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Exhibit 10.8
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed as of the 1st day of July, 1995 by and
between APCOA, INC., a Delaware corporation with offices at 00000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxxx 00000 (the "Company"), and XXXXX X. XxXXXXX (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of operating and
managing open air parking lots and indoor garages and ramps for the purpose of
parking motor vehicles on a leasehold, license, concession or management fee
basis through the United States under agreement with municipalities, owners of
properties, and/or otherwise (the "Business of the Company"); and
WHEREAS, the Executive has been employed by the Company in a
management capacity for several years and during the course of his employment,
the Executive has become an experienced and valuable employee and is
knowledgeable with respect to the Business of the Company, its trade secrets,
customers, market areas, sources of supply and manner of doing business; and
WHEREAS, the Company desires to continue to employ the Executive and
the Executive desires to continue to work for the Company upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises hereto and the
agreements and covenants hereinafter contained, the parties hereto, intending to
be legally bound, mutually agree as follows:
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1. Employment and Duties.
The Company hereby employs the Executive to serve as Executive Vice
President and Chief Operating Officer of the Company (or under such title as the
Chief Executive Officer may hereafter assign to him). The Executive hereby
accepts employment upon the terms and conditions hereinafter set forth. The
Executive shall be responsible for operations of the Company as set forth and
prescribed by Company operating procedure and policy, corporate standards, and
contractual guidelines. He shall report to the President and Chief Executive
Officer and perform such duties as may be reasonably assigned to him by such
officer. The Executive agrees to comply in all material respects with the
Standards of Conduct set forth in Exhibit A hereof ("Standards of Conduct"). The
Executive shall devote his entire time, attention and energies to the Business
of the Company, and 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.
2. Term.
(a) The term of this Agreement shall be for a period three (3) years
commencing on July 1, 1995 and ending on June 30, 1998.
(b) If this Agreement has not been terminated as set forth below in
Section 4 prior to June 30, 1998, and neither party hereto has given
written notice to the other party by April 30, 1998 of its desire to have
this Agreement terminate at the end of its original term (June 30, 1998),
this Agreement shall continue in full force and effect for an additional
one-year period following the end of its original term on June 30, 1998,
and the
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same procedure shall apply mutatis mutandis to any extended term of this
Agreement with respect to periods ending on June 30 in any year after
1998.
3. Compensation and Other Benefits.
For the services to be rendered by him pursuant to this Agreement,
the Company agrees to provide the Executive, so long as he shall be employed by
the Company, the following compensation and benefits:
(a) Salary at the rate of not less than $165,000.00 per annum ("Base
Salary"), payable not less often than monthly in equal installments at the
end of each month. The Base Salary figure shall be reviewed annually and
may be increased at the sole discretion of the Chief Executive Officer.
Any such increase in the Base Salary shall be deemed for all purposes
hereunder to be an amendment to this Agreement and this Agreement as so
amended shall remain in effect until otherwise terminated as provided
herein.
(b) Such bonuses as the Executive may have earned under the
Executive Bonus Plan set forth in Exhibit B hereof.
(c) Group health and welfare coverages, often fringe benefits such
as are enjoyed by senior executives of the Company generally, and such
other emoluments and fringe benefits as shall be determined by the Company
from time to time.
(d) Four (4) weeks of vacation annually during which time the
Executive's compensation will be paid in full and all other benefits under
this Agreement shall continue to be provided to him.
(e) The Company will furnish the Executive with an automobile, will
provide appropriate insurance coverage for such automobile, and will
reimburse the Executive for
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all gasoline and maintenance costs relating to such automobile. Any such
reimbursement shall be conditioned upon the Executive presenting to the
Company, in accordance with applicable Company policies and procedures, an
itemized account concerning his use of the automobile and distinguishing
between use in connection with the Business of the Company and otherwise.
(f) The Company will reimburse the Executive for reasonable business
expenses incurred by the Executive relating to the conduct of the Business
of the Company. Any such expense reimbursement shall be conditioned upon
the Executive presenting to the Company, in accordance with applicable
Company policies and procedures, an itemized account of such expenses with
supporting documents. Reimbursable expenses shall include reasonable and
necessary expenses for entertainment, travel, meals and hotel
accommodations.
(g) The Executive shall be provided with directors and officers
liability insurance coverage to the same extent as the other Directors
and/or senior officers of the Company, and shall be indemnified by the
Company to the full extent permitted by law against liability claims
arising out of his activities as an employee of the Company or a member of
the Board.
(h) The Company will provide a Supplemental Pension Plan as
described in Exhibit C.
4. Termination of Agreement.
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(a) This Agreement shall terminate upon the death of the Executive.
