AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "AGREEMENT"), dated as
of October 1, 2001 (the "EFFECTIVE DATE"), is by and between APCOA/Standard
Parking, Inc., a Delaware corporation (the "COMPANY"), and G. Xxxx Xxxxxxx (the
"EXECUTIVE") and is an amendment and restatement of that certain Employment
Agreement previously executed by and between the Executive and the Company as of
the 9th day of October, 2000 (the "PRIOR AGREEMENT").
WHEREAS, 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 predecessors or successors) are referred to
hereinafter as the "PARKING Companies"); and
WHEREAS, prior to the date hereof, the Executive has been employed by the
Company pursuant to the terms of the Prior Agreement; and
WHEREAS, the Company and Executive desire to amend, revise and restate the
Prior Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EMPLOYMENT PERIOD. The Company shall continue to employ the Executive,
and the Executive shall continue to serve the Company, on the terms and
conditions set forth in this Agreement, for the period beginning on the
Effective Date and ending on the second anniversary thereof (the "EMPLOYMENT
PERIOD"), provided, however, that commencing on the date one year after the
Effective Date and on each annual anniversary of such date (each
annual anniversary thereof shall hereinafter be referred to as the "RENEWAL
DATE"), unless previously terminated, the Employment Period shall be
automatically extended so as to terminate two years from the Renewal Date, so
that there is always between one and two years remaining in the Employment
Period, unless 90 days prior to the Renewal Date the Company or the Executive
shall terminate this Agreement by giving notice to the other party that the
Employment Period shall not be so extended (a "NOTICE OF NONRENEWAL").
Notwithstanding any such termination, Section 6 of this Agreement shall remain
in full force and effect.
2. POSITION AND DUTIES. During the Employment Period, the Executive shall
serve as the Executive Vice President and Chief Financial Officer of the
Company, with the duties and responsibilities currently 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 term of this Agreement, engage in any other
business activities that will interfere with the Executive's employment pursuant
to this Agreement. During the Employment Period, the Executive's services shall
be performed primarily in Chicago, Illinois.
3. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive shall
receive an annual base salary ("ANNUAL BASE SALARY") of no less than $254,500,
payable in accordance with the normal payroll practices for executives of the
Company as in effect from
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time to time (but no less frequently than monthly). Such Annual Base Salary
shall be subject to review annually in accordance with the review policies and
practices for executives of the Company 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 the terms and conditions of an annual bonus program to be established
by the Company. Any such annual bonus program shall provide that the Executive's
target bonus ("TARGET ANNUAL BONUS") will be a percentage equal to thirty-five
percent (35%) the Annual Base Salary. Notwithstanding the foregoing, the
Executive's Annual Bonus attributable to the period commencing January 1,2001
and ending December 31, 2001 shall be guaranteed to be no less than thirty-five
percent (35%) of the Executive's Annual Base Salary as in effect for such
period. The Executive's Annual Bonus for 2002 and subsequent calendar years
shall be based upon the achievement of the applicable established performance
targets.
(c) EQUITY PLAN. In the event the Company adopts an equity incentive
plan or program (the "EQUITY PLAN") for its key executives, the Executive shall
be entitled to participate in the Equity Plan from and after the effective date
thereof in accordance with the terms and conditions of such plan.
(d) HOUSING DIFFERENTIAL LOAN. Following the Effective Date and
contingent upon the Executive's execution of a promissory note (substantially in
the form attached hereto as Exhibit A), the Executive shall receive a $200,000
loan from the Company with a repayment period ending on May 1, 2005 (the
"Loan"), which shall bear interest at the Applicable Federal Rate compounded
annually. The principal on the Loan shall be payable in cash on an annual basis
in four equal installments, together with interest on each such installment,
beginning on May 1, 2002 and on each of the next three succeeding
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anniversaries thereof (each such payment date to be referred to herein as an
"ANNUAL PAYMENT DATE"). The foregoing notwithstanding, if the Executive remains
in the continued employment of the Company as of each Annual Payment Date, one
fourth of the principal balance of the Loan and the accrued interest thereon (as
of such Annual Payment Date) 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. In the event the Executive's employment hereunder is
terminated for "Cause" (as hereinafter defined) or the Executive terminates his
employment without Good Reason (as hereinafter defined), the Executive shall be
obligated to repay the remaining principal balance of the Loan and any accrued
and unpaid interest thereon in accordance with the terms of the Loan as
described above; provided, however, that if the Date of Termination does not
coincide with an Annual Payment Date, the repayment of the principal balance of
the Loan and the accrued interest thereon for the year of termination shall be
pro-rated in respect of the portion of such short year that commences on the
date of the Date of Termination and ends on the next following Annual Payment
Date, and the portion of the pro-rated principal balance of the Loan and the
interest thereon with respect to the period commencing on the Annual Payment
Date prior to the Date of Termination and ending on the Date of Termination
shall be forgiven. 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
terminates his employment with Good Reason the remaining principal balance and
any accrued and unpaid interest shall be forgiven.
