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EXHIBIT 10.18
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (the "Agreement") is made and
entered into by and between G. XXXXXX XXXXXXX, a natural person ("Stuelpe"), and
APCOA/STANDARD PARKING, INC., a Delaware corporation (together with its
predecessors in interest, the "Company").
W I T N E S E T H:
WHEREAS, Stuelpe was previously employed by the Company as its
President pursuant to a certain Executive Employment Agreement dated December
12, 1994 (the "Employment Agreement"); and
WHEREAS, Stuelpe's employment by the Company terminated as of 11:59
p.m. CST on February 29, 2000; (the "Termination Date") and
WHEREAS, Stuelpe and the Company desire to settle, inter alia, all
matters relating to Stuelpe's employment by the Company, the termination of such
employment, and the rights and obligations of Stuelpe and the Company under the
Employment Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Date Agreement Becomes Legally Binding. This Agreement shall become
effective and legally binding on the Effective Date (as defined below), but only
if Stuelpe executes this Agreement no later than the twenty-first (21st) day
following the Submission Date (as defined below), subject to Stuelpe's right to
revoke this Agreement pursuant to Section 7(e) hereof.
2. Definitions. The following terms shall have the meanings set forth
below whenever used in this document:
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(a) Affiliate. The word "Affiliate" shall mean any corporation or
other organization that, directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under
common control with the Company.
(b) Beneficiary. "Beneficiary" shall mean any person who becomes
entitled to receive amounts pursuant to this Agreement because
of the death of Stuelpe.
(c) Board. "Board" shall mean the Company's duly elected Board of
Directors as constituted at any time.
(d) Business of the Company. "Business of the Company" shall mean
the business of leasing and managing open air parking lots and
indoor garages and ramps for the purpose of parking motor
vehicles on a leasehold, licensed, concession or management fee
basis throughout the United States and Canada under agreement
with municipalities, owners of properties, and/or otherwise,
whether conducted directly by the Company or through an
Affiliate.
(e) Effective Date. "Effective Date" shall mean the eighth (8th) day
following the day Stuelpe executes this Agreement.
(f) Employee Benefit Plans. "Employee Benefit Plans" shall mean the
plans, arrangements, and policies maintained by the Company
under which Stuelpe was provided employment-related benefits as
of the Termination Date.
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(g) Employment Agreement. "Employment Agreement" shall mean that
certain Executive Employment Agreement dated December 12, 1994,
by and between Stuelpe and the Company.
(h) 401(k) Plan. "401(k) Plan" shall mean the Apcoa/Standard Parking
401(k) Savings Plan, as amended.
(i) 401(k) Wrap Around Plan. "401(k) Wrap Around Plan" shall mean
the Apcoa, Inc. 401(k) Wrap Around Plan, as amended.
(j) Key Executive Officers Retirement Plan. "Key Executive Officers
Retirement Plan" shall mean the Apcoa, Inc. Retirement Plan for
Key Executive Officers, which was adopted by the Company on
April 14, 1989.
(k) Promissory Note. "Promissory Note" shall mean that certain
Promissory Note dated June 25, 1998, in the principal amount of
$250,000.00, executed by Stuelpe in favor of the Company.
(l) Salary. "Salary" shall mean, (i) as of the Termination Date and
for the remainder of calendar year 2000, an annual amount equal
to $449,074.00; and (ii) effective as of January 1, 2001, and
for the remainder of calendar year 2001, an annual amount equal
to $462,546.00.
(m) Submission Date. "Submission Date" shall mean the date this
Agreement is submitted to Stuelpe, as set forth on page 25
hereof.
(n) Supplemental Pension Plan. "Supplemental Pension Plan" shall
mean the Supplemental Pension Plan, Amended as of 9/1/93, which
is sponsored and maintained by the Company.
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(o) Termination Date. "Termination Date" shall mean February 29,
2000, the date Stuelpe ceased to be employed by the Company.
3. Termination of Employment. Stuelpe ceased to be employed by the
Company as of 11:59 p.m CST on the Termination Date. Until such time, Stuelpe
was employed by the Company as its President pursuant to terms of the Employment
Agreement.