Upon the Executive's death, a beneficiary (the "Beneficiary") designated
by the Executive as prescribed in Section 12 shall be entitled to receive:
(i) the amount of the Executive's Base Salary through the date
of his death;
(ii) any accrued but unpaid amount under Section 3(b) and the
amount determined under Section 3(b) hereof for the Company's fiscal
year in which the Executive's death occurs as though the Executive
had survived and continued to work for the Company pursuant to this
Agreement through the end of such fiscal year, payable at the time
prescribed in Exhibit B; and
(iii) an aggregate amount equal to the sum of (A) the annual
Base Salary at the time of the Executive's death, and (B) $9,600.00
(which represents the estimated annual value of the Executive's
right to use of an automobile provided by the Company and related
benefits described in Section 3(e) hereof), payable in twelve (12)
equal monthly installments commencing on the first day of the month
next following the Executive's death.
In addition, for a period of twelve (12) months following the Executive's
death, (a) the Company shall continue to provide the benefits under
Section 3(c) to such persons who would have been entitled to such benefits
had the Executive survived and continued to be employed by the Company
hereunder for such twelve (12) month period.
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(b) This Agreement shall terminate in the event of the Executive's
termination of employment because of disability (as defined below). In
such event, the Executive shall be entitled to receive:
(i) the amount of the Executive's Base Salary through the date
of his termination of employment;
(ii) any accrued but unpaid amount under Section 3(b) and the
amount determined under Section 3(b) hereof for the Company's fiscal
year in which the Executive's disability occurs as though the
Executive has continued to work for the Company pursuant to this
Agreement through the end of such fiscal year, payable at the time
prescribed in Exhibit B; and
(iii) an aggregate amount equal to the sum of (A) the annual
Base Salary at the time of the Executive's disability and (B)
$9,600.00 (which represents the estimated annual value of the
Executive's right to use of an automobile provided by the Company
and related benefits described in Section 3(e) hereof), payable in
twelve (12) equal monthly installments commencing on the first day
of the month next following the Executive's termination of
employment; provided, however, that such payments shall be reduced
by any amounts payable to the Executive under any disability benefit
program (whether or not insured) maintained by the Company.
In addition, for a period of twelve (12) months following the Executive's
termination of employment because of disability, the Company shall
continue to provide the benefits under Section 3(c) to such persons
(including the Executive) who would have been
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entitled to such benefits had the Executive continued to be employed by
the Company for such twelve (12) month period.
For purposes of this Agreement, "disability" shall mean any physical
or mental impairment or disability which prevents the Executive from performing
his duties under this Agreement for a period of at least one hundred twenty
(120) days and which is expected to be of permanent duration. A determination of
whether the Executive is disabled shall be made by two licensed physicians, one
appointed by the Board of Directors and one appointed by the Executive. In the
event the two physicians are unable to agree with respect to whether the
Executive is disabled, the determination of whether the Executive is disabled
shall be made by a third duly licensed physician chosen by the two physicians
previously appointed.
(c) This Agreement shall terminate sixty (60) days following the
date the Executive receives notice from the Company that it desires to
terminate this Agreement. In the event that this Agreement is terminated
pursuant to the preceding sentence and without Cause (as defined in
subsection (e) below), the Executive shall be entitled to receive:
(i) an aggregate amount equal to the greater of either (A) the
Annual Base Salary at the time this Agreement terminates or (B) the
aggregate amount payable to the Executive under the Company's
Severance Benefit Policy, payable in twelve (12) equal monthly
installments commencing on the first day of the month coinciding
with or next following the date this Agreement terminates;
(ii) any accrued but unpaid amount under Section 3(b) payable
at the time prescribed in Exhibit B;
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(iii) not later than the 15th day of the fourth month
following the close of the Company's fiscal year in which this
Agreement terminates, an amount equal to the amount determined under
Section 3(b) hereof for the Company's fiscal year in which this
Agreement terminates (the "Termination Bonus"), determined as though
the Executive continued to be employed by the Company through the
end of such fiscal year, multiplied by a fraction, the numerator of
which equals the number of days remaining in such fiscal year
following the date this Agreement terminates plus 365, and the
denominator of which equals 365;
(iv) in the event this Agreement was scheduled to terminate
under Section 2 hereof after the first anniversary of the date this
Agreement terminates under this Section 4(c), then during the period
commencing on the first anniversary of the date this Agreement
terminates under this Section 4(c) and ending on the last day of the
month in which occurs the date this Agreement was scheduled to
terminate under Section 2 hereof, the Executive shall be entitled to
receive each month, commencing with the month which coincides with
or next follows the first anniversary of the date this Agreement
terminates, an amount equal to the sum of (a) one-twelfth (1/12) of
his annual Base Salary plus (b) one-twelfth (1/12) of the
Termination Bonus, reduced by any salary or bonus he receives in any
such month with respect to performing any of the acts described in
the second sentence of Section 6(a) hereof;
(v) for a period of twelve months following the Executive's
termination of employment, the Company shall continue to provide the
benefits
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under Sections 3(c) and 3(e) to such persons (including the
Executive) who would have been entitled to such benefits had the
Executive continued to be employed by the Company for such
twelve-month period but only to the extent provided by a successor
employer; provided, however, that any accounting the Executive is
required to provide to the Company under Section 3(e) need not
distinguish between the use of the automobile in connection with the
Business of the Company and other use.