(e) PAYMENT OF INSURANCE PREMIUM. In addition to the insurance
benefits described in subparagraph 3(f) below, during the Employment Period the
Company agrees to pay the annual premium on an insurance policy or policies on
the life of the Executive, which
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policy or policies will provide an annual cash benefit to the Executive of at
least $100,000 per annum as appropriately adjusted to reflect increases in the
applicable Consumer Price Index, for a period of fifteen years beginning in the
year in which the Executive attains age sixty-five (65) (any one or more of
such policies to be referred to herein as the "POLICY"). The Policy shall be
owned by and entered into in the name of the Executive, and the Company shall
have no right to any proceeds from or any other ownership interest in the
Policy. The Company further agrees that in the event of a termination of the
Executive's employment for any reason other than Cause or the Executive's
voluntary termination of employment without Good Reason, it shall continue to
pay the annual premium on the Policy until the earlier of (i) the Executive's
death or (ii) the date the Executive attains age sixty-five (65).
(f) 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, on the same terms and conditions
as those applicable to peer executives; (ii) the Executive shall be entitled to
four weeks of annual vacation, to be taken in accordance with the vacation
policy as in effect from time to time; (iii) the Executive and/or the
Executive's family, as the case may be, shall be eligible for participation in,
and shall receive all benefits under medical, dental, 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) the Executive shall be entitled to a car
allowance of $500 per month; and (v) the Company shall provide the Executive
with life insurance benefits above its standard benefit package in an amount
equal to $1,000,000 until the Executive attains age 75.
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(g) EXPENSES. Executive shall be reimbursed by the Company for
business expenses incurred on behalf of the Parking Companies in accordance with
the policies and practices of the Company as in effect from time to time.
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. "DISABILITY" means that (i) the Executive has been
unable, for a period of 180 consecutive days, or for periods aggregating 180
business days in any period of twelve months, to perform the Executive's duties
under this Agreement, as a result of physical or mental illness or injury, and
(ii) a physician selected by the Company or its insurers has determined that the
Executive's incapacity is total and permanent. 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 without Cause. "CAUSE" means:
(i) the continued and willful or deliberate failure of the
Executive substantially to perform the Executive's duties, or to
comply with the Executive's obligations, under this Agreement (other
than as a result of physical or mental illness or injury), or
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(ii) illegal conduct or gross misconduct by the Executive, in
either case that is willful and results in material damage to the
business or reputation of the Company.
Upon the occurrence of events constituting Cause as defined in subsection (i) of
this paragraph (b), the Company shall give the Executive advance notice of any
such termination for Cause and shall provide the Executive with a reasonable
opportunity to cure.
(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, or the date on which the Executive
gives the Company notice of a termination of employment, as the case may be.
After the Executive's termination occurs for any reason, in addition to any
other obligations hereunder, the Company shall pay the Executive:
(i) the Executive's Annual Base Salary for the period ending
with the Date of Termination;
(ii) payment for unused vacation days accrued for the year in
which the Executive's termination occurs, as determined in accordance
with the Company policy as in effect from time to time; and
(iii) any other payments or benefits to be provided to the
Executive by the Company pursuant to any employee benefit plans or
arrangements adopted by the Company, to the extent such amounts are
due from the Company. Except as may otherwise be expressly provided to
the contrary in this Agreement, nothing in this Agreement shall be
construed as requiring
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Executive to be treated as employed by the Company for purposes of any
employee benefit plan following the Date of Termination.
5. ADDITIONAL OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) BY THE COMPANY OTHER THAN FOR CAUSE, DEATH OR DISABILITY: If,
during the Employment Period, the Company terminates the Executive's employment,
other than for Cause, death or Disability, but excluding any termination of
employment at the end of the Employment Period (whether or not as a result of a
Notice of Nonrenewal by the Company), the Company shall, for the remainder of
the Employment Period as in effect immediately before the Date of Termination,
continue to pay the Executive the Annual Base Salary and Annual Bonus(es)
through the end of the then-current Employment Period, as and when such amounts
would be paid in accordance with Sections 3(a) and (b) above; provided, that the
amount of each of the Annual Bonus(es) 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/or the Executive's family, at least as favorable
as those that would have been provided to them under clause (f)(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. The payments provided pursuant to this
Section 5(a) are intended as liquidated damages for a termination of the
Executive's employment by the Company other than for Cause or Disability and
shall be the sole and exclusive remedy therefor.