4. Payments, Benefits, Etc. Provided by the Company to Stuelpe.
(a) Salary Continuation. Following the Termination Date, the Company
shall continue to pay to Stuelpe the Salary through June 30,
2001, at such times as it normally pays executive salaries.
(b) Payment in Lieu of Salary Continuation. On July 1, 2001, the
Company shall pay to Stuelpe an amount equal to $245,827.00,
which amount represents the commuted single lump-sum value of
the continued periodic payments of the Salary to Stuelpe from
July 1, 2001 through December 31, 2001, and such payment shall
be in lieu, and in full satisfaction, of any obligation of the
Company to continue to pay the Salary to Stuelpe in respect of
periods after June 30, 2001.
(c) Certain Employee Benefit Plans. For the period beginning on
March 1, 2000 and ending on December 31, 2000, but only if
Stuelpe exercises his right to elect health continuation
coverage under 26 U.S.C. ss.4980B, Stuelpe shall continue to
participate in the health insurance and medical expense
reimbursement plans of the Company in which he participated as
of the Termination Date (or any successor plans which cover the
Company's senior officers) as though he had remained employed by
the
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Company, and for such period of continued participation, the
Company shall pay such portion of the premiums normally charged
to former employees and shall pay to Stuelpe such additional
amounts as shall be necessary so that Stuelpe's costs for such
continued participation on an after-tax basis do not exceed the
costs he would have incurred had he remained employed by the
Company. For the period beginning on March 1, 2000 and ending on
December 31, 2000, the Company shall pay all premiums necessary
so that Stuelpe continues to be covered by life insurance,
accidental death and dismemberment insurance, business travel
accident insurance, and long-term disability insurance providing
coverage comparable to that which he received as of the
Termination Date under the Company's group term life insurance,
accidental death and dismemberment insurance, business travel
accident insurance and group and individual long-term disability
insurance plans (subject to Stuelpe's continuing to pay his
share of such premiums, if applicable, at the same rate as of
the Termination Date) and shall pay to Stuelpe such additional
amounts as shall be necessary so that Stuelpe's costs for such
continued participation on an after-tax basis do not exceed the
costs he would have incurred had he remained employed by the
Company. As soon as practicable after the Effective Date, the
Company shall pay to Stuelpe, in a single lump sum, an amount
(the "Additional Contributions") equal to the amount of the
Company's matching contributions which were made (or which will
be made) in respect of Stuelpe under the 401(k) Plan and the
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401(k) Wrap Around Plan for calendar year 1999 minus any such
contributions which were actually made for Stuelpe's benefit for
any period commencing after calendar year 1999 and based on his
elective contributions under the 401(k) Plan (but only to the
extent they were based on Stuelpe's compensation from the
Company for services performed in respect of any period
commencing after calendar year 1999), together with an
additional amount so that, on an after-tax basis determined
immediately after such amount is paid to Stuelpe, Stuelpe shall
be in the same position as though the Additional Contributions
had actually been made to the 401(k) Plan and the 401(k) Wrap
Around Plan in respect of calendar year 2000. The amount of the
payment to Stuelpe pursuant to the preceding sentence as well as
any other amounts required to satisfy the requirements of this
subsection (c) in respect of Stuelpe's after-tax position shall
be calculated at the Company's cost and expense by Ernst & Young
LLP, and its determination of such amounts shall be final and
binding upon both Stuelpe and the Company, and Stuelpe and the
Company shall each provide Ernst & Young LLP with such
information as it may reasonably request in order to calculate
such amounts.
(d) Continuation of Certain Fringe Benefits. From March 1, 2000
until December 31, 2000, the Company shall, consistent with its
past practices in respect of Stuelpe, continue to provide
Stuelpe with the automobile provided to him by the Company as of
the Termination Date and upon the same terms and conditions.