In the event this Agreement is terminated pursuant to the first
sentence of this subsection (c) because the Company discharges the Executive for
Cause (as defined in subsection (e) below), the Executive shall be entitled to
receive only his Base Salary through the date of his termination of employment
and the Company will have no further obligation to Executive under this
Agreement or otherwise.
(d) In the event of the termination of this Agreement because of the
Executive's voluntary termination of employment for some reason other than
death or disability, the Executive shall be entitled to receive only his
Base Salary through the date of his termination of employment and the
Company will have no further obligations to Executive under this Agreement
or otherwise.
(e) "Cause" as used in this Agreement shall mean that either:
(i) in the judgment of the Board of Directors of the Company,
ascertained by a majority vote, the Executive has materially failed
for some reason other than illness, injury, or disability to perform
his obligations hereunder; or
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(ii) the Executive has: (a) committed either any felony
involving moral turpitude or any crime in the conduct of his
official duties which is materially adverse to the welfare of the
Company; or (b) committed any material act of fraud against the
Company, its parent or affiliates, or materially misused his
position for his personal gain or that of any third party; or (c)
taken any action (other than an error judgment made in the ordinary
course of his duties) materially adverse to the welfare of the
Company, including, but not limited to, any violation of the
Standards of Conduct attached hereto or any breach of the covenants
and conditions contained in Sections 5 and 6 hereof.
5. Confidentiality and Disclosure of Information.
(a) The Executive, during his tenure as an officer and employee of
the Company, has had and will have access to, and has gained and will gain
knowledge with respect to the Company's trade secrets, private and secret
processes, as they may exist from time to time, and confidential
information concerning its financial statements and operations conducted
by the Company, its sales and marketing activities and procedures, its
bidding techniques, its design and construction techniques, its customer
list 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"). The
Executive acknowledges that such information constitutes a valuable,
special and unique asset of the Company as to which the Company has the
right to retain and hereby does retain all of its proprietary interests.
However, access to and knowledge of such Secret and Confidential
Information is essential to the performance of the Executive's services
for the Company. In recognition of this fact, the Executive agrees
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that he will not, during or after his employment with the Company,
disclose any of such Secret and Confidential Information to any person,
firm, corporation, association or other entity for any reason or purposes
whatsoever or make use of any such Secret and Confidential Information for
his own purposes or those of another. The provisions contained in this
subsection (a) shall also apply to information obtained by the Executive
in the course of his employment by the Company with respect to the
Company's subsidiary and affiliated companies.
(b) The Executive shall promptly disclose, grant and assign to the
Company for its sole use and benefit any and all inventions, improvements,
technical information and suggestions relating to the Business of the
Company (in the aggregate referred to as the "Creations") which the
Executive has or may conceive, develop or acquire during his employment
(whether or not during the usual working hours) together with all patent
applications, letters patent, copyrights and reissues thereof that may, at
any time, be granted for or upon any of the Creations. At all times during
and after his employment, the Executive shall promptly execute any and all
documents requested to vest title to any and all of the Creations in the
Company and to enable it to obtain and maintain the entire right and title
thereto throughout the world and render to the Company, at its expenses,
any and all assistance required to protect its legal rights thereto.
6. Restrictive Covenant.
(a) The Executive recognizes that the Company is relying on its
extensive experience, knowledge, ability and contacts in the Business of
the Company in entering into this Agreement. For this reason, the
Executive covenants and agrees that during the
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period of his employment by the Company and, if his Agreement terminates
pursuant to either Section 4(b), or 4(c) with Cause, or 4(d) hereof, for a
period of one year immediately following the termination of this Agreement
he shall not have any direct or indirect ownership or other financial
interest in, or in any manner become interested in (as principal, agent,
consultant, advisor, officer, director, employee or otherwise), any
business which competes with the Business of the Company in the geographic
market in which the Company is then operating, or solicit business
directly or indirectly on behalf of such competing business. Nothing
herein shall preclude the Executive from being a member of or servicing as
an officer or director of any trade association or from owning, of record
or beneficially, in the aggregate up to five percent (5%) of any issue of
securities of a publicly traded company.