(b) DEATH. If the Executive's employment is terminated by reason of
the Executive's death during the Employment Period, the Company shall make,
within 30 days
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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, (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.
(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 on 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 of 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 (iii) any other vested benefits to
which the Executive is entitled, in each case to the extent not yet paid.
(d) CAUSE: VOLUNTARY TERMINATION. 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
only those amounts specified in Section 4(d), in each case to the extent not yet
paid, and the Company shall have no further obligations under this Agreement.
(e) TERMINATION AFTER A CHANGE IN CONTROL.
(i) If Executive is terminated by the Company during the
three-year period following a Change in Control (as defined in
Section 5(f) below) for any reason other than Cause, then Executive
shall be entitled to the following:
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(A) During the longer of (i) the 18-month period
following his termination and (ii) the remainder of the
Employment Period in effect at the date of termination, and
except to the extent prohibited under the terms of any applicable
insurance policy, he shall continue to be covered under the
Company's welfare benefit plans to the same extent and on the
same terms as those benefits are provided to the Company's active
employees.
(B) He shall receive from the Company an amount (the
"SEVERANCE PAY") equal to the greater of (i) one and one-half
times the sum of (x) the Executive's current Annual Base Salary
plus (y) the amount of any bonus paid to Executive in the
preceding twelve months and (ii) the Annual Base Salary and
Annual Bonuses through the end of the then current Employment
Period (PROVIDED, that the amount of each of the Annual
Bonuses so paid shall equal the Target Annual Bonus). The
Severance Pay amount shall be paid (a) if clause (i) in the
previous sentence applies, over the 18-month period commencing on
the date Executive's employment terminates, in equal monthly or
more frequent installments in accordance with the Company's
payroll schedule or (b) if clause (ii) in the previous sentence
applies, as and when such amounts would be paid in accordance
with Sections 3(a) and (b) above.
The Company's obligation to provide welfare benefit coverage and make severance
payments under this Section 5(c) shall cease with respect to periods after the
earlier to occur of the date of Executive's death, or the date, if any, of the
breach by Executive of the provisions of Section 6.
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(ii) If Executive terminates his employment hereunder
voluntarily following a Change in Control, then Executive shall not be
entitled to Severance Pay; provided, however, that if Executive
terminates his employment for Good Reason (as defined below) during
the three-year period following a Change in Control, such termination
shall not be considered a voluntary termination by Executive and
Executive shall be treated as if he had been terminated by the Company
pursuant to paragraph (i) of this Section 5(e) above. "GOOD REASON"
means, in the event of or following a Change in Control:
(A) without the express written consent of the Executive,
(1) the assignment to the Executive of duties inconsistent in any
substantial respect with the Executive's position, authority or
responsibilities as held, exercised and assigned during the
ninety (90) day period immediately preceding the Change in
Control, or (2) any other substantial adverse change in such
position (including titles, authority or responsibilities) or
significant reduction in salary, unless in either case the change
is warranted by an objective evaluation of Executive's
performance or is related to a bona fide company restructuring;
(B) any failure by the Company to comply with any of the
provisions of this Agreement, other than an insubstantial and
inadvertent failure remedied by the Company promptly after receipt of
notice thereof given by the Executive; or
(C) the Company requires or otherwise takes such action as
would reasonably require the Executive's relocation.
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(f) For purposes of this Agreement, the term "CHANGE IN CONTROL"
shall have the meaning ascribed to it in the Company's subordinated note
indenture, as may be amended, or any change of control or similar provision in
any other subordinated debt of the Company as may hereafter be in effect.
(g) In the event that it shall be necessary for Executive to engage
in litigation in connection with the enforcement of his rights under paragraphs
(i) and (ii) of Section 5(e), he shall be entitled to recover from the Company
the reasonable attorney's fees and other costs incurred in such legal action, in
addition to any other relief to which he may be entitled; provided, however,
that Executive ultimately prevails in such litigation.
6. PROTECTION OF THE COMPANY ASSETS (CONFIDENTIALITY NON-COMPETITION AND
OTHER MATTERS).
(a) 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 operate.