From March 1, 2000 until December 31,
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2000, the Company will, consistent with its past practices in
respect of Stuelpe, continue to pay dues, capital charges,
service/privilege fees, and assessments in respect of Stuelpe's
memberships in Xxxxxxxx Country Club, Xxxxxxxx, Ohio, the Union
Club, Cleveland, Ohio, Sand Ridge Golf Club, Chardon, Ohio and
the Double Eagle Club, Galena, Ohio.
(e) Promissory Note Forgiveness. The remaining outstanding principal
balance of the Promissory Note and any accrued and unpaid
interest thereon shall be forgiven in full as of the Termination
Date and, as soon after the Effective Date as is practicable,
the Company shall make Stuelpe whole on an after-tax basis for
any federal, state and local income taxes incurred by Stuelpe
with respect to such forgiveness (the "Tax Gross-Up Amount").
The Tax Gross-Up Amount shall be calculated at the Company's
cost and expense by Ernst & Young LLP, and its determination of
the Tax Gross-Up Amount shall be final and binding upon both
Stuelpe and the Company. Stuelpe and the Company shall each
provide Ernst & Young LLP with such information as it may
reasonably request in order to calculate the Tax Gross-Up
Amount.
(f) Stuelpe's Legal Fees. As soon as practicable following the
Effective Date, the Company shall pay (or reimburse Stuelpe's
payment of) all reasonable legal fees incurred by Stuelpe in
respect of the negotiation and preparation of this Agreement, up
to a maximum of $35,000 in the aggregate.
(g) Supplemental Pension Plan. As soon as practicable following the
Effective Date, the Company will deliver to Stuelpe, free and
clear of any
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claims of the Company and any policy loans, with premiums paid
up through December 31, 2000, and with its cash surrender value
intact, Policy No. CG5073054 issued on Stuelpe's life by
Connecticut General Life Insurance Company, and delivery of such
life insurance policy shall be in lieu, and in full
satisfaction, of all obligations and benefits under the
Supplemental Pension Plan.
(h) Expense Reimbursement. As soon as practicable following the
Effective Date, the Company shall reimburse Stuelpe for all
reasonable expenses he incurred relating to the conduct of the
Business of the Company prior to the Submission Date and for
which he has not previously been reimbursed. Any such expense
reimbursement shall be conditioned upon Stuelpe presenting to
the Company an itemized account of such expenses with supporting
documents. Reimbursable expenses shall include reasonable and
necessary expenses for entertainment, travel, meals and hotel
accommodations, and Stuelpe's operation of an automobile while
he was an employee of the Company, as described in the
Employment Agreement.
(i) Key Executive Officers Retirement Plan. On April 1, 2000, the
Company will pay to Stuelpe $1,270,424.00, which amount
represents the commuted single lump-sum value of Stuelpe's
accrued benefits under the Key Executive Officers Retirement
Plan, calculated as though Stuelpe had continued to accrue
benefits thereunder until December 31, 2000, and
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shall be in lieu, and in full satisfaction, of all obligations
and benefits under the Key Executive Officers Retirement Plan.
(j) 1999 Bonus. The Company shall pay Stuelpe a bonus for calendar
year 1999 in an amount determined pursuant to the formula set
forth in Exhibit B to the Employment Agreement. Such amount
shall be paid to Stuelpe at the same time as the Company's other
senior executives receive their bonuses for calendar year 1999,
but in no event later than April 15, 2000.
(k) Employee Benefit Plans -- In General. In connection with his
termination of employment, except as otherwise provided
hereunder, upon the termination of his active participation in
any Employee Benefit Plan or thereafter, Stuelpe shall receive
such benefits as he may be entitled to receive under the
respective Employee Benefit Plan in accordance with the terms of
such Employee Benefit Plan.
(l) Continued Indemnification. On and after the Termination Date,
the Company shall continue to indemnify Stuelpe to the full
extent permitted by law against liability claims arising out of
his activities as an employee or director of the Company at any
time and to provide him with continued coverage in respect of
such claims under any Directors and Officers insurance policy
the Company maintains to the maximum extent any Company officer
or director is covered.