(b) Notwithstanding anything to the contrary set forth in Section
13(b) hereof, any dispute between the parties with respect to the
interpretation or enforceability of Section 6(a) hereof (Restrictive
Covenant) as it applies to a termination for Cause under Section 4(c)
hereof or any dispute with respect to any amount payable under Section
4(c)(iv) hereof which cannot be settled amicably by the parties hereto
shall be settled by final and binding arbitration in Cleveland, Ohio in
accordance with the rules of arbitration of the American Arbitration
Association.
7. Remedies.
It is recognized by the Executive that a special and confidential
relationship exists between the Company and the Executive because of his
knowledge, expertise and judgment and the dependency of the Company on his
knowledge, expertise and judgment. The Executive
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agrees that the remedy at law for any breach or unthreatened breach of the
covenants set forth in Sections 5 and 6 will be inadequate and that any breach
or attempted breach would cause such immediate and permanent damage as would be
irreparable and the exact amount of which would be impossible to ascertain. The
Executive further agrees that in the event of any such breach or threatened
breach by the Executive, in addition to any and all other legal and equitable
remedies available, the Company may have any such actions enjoined by any court
authorized by law to take such action.
8. Physical Examination.
The Executive shall undergo an annual physical examination. The cost
of such physical examination shall be borne by the Company. A written report of
the results of such physical shall be submitted to the Chief Executive Officer
of the Company.
9. Assignment.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company. The performance of the Executive
hereunder is personal and nonassignable.
10. Invalidity.
(a) The territorial, time and other limitations contained in
Sections 5 and 6 are reasonable and properly required for the adequate
protection of the Business of the Company, and in the event that anyone or
more of such territorial, time or other limitation is found to be
unreasonable or otherwise invalid in any jurisdiction, in whole or in
part, the parties acknowledge agree that such limitation shall remain and
be valid in all other jurisdictions.
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(b) If any provision, term, clause or part thereof in this Agreement
is valid, it shall not affect the remainder of said provision, term or
clause of this Agreement, but said remainder shall be binding and
effective against both parties hereto.
11. Representations and Warranties of the Parties.
(a) The Company represents and warrants to the Executive that (i)
the Company is a corporation duly organized and validly existing and in
good standing under the laws of the State of Delaware; and (ii) the
Company has the power and authority to enter into and carry out this
Agreement, and there exists no contractual or other restriction upon its
so doing.
(b) The Executive represents and warrants to the Company that there
exists no contractual or other restriction upon his entering into and
carrying out this Agreement.
12. Post-Mortem Payments; Designation of Beneficiary.
In the event that, following the termination of the Executive's
employment with the Company, the Executive is entitled to receive any payments
pursuant to this Agreement and the Executive dies, such payments shall be made
to the Executive's beneficiary designated hereunder. At any time after the
execution of this Agreement, the Executive may prepare, execute, and file with
the Secretary of the Company a copy of the Designation of Beneficiary form
attached to this Agreement as Exhibit D. The Executive shall thereafter be free
to amend, alter or change such form; provided, however, that any such amendment,
alteration or change shall be made by filing a new Designation of Beneficiary
form with the Secretary of the Company. In the event the Executive fails to
designate a beneficiary, following the death of the Executive all payments of
the amounts specified by this Agreement which would have been paid
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to the Executive's designated beneficiary pursuant to this Agreement shall
instead be paid to the Executive's spouse, if any, if she survives the Executive
or, if there is no spouse or she does not survive the Executive, to the
Executive's estate.
13. Miscellaneous.
(a) This Agreement, including its attachments, contains the entire
agreement between the parties and incorporates and supersedes any and all
prior discussions or agreements the parties may have had with respect to
the terms of the Executive's employment with the Company. This Agreement
may be not be changed orally, but only by a writing signed by each of the
parties. The terms or covenants of this Agreement may be waived only by a
written instrument specifically referring to this Agreement and executed
by the party waiving compliance. The failure of a party at any time, or
from time to time, to require performance of any of the other party's
obligations under this Agreement shall in no manner affect the waiving
party's right to enforce any provisions of this Agreement at a subsequent
time, and the waiver by any party of any right arising out of any breach
by the other party shall not be construed as a waiver of any right arising
out of any subsequent breach.
(b) This Agreement has been executed in the State of Ohio and shall
be governed and interpreted in accordance with the laws of the State of
Ohio without regard to conflict of law provisions. Except as set forth in
Section 6(b) hereof, any disputes between the parties which cannot be
settled amicably shall be subject to the jurisdiction of the courts of
Ohio.
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(c) Any notices required under this Agreement shall be in writing
and effective when received by the other party. Notices to the Executive
shall be addressed to him at his then current mailing address on file at
the Company. Notices to the Company shall be addressed to the Secretary of
the Company at the Company's headquarters.