Executive further recognizes and acknowledges that as a result of his employment
with the Parking Companies, 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, but not limited to, (i) information relating to the
Parking Companies' manner and methods of doing business, including, but not
limited to, 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
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otherwise been voluntarily disclosed by any of the Parking Companies; (iii) the
specific confidential terms of management agreements, leases or other business
agreements, including, but not limited to, 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, but not limited to, 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 matters described in this sentence hereafter referred to
as the "TRADE SECRETS").
(b) CONFIDENTIALITY. With respect to Trade Secrets, 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 Secrets in strict confidence and not publish
or otherwise disclose any portion thereof to any person whatsoever
except with the prior written consent of the Parking Companies;
(ii) use all reasonable precautions to assure that the Trade
Secrets are properly protected and kept from unauthorized persons;
(iii) make no use of any Trade Secrets except as is required in
the performance of his duties for the Parking Companies; and
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(iv) upon termination of his employment with the Parking
Companies, whether voluntary or involuntary and regardless of the
reason or cause, or upon the request of the Parking Companies,
promptly return to the Parking Companies any and all documents, and
other things relating to the Trade Secrets, all of which are and shall
remain the sole property of the Parking Companies. The term
"documents" as used in the preceding sentence shall mean all forms of
written or recorded information and shall include, but not be limited
to, 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 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.
(c) 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 Parking Companies, 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 Parking Companies. This agreement does not apply to an
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invention for which no equipment, supplies, facility or trade secret information
of the Parking Companies was used and which was developed entirely on the
Executive's own time, unless (i) the invention relates either to the business of
the Parking Companies 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.
(d) COVENANTS NOT TO COMPETE. The Executive agrees that while he is
employed by the Company and for a period of two (2) years after the date on
which such employment terminates (or eighteen (18) months after the date such
employment terminates if such termination follows a Change in Control), the
Executive shall not, directly or indirectly:
(i) have an ownership interest in (other than ownership of 5%
or less of the outstanding stock of any entity listed on the New York
or American Stock Exchange or included in the National Association of
Securities Dealers Automated Quotation System) any corporation, firm,
joint venture, partnership, proprietorship, or other entity or
association which manages, owns or operates a parking facility that is
competitive with the business of the Parking Companies in any of the
metropolitan areas in which, as of the time Executive's employment
terminates, the Parking Companies own, manage and/or operate one or
more parking facilities (hereinafter the "METROPOLITAN AREAS");
(ii) become employed by, work for, consult with, or assist any
person, corporation, firm, joint venture, partnership, proprietorship,
or any other entity or association that is engaged in a business which
is competitive with the business of the Parking Companies in the
Chicago metropolitan area or in any of the other Metropolitan Areas in
which the Executive has been
15
responsible for performing supervisory or other services on behalf of
any of the Parking Companies within the three (3) years immediately
preceding the termination of his employment;
(iii) contact or solicit business from any client or customer of
the Parking Companies or from any person who is responsible for
referring or who regularly refers business to the Parking Companies;
or
(iv) 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 Parking Companies 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 Parking Companies. 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.
(e) REMEDIES. The Executive acknowledges that the Parking Companies
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
Parking Companies to secure an injunction or other equitable remedy, the parties
agree that said bond need not
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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.
7. SUCCESSORS.
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. As used in this Agreement, "COMPANY" shall mean both
the
17
Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
8. MISCELLANEOUS.
(a) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Illinois without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified except by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications under this Agreement shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
IF TO THE EXECUTIVE:
G. Xxxx Xxxxxxx
0000 Xxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
IF TO THE COMPANY:
APCOA/Standard Parking, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx,
Executive Vice President and General Counsel
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 8. Notices and communications
shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement. If any
18
provision of this Agreement shall be held invalid or unenforceable in part, the
remaining portion of such provision, together with all other provisions of this
Agreement, shall remain valid and enforceable and continue in full force and
effect to the fullest extent consistent with law.
(d) Notwithstanding any other provision of this Agreement, the
Company may withhold from amounts payable under this Agreement all federal,
state, local and foreign taxes that are required to be withheld by applicable
laws or regulations.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of, or to assert any right under, this Agreement
shall not be deemed to be a waiver of such provision or right or of any other
provision of or right under this Agreement.
(f) The Executive and the Company acknowledge that this Agreement
supersedes any other agreement, whether written or oral, between them concerning
the subject matter hereof, including, but not limited to the Prior Agreement.
(g) This Agreement may be executed in several counterparts, each of
which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and
the Company has caused this Agreement to be executed in its name on its behalf,
all as of the day and year first above written.
------------------------------
G. XXXX XXXXXXX
APOCA/STANDARD PARKING, INC.
By:
---------------------------
Its:
---------------------------
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