(m) No Offsets. Except in respect of a claim against Stuelpe for
which the Company has not released Stuelpe pursuant to Section 8
hereof, the Company shall have no right to reduce any amount
payable to Stuelpe
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pursuant to this Agreement or fail to provide any other benefits
to Stuelpe pursuant to this Agreement for any reason (including,
without limitation, any alleged breach by Stuelpe of his
obligations hereunder). In the event the Company fails timely to
pay any amount to Stuelpe or provide any benefit to Stuelpe
required hereunder, upon demand by Stuelpe the Company shall
make such payment or provide such benefit together with interest
at the annual rate of 8% (calculated on the amount of the
payment or value of the benefit) from the date such payment was
to be made or benefit provided, and the Company shall pay in
full any attorneys' fees incurred by Stuelpe in enforcing his
right to receive such payment or benefit.
(n) Stuelpe's Personal Property. After the Termination Date, Stuelpe
shall be given reasonable access to the premises of the Company
and the Affiliates for the purpose of removing Stuelpe's
personal property and effects from such premises.
5. Consulting Services. After the Termination Date, in the event
Stuelpe provides consulting services relating to prospective acquisitions by the
Company or an Affiliate and/or other significant transactions in respect of the
Business of the Company, Stuelpe shall receive such compensation as the parties
shall have agreed upon in writing. Stuelpe shall, for all purposes, be an
independent contractor when performing any such consulting services, shall be
solely responsible for all taxes (including estimated tax payments) and
reporting of amounts he receives for services as a consultant, and shall not be
considered an "employee" for purposes of any benefit plans.
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6. Restrictive Covenants.
(a) Secret and Confidential Information. During his tenure as an
officer and employee of the Company, Stuelpe has had access to
and has gained knowledge with respect to the Company's trade
secrets, as they may exist from time to time, and confidential
information concerning its financial statements, operations,
sales and marketing activities and procedures, bidding
techniques, design and construction techniques, customer lists,
list of owners of parking facilities, and credit and financial
data concerning such persons (in the aggregate referred to
hereinafter as "Secret and Confidential Information"). Stuelpe
acknowledges that the Secret and Confidential 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. In recognition of this
fact, Stuelpe agrees that he will not, on and after the
Termination Date, disclose any of the Secret and Confidential
Information to any person, firm, corporation, association or
other entity for any reason or purpose whatsoever (except as
necessary in the performance of consulting services under
Section 5 hereof) or make use of any of the Secret and
Confidential Information for his own purposes or those of
another but only if with respect to any such disclosure or use
there is a reasonable possibility that such disclosure or use
could have a materially adverse effect upon the Company. The
provisions contained in this subsection (a) shall also apply to
information obtained by Stuelpe, in the course of his employment
by or
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consulting relationship with the Company, with respect to the
Affiliates.
(b) Stuelpe's Inventions, Etc. On and after the Termination Date,
Stuelpe 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 Stuelpe has conceived, developed or acquired
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 on and after the
Termination Date, Stuelpe shall promptly execute any and all
documents requested to vest title to any and all of the
Creations in the Company and enable it to obtain and maintain
the entire right and title thereto throughout the world and
render to the Company, at the Company's expense, any and all
assistance required to protect its legal rights thereto.
(c) Noncompetition. Subject to the next sentence, Stuelpe covenants
and agrees that during the period commencing on March 1, 2000
and ending on December 31, 2001, he shall not have any direct or
indirect ownership or other financial interest in and will not,
directly or indirectly, engage 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 nor will he
solicit business directly
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or indirectly on behalf of such competing business. The
restriction set forth in the preceding sentence shall not apply
to any transaction or arrangement involving Stuelpe to which the
Company consents in writing. Nothing herein shall preclude
Stuelpe from being a member of or serving 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.
(d) Remedies. It is agreed by Stuelpe that the remedy at law for any
breach or threatened breach of the covenants set forth in this
Section 6 above 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. Stuelpe further agrees that in the
event of any such breach or threatened breach by him, in
addition to any and all other legal and equitable remedies
available, the Company may have any of such actions enjoined by
any court authorized by law to take such action. The
territorial, time and other limitations contained in this
Section 6 above are reasonable and properly required for the
adequate protection of the Business of the Company, and in the
event that any one 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
and agree that such limitation shall remain valid in all other
jurisdictions.