(d) The use of the feminine, masculine or neuter pronoun herein
shall not be restrictive as to gender and shall be interpreted in all
cases as the context may require. The use of the singular or plural herein
shall not be restrictive as to number and shall be interpreted in all
cases as the context may require.
(e) The Company may withhold from any amounts payable to the
Executive, the Executive's beneficiary designated hereunder, or any other
person, all amounts necessary to satisfy the requirements of any state or
federal statute including, without limitation, the requirements of the
United States Internal Revenue Code.
IN WITNESS WHEREOF, the parties hereto, tending to be legally bound,
have executed this Agreement this 19th day of October, 1995.
ATTEST: APCOA, INC.
(The "Company")
/s/ BY: /s/ X.X. Xxxxxxx
-------------------------------- ------------------------------------
X.X. XXXXXXX,
President and
Chief Executive Officer
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WITNESS:
/s/ BY: /s/ Xxxxx X. XxXxxxx
-------------------------------- ------------------------------------
XXXXX X. XxXXXXX
(the "Executive")
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EXHIBIT A
GUIDELINES
1. Standards of Conduct and Business Ethics. The Board of Directors of
Apcoa, Inc., a Delaware corporation (the "Company"), has adopted a corporate
policy for itself and all other corporations, entities, or persons that,
directly or indirectly, through one or more intermediaries, control, are
controlled by, or are under common control with the Company ("Affiliates")
regarding Standards of Conduct and Business Ethics, in order to provide
directors, officers and employees of the Company or its Affiliates with
guidelines to assist them in fulfilling their responsibilities to the public,
the stockholders and the Company.
This policy is equally applicable to all of the foreign operations
of the Company or its Affiliates except where modified by specific foreign laws
and regulations.
As no policy statement can cover the total range of daily
activities, it is recognized that questions of compliance will arise. Such
questions should be directed through normal communications procedures to the
Company's General Counsel at Company Headquarters.
Your attention is also specifically directed to the fact that
disregard of sections of this policy could result in your dismissal as an
employee as well as the imposition of civil and criminal penalties against the
Company or its Affiliates and you personally.
All personnel are requested to read this policy and conform to the
principles stated therein.
2. Policy. It is the policy of the Company that the directors, officers
and employees of the Company or its Affiliates shall conduct their activities so
as to avoid loss or embarrassment to the Company or its Affiliates. Either by
implication or in reality, the objective
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exercise of sound ethical business judgment should not be in any manner limited
by any relationship, any activity or any practice. The Company recognizes and
respects the individual's right to engage in outside activities. However, the
Company reserves the right to determine when these activities create a conflict
of interest. All conduct of the individual must conform to the best interests of
the Company and its Affiliates.
3. Reciprocity. Because of the nature and variety of the business engaged
in by the Company and its Affiliates, certain legal problems could arise with
respect to purchases made by the Company or its Affiliates if such purchases are
conditioned upon suppliers' purchasing products and/or services sold by the
Company or its Affiliates. Conversely, similar legal problems could arise if
customers were to condition their purchases from the Company or its Affiliates
upon a reciprocal purchase of products or services from them. This practice,
commonly referred to as "reciprocity," is prohibited by various federal and
state laws.
It is the policy of the Company that the Company and its Affiliates
comply with all applicable federal, state and local laws. The guidelines set
forth below have been designed to ensure full compliance with such laws. These
guidelines apply to all personnel having purchase or sales responsibilities. The
executives of the Company and its Affiliates should disseminate these guidelines
to appropriate employees and agents and require adherence thereto.
4. Purchase/Sales Guidelines. The following guidelines with respect to
purchases and sales made by the Company or its Affiliates apply to all employees
and agents of the Company or its Affiliates:
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(a) No employee or agent of the Company or its Affiliates having
purchasing responsibilities or duties shall purchase any products or
services from, or enter into or adhere to any contract, agreement or the
condition or understanding that purchases made by him on behalf of the
Company or its Affiliates will be based or conditioned upon any sales to
such supplier by the Company or its Affiliates.
(b) No employee or agent of the Company or its Affiliates having
sales responsibilities or duties shall on behalf of the Company or its
Affiliates sell products or services to, or enter into or adhere to any
contract, agreement or understanding with any actual or potential customer
on the condition or understanding that any purchase by the Company or its
Affiliates from such customer will be based or conditioned upon any sales
of the Company or its Affiliates to such customer.
(c) No employee or agent of the Company or its Affiliates shall
issue to personnel with primary purchasing responsibility any lists,
notices, or other data identifying customers and their purchases from the
Company or its Affiliates or specifying or recommending that purchases be
made by the Company or its Affiliates from any of such customers.
