure to
the benefit of, the Company and its successors and assigns and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, of all or substantially all of the Company's assets and business.
The Executive's duties hereunder are personal and may not be assigned.
14. ENTIRE AGREEMENT. Except as otherwise noted herein, this
Agreement, constitutes the entire agreement between the parties concerning
the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings,
either oral or in writing, if any, between the parties relating to the
subject matter hereof.
15. ACKNOWLEDGEMENT BY EXECUTIVE. The Executive has read and fully
understands the terms and conditions set forth herein, has had time to
reflect on and consider the benefits and consequences of entering into this
Agreement and has had the opportunity to review the terms hereof with an
attorney or other representative, if he so chooses. The Executive has
executed and delivered this Agreement as his free and voluntary act, after
having determined that the provisions contained herein are of a material
benefit to him, and that the duties and obligations imposed on him hereunder
are fair and reasonable and will not prevent him from earning a livelihood
following the Date of Termination.
IN WITNESS WHEREOF, the Executive and the Company have executed this
Agreement as of the day and year first written above.
APCOA/STANDARD PARKING, INC.
By:
------------------------------
Xxxxx X. Xxxxxxxxx,
Chief Executive Officer
EXECUTIVE:
---------------------------------
G.Xxxx Xxxxxxx
EXHIBIT A
PROMISSORY NOTE
$10,000
October __, 2000
FOR VALUE RECEIVED, the undersigned, G. Xxxx Xxxxxxx (the "Executive"),
hereby promises to pay to the order of APCOA/Standard Parking, Inc., a
Delaware corporation, (the "Company") or to the legal holder of this Note at
the time of payment, the principal sum of Ten Thousand and 00/100 Dollars
($10,000) and interest thereon in lawful money of the United States of
America. All principal and interest on this Note will be due and payable on
October __,2001.
This Note evidences a loan made by the Company to the Executive.
This Note is subject to the following further terms and conditions:
Section 1. PAYMENT. PREPAYMENT AND ACCELERATION.
(a) The term of this Note shall be one (1) year commencing on
October __, 2000 (the "Loan Origination Date"). The principal amount of this
Note and any accrued interest thereon shall be payable in cash on the first
anniversary of the Loan Origination Date (the "Loan Term"); provided,
however, that if the Executive remains in the continual employment of the
Company or any of its affiliated companies for the period of the Loan Term
the original principal balance, together with the interest accrued thereon
shall be forgiven by the Company, such forgiven amount shall be treated as
additional compensation to the Executive in the year of such forgiveness and
the Executive shall be made whole for all federal, state, and local income
tax consequences of any such forgiveness prior to the end of the calendar
year in which such forgiveness occurs.
(b) In the event the Executive's employment with the Company is
terminated for cause, as set forth, defined, and explained in the Employment
Agreement between the Company and the Executive dated as of October 9, 2000
(the "Employment Agreement"), or if the Executive resigns, the Executive
shall be obligated to repay in full the entire outstanding principal balance
of this Note and any accrued and unpaid interest thereon within thirty (30)
days of the date of termination of employment.
(c) In the event the Executive's employment is terminated by reason
of death or permanent disability, as set forth, defined, and explained in
the Employment Agreement, the remaining principal balance of the Note and
any accrued but unpaid interest thereon shall be forgiven, and prior to the
end of the calendar year in which such forgiveness occurs, the Company shall
make the Executive whole for any federal, state and local income tax
consequences in respect to such forgiven amount. For purposes of paragraphs
(b) and (c) of this Section 1, the terms and conditions of the Employment
Agreement shall be incorporated herein by reference and shall govern the
obligations of the Company and the Executive upon a termination of
employment.
(d) All payments and prepayments of the principal and interest of,
and all fees, expenses and other amounts owing in respect of, this Note
shall be made to the Company or its order, or to the legal holder of this
Note or such holder's order, in lawful money of the United States of America
at the principal offices of the Company (or at such other place as the
holder hereof shall notify~' the Executive in writing). The Executive may,
at his option,
prepay this Note in whole or in part at any time or from time to time
without penalty or premium. Upon final payment or forgiveness of the
principal and interest of, and all fees, expenses and other amounts owing in
respect of, this Note it shall be surrendered for cancellation.
Section 2. INTEREST. The unpaid principal balance of this Note
shall bear interest at the Applicable Federal Rate (AFR) on the Loan
Origination Date compounded annually. Except as set forth in Section 1
hereof, accrued interest on the unpaid principal balance of this Note shall
be payable in arrears on each of the Annual Payment Dates. If any amount of
principal or interest payable under this Note is not paid when due, the
default interest rate shall be the rate set forth in the first sentence of
this Section 2 plus two percent (2%).
Section 3. MISCELLANEOUS
(a) The provisions of this Note shall be governed by and construed in
accordance with the laws of the State of Illinois, without regard to the
principles of conflicts of law there.
(b) All notices and other communications hereunder shall be in writing
and will be deemed to have been duly given if delivered or mailed in
accordance with the instructions set forth in the Employment Agreement.
(c) No delay or failure by the holder of this Note in the exercise of
any right or remedy shall constitute a waiver thereof, and no single or
partial exercise by the holder hereof of any right or remedy shall preclude
any other or future exercise thereof or the exercise of any other right or
remedy.
(d) The Executive agrees that the Executive will pay the Company the
amount of any and all costs and expenses, including all reasonable fees and
expenses of counsel, incurred in connection with the exercise or enforcement
of any of the Company's rights under this Note and the failure of the
Executive to perform or observe any of the provisions of this Note. Any such
amounts as provided under this paragraph (d), will be added to the
obligations of the Executive under this Note.
(e) The headings contained in this Note are for reference purposes only
and shall not affect in any way the meaning or interpretation of the
provisions hereof
(f) This Note shall not be assignable without the prior written consent
of the Company.
IN WITNESS WHEREOF, this Note has been duly executed and delivered by the
Executive as of the date first written above.
G. Xxxx Xxxxxxx
Witness:
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