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7. Stuelpe's Release of the Company, etc.; Right to Revoke Agreement.
(a) In General. In consideration of the payments and benefits set
forth in this Agreement, Stuelpe does hereby for himself and his
heirs, executors, representatives, successors, and assigns,
irrevocably release, acquit, and forever discharge the Company
and the Affiliates, and their respective successors and assigns,
together with their respective officers, directors,
shareholders, management, agents, employees, representatives,
and attorneys (collectively, "the Releasees"), of and from any
and all claims, liabilities, losses, demands, actions or causes
of action, damages, or suits at law or equity, of whatsoever
kind or nature, whether known or unknown, suspected or
unsuspected, including, but not limited to, all claims and/or
demands for back pay, reinstatement, hire or re-hire, front pay,
group insurance or employee benefits of whatsoever kind, claims
for monies and/or expenses, any claims arising out of or
relating to Stuelpe's employment with the Company or any of its
Affiliates, any claims of discrimination on any basis, whether
arising under federal, state or local law and in particular
including any claim for discrimination based upon race, color,
ethnicity, sex, age, national origin, religion, disability, or
any other unlawful criterion or circumstance, any claims for
breach of express/implied contract and/or sounding in
"promissory estoppel," any action alleging "wrongful
termination," any claims for violation of public policy, any
claims for emotional distress and/or mental pain and suffering,
any claims for
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defamation and/or tortious interference with actual and/or
prospective business relationships, any claims for failing to
obtain employment at any other company or with any other person
or employer, and demands for attorney's fees and legal expenses,
that Stuelpe had, now has, or may have in the future against the
Releasees, by reason of, or in any manner whatsoever connected
with, any matter or thing arising out of, or in any way
connected with, directly or indirectly, any act and/or omission
of the Releasees that has occurred prior to the Effective Date
(b) Age Discrimination Release. Stuelpe recognizes and understands
that, by executing this Agreement, he shall be releasing the
Releasees from any claims that he now has, may have, or
subsequently may have under the Age Discrimination in Employment
Act of 1967, 29 U.S.C. ss.621, et seq., as amended, by reason of
any matter or thing arising out of, or in any way connected
with, directly or indirectly, any acts or omissions which have
occurred prior to the Effective Date. In other words, by signing
this Agreement, Stuelpe will have none of the legal rights
against the aforementioned that he would otherwise have under
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
ss.621, et seq., as amended. Stuelpe agrees and acknowledges
that this Agreement includes additional, separate, and discrete
consideration for his release, waiver, and discharge of claims
of age discrimination.
(c) Stuelpe's Representation. Stuelpe represents and warrants that,
prior to the Effective Date, no claim, demand, cause of action,
or obligation which is
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subject to this Agreement has been assigned or transferred to
any other person or entity, and no other person or entity has or
has had any interest in said claims, demands, causes of action,
or obligations, and that Stuelpe has the sole right to execute
this Agreement.
(d) Stuelpe's Right to Counsel; Consideration Period. The Company
hereby informs Stuelpe of his right to consult with his chosen
legal counsel before signing this Agreement. To ensure that
Stuelpe's execution of this Agreement is knowing and voluntary,
Stuelpe shall have until the twenty-first (21st) calendar day
following the Submission Date (the "Consideration Period") to
consider this Agreement. In executing this Agreement, Stuelpe
expressly acknowledges that he has had twenty-one (21) days to
consider this Agreement and that his execution of same is with
full knowledge of the consequences thereof and is of his own
free will.
(e) Stuelpe's Right to Revoke. For a period of seven (7) calendar
days following the end of the Consideration Period, Stuelpe may
revoke this Agreement by giving the Company notice revoking the
same. Such revocation of this Agreement by Stuelpe will
terminate this Agreement in its entirety and all rights and
obligations of the parties hereunder.