(d) No employee or agent of the Company or its Affiliates shall
issue to personnel with primary sales responsibilities any lists, notices
or other data pertaining to purchases made by the Company or its
Affiliates from particular suppliers.
(e) No employee or agent of the Company or its Affiliates shall
prepare or maintain statistical computations which compare purchases from
suppliers who supply products or services to the Company or its
Affiliates.
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(f) No employee or agent of the Company or its Affiliates shall:
(i) Communicate to any actual or potential seller or supplier
of the Company or its Affiliates that preference will be given to
the purchase of such seller's products or services based upon sales
by the Company or its Affiliates to such supplier.
(ii) Compare or exchange statistical data with any such seller
or supplier to facilitate any relationship of mutual purchases and
sales between such seller or supplier and the Company or its
Affiliates.
(iii) Communicate to any such seller or supplier the fact that
the Company or its Affiliates have made any purchases from such
seller or supplier for the purpose of inducing a purchase by such
seller or supplier.
(iv) Direct or recommend that the Company or its Affiliates
purchase products or services from any seller or supplier for the
purpose of reciprocating purchases made by, or promoting sales to,
such seller or supplier.
(v) Agree with any seller or supplier that such seller or
supplier will purchase products or services from the Company or its
Affiliates in order to reciprocate purchases made by the Company or
its Affiliates from such supplier.
5. Standards of Business Ethics. To determine if a specific interest
creates a conflict with the interests of the Company or its Affiliates, or if a
specific interest creates a conflict with interests of the Company or its
Affiliates, or if a specific practice violates an ethical standard is more
difficult without judging the immediate circumstances involved. Moral and legal
standards are relative measurements of proper behavior. Therefore, the Company
can only set forth
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specific examples that may limit an individual's ability ethically and/or
legally to perform his or her duties for the Company or its Affiliates. Such
examples include:
(a) Having any position or interest in any other business enterprise
operated for a profit which would or could reasonably be supposed to
conflict with the proper performance of the employee's duties or
responsibilities, or which might tend to restrict the employee's
independence of judgment with respect to a transaction between the Company
or its Affiliates and such other business enterprise.
(b) Seeking to, accepting, offering or providing either directly or
indirectly from or to any individual, partnership, association,
corporation or other business entity or representative thereof, doing or
seeking to do business with the Company or its Affiliates the following:
loans (except with bank or other financial institutions), services,
payments, vacation or pleasure trips, or any gifts to more than nominal
value, or gifts of money in any amount.
(c) Benefiting personally from any purchase of any goods or services
of any nature by the Company or its Affiliates, or deriving personal gain
from actions taken or associations made in any capacity as an employee of
the Company or its Affiliates.
(d) Directly or indirectly acquiring as an investment, any stock of
any corporation engaged in the concession business or any business in
competition or doing business with the Company or its Affiliates, with the
exception of nominal stock-holdings in publicly held corporations.
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(e) Disclosing to a third party any information or data regarding
the financial status, decisions or plans of the Company or its Affiliates
which might be prejudicial to the interests of the Company or its
Affiliates, without first obtaining proper authorization.
(f) Misusing one's position with the Company or its Affiliates or
knowledge of the affairs of the Company or its Affiliates for personal
gain or benefit.
(g) Acquiring securities or other property (such as real estate)
which the Company or its Affiliates have a present or potential interest
in acquiring.
(h) Carrying on of the business of the Company or its Affiliates
with a firm in which the employee or near relative of the employee has an
appreciable ownership interest, without disclosing the relationship and
obtaining Company approval.
(i) Engaging in practices or procedures which violate any laws,
rules or regulations applying to the conduct of the business of the
Company or its Affiliates or licenses held by the Company or its
Affiliates, including violation of any antitrust laws.
(j) Contributing funds or property of the Company or its Affiliates
for political contribution purposes, in violation of local, state or
federal laws.
(k) Using or permitting others to use the services of the employees
of the Company or its Affiliates or materials or equipment of the Company
or its Affiliates for personal use or gain.
(l) Condoning or failing to report to appropriate Company authority
the activities of any other officer or employee of the Company or its
Affiliates which violate the principles set forth in this policy
statement.
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(m) Any other and all business practices which are construed or
accepted by the general business community as unethical or in violation of
law.
6. Obligations of Directors, Officers and Employees. Employment by or
association with the Company or its Affiliates carries with it the
responsibility to be constantly aware of the importance of ethical conduct. The
individual must disqualify himself from taking part, or exerting influence, in
any transaction in which his own interests may conflict with the best interests
of the Company or its Affiliates.
Interests which might otherwise be questionable may be entirely
proper if accompanied by a full advance disclosure which affords an opportunity
for prior approval or disapproval. The obligation to make such disclosure rests
upon the individual. All disclosures should be directed through normal
communication procedures to the Company's General Counsel at Company
Headquarters.
Upon disclosure, the Company recognizes that there may be many
borderline situations, and it does not intend to be unreasonable in considering
these cases, giving recognition to the attendant circumstances.
Should disclosure by an individual indicate the possibility of a
conflict of interest, the individual will be given a reasonable time to remedy
the situation.
From time to time questions may arise with respect to this Company
policy for which it is appropriate to consult with legal counsel. It is the
responsibility of each officer and employee to recognize these situations and
seek legal advice. Such advice may be obtained by contacting the Company's
General Counsel at Company Headquarters. It is never a mistake to consult with
counsel when in doubt with respect to the legality of a proposed course of
action.
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7. Compliance with Antitrust Laws. It is the policy of the Company to
comply with all applicable federal and state antitrust laws, including trade
regulation laws, and it is expected that all of the officers and employees of
the Company or its Affiliates will likewise comply. The failure to comply with
applicable antitrust laws may subject the Company or its Affiliates and/or the
individuals involved to criminal and civil penalties, including substantial
fines and imprisonment, treble damage liability, injunctions or other court
orders adversely affecting the operation of the business of the Company or its
Affiliates, and the high cost of defending an antitrust case.
The Company's General Counsel at Company Headquarters coordinates
the handling of the legal affairs of the Company or its Affiliates. His staff is
always available for consultation with respect to compliance with the antitrust
laws. In addition, special legal counsel will be furnished, if required. No
officer or employee of the Company or its Affiliates is authorized to take any
action which the Company's General Counsel has previously advised would
constitute a violation of the antitrust laws.
To the extent it is legally able to do so, the Company shall be
prepared to accept and/or defend any individual who has acted in good faith upon
the advice of the Company's General Counsel, but who nevertheless has become
involved in antitrust proceedings in the course of his employment by the Company
or its Affiliates. Any individual who has violated the antitrust laws or is
convicted of so doing shall be subject to appropriate disciplinary action,
including dismissal, if such individual acted without seeking the advice of the
Company's General Counsel or acted contrary to his advice.
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(a) Rules to Follow. Many of the questions arising under the
antitrust laws must be resolved in the context of a particular fact
situation. However, there are a number of clearly established rules of
conduct which must be observed by all officers and employees of the
Company or its Affiliates in all circumstances in order to assure that the
Company or its Affiliates and the individuals involved are in full
compliance with the antitrust laws.
Set out below are a number of these rules and several other
guidelines with respect to the application of the antitrust laws to the
activities of the Company or its Affiliates:
(i) No officer or employee of the Company or its Affiliates
shall enter into, or attempt to enter into, any understanding,
agreement, plan or arrangement, whether formal or informal, written
or oral, express or implied, with any competitor in regard to
prices, discounts, terms or conditions of or refusing to deal with
any actual or potential customers or suppliers of the Company or its
Affiliates.
(ii) No officer or employee of the Company or its Affiliates
shall give to or accept from a competitor, in written or oral form,
or discuss with a competitor, any information concerning prices,
terms or conditions of sale, or other competitive information except
where: (a) the information or discussion is relevant and necessary
to a bona fide existing or prospective customer or supplier
relationship between the Company or its Affiliates and such
competitor or supplier, or (b) the Company's General Counsel advised
in writing that such
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conduct or discussions would be proper because there would be no
reasonable basis for asserting a violation of the antitrust laws.
8. Implementation Procedure. It is difficult to define all situations and
circumstances with precision in a policy. If there are nay questions at any time
on present or future interpretations of this policy or the propriety of any
conduct, employees of the Company or its Affiliates are requested to consult
with the Company's General Counsel at Company Headquarters to make sure of the
propriety of the action contemplated.
In matters of antitrust and other specialized areas, the Company
retains outside counsel who can be consulted as the need arises. The services of
outside counsel may be obtained by making your request to the Company's General
Counsel at Company Headquarters.
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EXHIBIT B
EXECUTIVE BONUS PLAN
XXXXX X. XxXXXXX
No later than April 15 following the end of each calendar year
during the term of this Executive Employment Agreement, the Executive shall be
entitled to receive a bonus of up to 40% of the Base Salary paid to the
Executive during such calendar year. Eligibility for bonus shall be based solely
on the following criteria and up to the following percentages of Base Salary for
each such criterion:
20% - Achievement of the Company's annual Financial Plan.
This portion of the bonus shall be prorated based upon
the percentage of achievement of the annual Financial
Plan in the event the annual Financial Plan is not
achieved in full.
10% - Achievement of specific management goal set by the
President of the Company at the beginning of such year.
10% - At the sole discretion of the President of the Company.