(f) Release a Bar to Stuelpe's Claims. Stuelpe acknowledges and
agrees that if he should hereafter make any claim or demand or
commence or threaten to commence any action, claim or proceeding
against the Releasees with respect to any cause, matter or thing
which is the subject of this Section 7, this release may be
raised as a complete bar to any such action, claim or
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proceeding, and the applicable Releasee may recover from Stuelpe
all costs incurred in connection with such action, claim or
proceeding, including attorneys' fees.
8. The Company's Release of Stuelpe, Etc. The Company, for itself and
its respective successors and assigns, hereby releases, acquits, and forever
discharges Stuelpe and his heirs, legal representatives, and assignees, jointly
and severally, from any and all claims, demands, damages, actions, and causes of
action which the Company has had, now has, or may have in the future, whether
known or unknown, suspected or unsuspected, by reason of, or in any manner
whatsoever connected with, or growing out of Stuelpe's employment relationship
with the Company. Notwithstanding the preceding sentence, the Company reserves
its rights and does not release Stuelpe and his heirs, legal representatives,
and assigns, jointly or severally, from any and all claims, demands, damages,
actions, and causes of action which the Company has had, now has, or may have in
the future, (i) by reason of any misconduct by Stuelpe during his employment
relationship with the Company or provision of consulting services under this
Agreement which was dishonest or fraudulent or arose from willful misconduct or
gross negligence and which materially harmed the Company or (ii) arising out of
or resulting from the breach of the provisions of this Agreement, including,
without limitation, claims for breach under Section 6. The Company represents
and warrants to Stuelpe that, as of the Submission Date, the Company does not
have actual knowledge of any such misconduct by Stuelpe as described in the
preceding sentence; provided, if the Company becomes aware of any such
misconduct on or after the Submission Date and prior to the Effective Date, it
shall immediately notify Stuelpe. For purposes of this Section 8, the word
"Company" shall be deemed to include all of the Affiliates, and the Company
shall
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cause the Affiliates to abide by the terms of this Section 8 as though
each Affiliate had actually executed this Agreement.
9. Arbitration. Any disputes between the parties with respect to the
meaning or interpretation of this Agreement or the amounts of any payments
hereunder which cannot be settled amicably by the parties hereto shall be
settled by arbitration in Cleveland, Ohio, in accordance with the rules of
arbitration of the American Arbitration Association and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be deemed to possess the powers to issue mandatory
orders and restraining orders in connection with such arbitration; provided,
however, that nothing in this Section 9 shall be construed so as to deny the
Company the right and power to seek and obtain equitable relief in accordance
with Section 6(d) of this Agreement. In the event either party seeks to have any
dispute under this Agreement settled by arbitration, either party may submit to
the same arbitrator any other disputes between the parties whether under this
Agreement or any other agreement between the parties.
10. Post-Mortem Payments; Designation of Beneficiary. In the event of
Stuelpe's death, any amounts which would have been paid to Stuelpe hereunder had
he survived shall be paid to Stuelpe's beneficiary designated hereunder. At any
time after the execution of this Agreement, Stuelpe 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 X. Xxxxxxx 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 Stuelpe fails to designate
a beneficiary, following his death all payments of the amounts which would have
been paid to Stuelpe's
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designated beneficiary pursuant to this Agreement shall instead be paid to
Stuelpe's spouse, if any, if she survives Stuelpe or, if there is no spouse or
she does not survive Stuelpe, to Stuelpe's estate.
11. Representation of the Company. The Company represents and warrants
to Stuelpe that (i) the Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware; (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; and
(iii) the Company's entering into and performing this Agreement has been duly
authorized in accordance with the Company's Certificate of Incorporation and
By-Laws, as applicable.
12. Miscellaneous.
(a) Status as Unsecured Creditor. The undertakings of the Company
hereunder constitute merely the unsecured promises of the
Company. No property of the Company is or shall be, by reason of
this Agreement, held in trust for Stuelpe. Stuelpe shall not
have, by reason of this Agreement, any right, title or interest
of any kind in or to any property of the Company.
(b) Announcements. The parties shall agree upon the content of any
public or private announcements including, without limitation,
any announcements to the Company's employees or the trade
concerning Stuelpe's termination of employment with the Company;
provided, that the Company may make such filings with the United
States Securities and Exchange Commission as may be required by
applicable law without the agreement of Stuelpe.
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(c) Tax Withholding. The Company may withhold from any amounts
payable to Stuelpe under this Agreement 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. Stuelpe agrees that amounts paid
to him for consulting services pursuant to Section 5 will not be
subject to tax withholding or reporting by the Company and all
taxes thereon are his sole obligation.
(d) Entire Agreement; Supersession of Prior Agreements. This
Agreement constitutes the entire understanding and agreement
between the parties concerning the subject matter hereof and,
except as otherwise provided herein, supersedes in their
entirety any prior agreements between Stuelpe and the Company
including, without limitation, the Employment Agreement, the Key
Executive Officers Retirement Plan, the Promissory Note, the
Supplemental Pension Plan, and any term sheets with respect to
this Agreement, and shall exclusively govern the rights and
obligations of each party in respect of the other party. All
negotiations between the parties concerning the subject matter
hereof are superseded hereby, and there are no representations,
warranties, covenants, understandings or agreements, oral or
otherwise, in relation thereto between the parties other than
those incorporated herein. No supplement, modification or
amendment of this Agreement shall be binding unless executed in
writing by the Company and Stuelpe.
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(e) Waiver. Failure by either party at any time to enforce any
provision of this Agreement or to require performance by the
other party of any provision hereof shall in no way affect the
validity of this Agreement or any part hereof or the right of
such party thereafter to enforce its rights hereunder, nor shall
it be taken to constitute a waiver by such party of any default
or breach hereof by the other party.
(f) Time Periods, Etc. Any action required to be taken under this
Agreement within a certain number of days shall be taken within
that number of calendar days; provided, however, that if the
last day for taking such action falls on a weekend or a holiday,
the period during which such action may be taken shall be
automatically extended to the next business day. If the day for
taking any action under this Agreement falls on a weekend or a
holiday, such action may be taken on the next business day.
(g) Governing Law. This Agreement is executed in and shall be
construed in accordance with and governed by the laws of the
State of New York, without giving effect to the choice of law
provisions of New York or any other jurisdiction.
(h) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same document.
(i) Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the
construction or interpretation of this Agreement.
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(j) No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction
shall be applied against either party.
(k) Incorporation by Reference. The incorporation herein of any
terms by reference to another document shall not be affected by
the termination of any agreement set forth in such other
document or the invalidity of any provisions thereof.
(l) Gender; Number. The use of the feminine, masculine or neuter
pronoun 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.
(m) Binding Effect; Assignment. This Agreement shall inure to the
benefit of and be binding upon the Stuelpe and the Company and,
as applicable, upon their respective legal representatives,
designated beneficiaries, and successors and assigns. Except in
respect of payments following Stuelpe's death, Stuelpe may not
assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Company.
(n) Severability. If any provision, term, clause or part thereof in
this Agreement is invalid, 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.
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(o) Notices. All notices and other communications hereunder shall be
in writing, and shall be either personally delivered, or sent by
certified mail (return receipt requested), or sent by facsimile
transmission (with electronic or written confirmation of
receipt), and shall be deemed to have been duly given when
received. Notices shall be delivered or sent to the parties at
the following addresses and facsimile numbers (or at such other
address or facsimile number for a party as shall be specified by
like notice):
(i) If to the Company, to
APCOA/STANDARD PARKING, INC.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxx, Esq.
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
(ii) If to Stuelpe, to:
G. Xxxxxx Xxxxxxx
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxx 00000
Facsimile: (000) 000-0000
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With a copy to:
Xxxx X. XxXxxxx, Esq.
Xxxxxx, Halter & Xxxxxxxx LLP
1400 XxXxxxxx Investment Center Building
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Facsimile: (000) 000-0000
(p) No Coercion by the Company. Stuelpe acknowledges and agrees that
his decision to execute this Agreement is entirely voluntary,
and hereby acknowledges that he has not been pressured, coerced,
or otherwise unduly influenced by the Company to execute this
Agreement.