----
40% Maximum Bonus
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EXHIBIT C
SUPPLEMENTAL PENSION PLAN
IN CONSIDERATION of the mutual promises contained herein, it is
agreed by the Executive and the Company as follows:
1. The Executive may retire from active employment at any time after
he reaches ages 65.
2. Upon retirement, the Company shall provide the Executive with a
retirement benefit of 240 equal consecutive monthly payments of $4,166.67. The
first monthly payment shall be made on the first day of the month coinciding
with or next following the date of the Executive's retirement.
3. In the event the Executive dies after commencement of payments
under paragraph 2 hereof, but before he received the number of monthly
installments set forth therein, the Company shall pay the remainder of said
monthly installments to the executive's designated beneficiary hereunder. For
purposes of this provision, the executive's designated beneficiary hereunder is
Xxxxx XxXxxxx. Executive shall have the right to change such beneficiary at
anytime hereafter, either prior to or after retirement, by notifying the Company
in writing of such change.
4. If the executive shall die prior to age 65 while in the active
employment of the Company, the Company shall pay the Executive's designated
beneficiary an aggregate of $491,000 in 60 equal monthly installments of
$8,183.33. The first installment shall be paid on the first day of the month
following the month in which the Executive dies.
5. This Plan is part of a certain Executive Employment Agreement
(the "Employment Agreement") dated July 1, 1995. Nothing herein shall prevent
the Company from
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terminating the Employment for "cause" in accordance with the terms thereof, and
in which event this Plan shall be terminated and void in all respects and
neither party shall have any further responsibility for satisfying any
obligations that may have otherwise arisen hereunder. However, should the
Executive's employment terminate prior to retirement for any reason, other than
for "cause," resignation, disability or death, the Insurance Policy shall be
transferred by the Company to the Executive within thirty days after such
termination, and the full value of the Insurance Policy and its full cash
surrender value shall become the sole property of the Executive to do with as he
sees fit.
In the event of the Executive's resignation which is not associated
with termination for "cause" or for disability, the Company shall cancel the
Insurance Policy and provide the Executive with the cash surrender value
according to the following schedule:
After five (5) full years' service = 25%
After ten (10) full years' service = 50%
After fifteen (15) full years' service = 75%
After twenty (20) full years' service = 100%
In the event of permanent disability the Company will continue to
pay the premiums on the full value of the Insurance Policy for twelve months
following the Executives' termination because of such disability in accordance
with Section 4(b) of the Employment Agreement and after twelve months to
transfer the full value of the Insurance Policy to the Executive within thirty
days. The full value of the Insurance Policy and its full cash current value
shall become the sole property of the Executive to do with as he sees fit, and
the Company shall have no further responsibility to fulfill any terms of the
Plan or to continue to pay premiums on the Insurance Policy after the transfer
of the Insurance Policy has been completed.
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6. For so long as Executive is receiving payments hereunder,
Executive agrees that Sections 5, 6 and 7 of the Employment Agreement shall
remain in full force and effect.
7. Nothing in this Plan shall prevent Executive from receiving, in
addition to any amounts he may be entitled to under the Plan, any amounts which
may be distributable to him at any time under any pension plan, profit sharing
or other incentive compensation or similar plan of the Company now if effect or
which may hereafter be adopted.
8. This Plan shall be binding upon the Executive, his heirs,
executors, administrators and assigns, and on the Company, its successors and
assigns. The rights of Executive hereunder shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge.
9. This Plan may be altered, changed, amended or terminated only by
writing signed by the party to be bound thereby.
10. This document has been executed in the State of Ohio and shall
be interpreted in accordance with the laws of that State without regard to
conflict of law provisions.
11. This document contains the entire agreement between the parties
with respect to the subject matter hereof, supersedes any and all prior
discussions or agreements the parties may have had with respect thereto
(including any prior Supplemental Pension Plan).
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EXHIBIT D TO EXECUTIVE EMPLOYMENT AGREEMENT
DESIGNATION OF BENEFICIARY
Effective July 1, 1995, I, the undersigned, entered into an
Executive Employment Agreement with APCOA, INC. Pursuant to the terms of said
Agreement, I have the right to designate a beneficiary to receive, in the event
of my death, certain payments pursuant to said Agreement. I, therefore, exercise
this right and designate Xxxxx XxXxxxx to receive any such payments if (s)he
survives me, but if Xxxxx XxXxxxx does not survive me, I designate Estate. Any
and all previous designations of beneficiary made by me are hereby revoked, and
I hereby reserve the right to revoke this designation of beneficiary.
/s/ Xxxxx X. XxXxxxx
------------------------------------
XXXXX X. XxXXXXX
Date: 10/19/95
--------
Receipt of this Designation of Beneficiary form is acknowledged by
the undersigned Secretary of APCOA, INC.
APCOA, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Assistant Secretary
Date: 10/19/95
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