(q) Confidentiality of Terms of Agreement, Etc. Except as compelled
by a court of competent jurisdiction, Stuelpe shall hold the
existence and terms of this Agreement in strict confidence and
shall not disclose such information to any persons except
Stuelpe's immediate family, legal counsel, and tax consultants,
all of whom shall be instructed to hold such information in
strict confidence. Except as compelled by a court of competent
jurisdiction, the Company shall hold the existence and terms of
this Agreement in strict confidence, and shall not disclose such
information to any persons except members of the Board, its
Chief Executive Officer, legal counsel and other professional
advisors, all of whom shall be instructed to hold such
information in strict confidence.
(r) Further Assurances. From time to time after the Effective Date,
upon request of the other party and without further
consideration, each party shall execute and deliver to the other
party any other document or instrument, and
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shall take any other action as may be reasonably requested of
it, to the extent necessary to give effect to the provisions of
this Agreement.
13. Withdrawal of the Company's Offer. In the event that Stuelpe does
not execute this Agreement by the twenty-first (21st) day following the
Submission Date, the offer of the Company set forth in this Agreement shall be
withdrawn, and this Agreement shall be of no force and effect.
________________________________________
DATE OF RECEIPT OF AGREEMENT SIGNATURE OF STUELPE
BY STUELPE: ACKNOWLEDGING RECEIPT OF
AGREEMENT:
________________________, 2000 ________________________________
G. XXXXXX XXXXXXX
RECEIPT WITNESSED BY:
________________________________
________________________________________
IMPORTANT!! IF STUELPE DOES NOT EXECUTE THIS AGREEMENT (BY SIGNING ON
THE FOLLOWING PAGE) BY THE 21ST DAY FOLLOWING THE DATE OF HIS RECEIPT
OF THE AGREEMENT (SEE ABOVE), THE COMPANY'S OFFER AS SET FORTH IN THIS
AGREEMENT SHALL BE WITHDRAWN AND THIS AGREEMENT SHALL BE OF NO FORCE
AND EFFECT.
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IN WITNESS WHEREOF, the Company by its duly authorized officer, and
Stuelpe have executed this Agreement on the dates set forth below.
DATE OF EXECUTION BY THE
COMPANY: APCOA/STANDARD PARKING, INC.
(the "Company")
________________________, 2000 BY:___________________________
TITLE:________________________
EXECUTION WITNESSED BY:
______________________________
DATE OF EXECUTION BY STUELPE:
______________________, 2000 ______________________________
G. XXXXXX XXXXXXX
("Stuelpe")
EXECUTION WITNESSED BY:
_______________________________
___________________________________
CAUTION TO STUELPE: READ THIS DOCUMENT CAREFULLY BEFORE SIGNING. THIS
DOCUMENT CONTAINS A RELEASE OF ALL CLAIMS AGAINST THE COMPANY AND
OTHERS (SEE SECTION 7) ARISING PRIOR TO THE EFFECTIVE DATE OF THE
AGREEMENT. THE EFFECTIVE DATE OF THE AGREEMENT IS EIGHT DAYS AFTER
STUELPE EXECUTES THE AGREEMENT (SEE PRECEDING PAGE).
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EXHIBIT A
DESIGNATION OF BENEFICIARY
On __________________, 2000, I, the undersigned, entered into a
Settlement Agreement and Release (the "Agreement") with
____________________________. Pursuant to the terms of the Agreement, I have the
right to designate a beneficiary to receive, in the event of my death, certain
payments pursuant to the Agreement. I, therefore, exercise this right and
designate ________________________________ to receive any such payments. 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.
_____________________________
G. XXXXXX XXXXXXX
Date: __________________, 2000
______________________________
Receipt of this Designation of Beneficiary form is acknowledged
by the undersigned Secretary of ________________________.
APCOA/STANDARD PARKING, INC.
By:___________________________
Secretary
Date:____________________, 2000
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