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EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "agreement") is made and entered into effective
as of August 1, 1999, by and between APCOA/STANDARD PARKING, INC., a Delaware
corporation (the "Company") and XXXXX X. XXXXXXX ("Executive").
RECITALS
A. Prior to the effective date hereof, Executive was employed by the
Company. 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 (the Company and its subsidiaries and affiliates, and other
Company-controlled businesses engaged in parking garage management (in each case
including their predecessor's or successor's) are referred to hereinafter as the
"Parking Companies").
B. In the course of Executive's employment previously and hereunder,
Executive has had and will have access to highly confidential and proprietary
information of the Parking Companies and their clients, including without
limitation the information referred to in Paragraph 5.
C. The Company and Executive desire to continue Executive's
employment relationship with the Company and to amend and restate the terms of
Executive's employment agreement, on and subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of (i) the foregoing premises, (ii)
the mutual covenants and agreements herein contained, (iii) the severance rights
provided to Executive as set forth herein (iv) the salary continuation payment
payable on termination and, (v) the increased non-qualified pension benefits
provided to Executive by separate agreement, the Company and Executive hereby
covenant and agree as follows:
I. Performance of Service. Executive's employment with the Company
shall be subject to the following:
(a) The Company agrees to employ Executive in the position of
Executive Vice President. The Company reserves the right to change the title and
duties of Executive from time to time; provided, however, that Executive shall
not, without his consent, be assigned duties substantially inconsistent with the
foregoing.
(b) Executive agrees to faithfully and efficiently perform his duties
and devote his full working time and his best efforts to the business and
affairs of the Company.
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(c) Executive's duties may include providing services for any one or
more of the Parking Companies, and Executive shall hold such other positions in
such other Parking Companies as may be assigned to him from time to time.
Executive acknowledges that the relative time and effort that he will need to
devote to any of the Parking Companies will vary from time to time as required
by the respective business needs of the Company and such other Parking Companies
as may be in existence from time to time. Executive may also be called upon by
the Company to perform consulting or other advisory services for various clients
of the Company and/or the other Parking Companies from time to time.
(d) Notwithstanding the foregoing provisions of this Paragraph 1,
Executive may engage in activities other than those required under this
Agreement, such as management of personal investments, activities involving
professional, charitable, educational, religious and similar types of
organizations, speaking engagements, membership on the boards of directors of
other organizations, and similar type activities to the extent that such other
activities do not interfere with the performance of Executive's duties under
this Agreement, or conflict in any material way with the Company's business.
2. Compensation. Subject to the terms of this Agreement, while
he is employed by the Company, the Company shall compensate Executive for
Executive's services as follows:
(a) Salary. Executive shall receive a base salary at the rate of not
less than $300,000 per annum (the "Salary"), payable in accordance with the
normal payroll practices of the Company as in effect from time to time (but not
less frequently then monthly). The Salary shall be subject to periodic review
and, in the sole discretion of the Company, may be adjusted without affecting
any of the other provisions of this Agreement.
(b) Bonus. For each calendar year during the term of this Agreement,
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.
(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) Business Expenses. Executive shall be reimbursed by the Company
for those business expenses authorized by the Company and for those which are
necessarily and reasonably incurred on behalf of the Company and which may
properly be deducted by the Company as business expenses for federal tax
purposes.
(e) Vacations. Executive shall be entitled to four (4) weeks of annual
vacation, to be taken in accordance with the Company's vacation policy as in
effect from time to time and shall be taken at times which do not unreasonably
interfere with Executives duties.
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(f) Benefits. Executive and/or Executive's family, as the case may be,
shall be eligible for participation and shall receive all benefits under group
medical, dental, term life and disability insurance 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.
(g) [Intentionally Deleted]
(h) Annuity. Executive may become entitled to certain non-qualified
annuity, retirement and/or death benefits pursuant to a separate written
Deferred Compensation Agreement dated as of August 1, 1999 (the "Deferred
Compensation Agreement") entered into between Executive and the Company (as
successor in interest to Standard Parking, L.P.). Notwithstanding anything in
the Deferred Compensation Agreement to the contrary, upon the death of Executive
either: (i) while employed by the Company before attaining age 65 or (ii) prior
to Executive acquiring ownership of one or more of the annuity policies
identified on Schedule I attached hereto pursuant to either Paragraph 4(i) or
4(j) hereof, the Company shall pay to the beneficiary or beneficiaries
designated by Executive, or to his estate if there is no named beneficiary, an
amount equal to the full death benefits payable under the annuity policies
identified on Schedule I attached hereto, less an amount (the "Reduction
Amount") equal to the greater of (i) the Guaranteed Cash Value (as defined
below) of such annuity policies owned by the Company immediately preceding
Executive's date of death or (ii) the aggregate amount of premiums or other sums
paid by the Company or in connection with the maintenance of such policies from
their respective dates of issuance. The "Guaranteed Cash Value" of an annuity
policy shall mean the present value, as of the last anniversary of such policy
for which premiums have been paid, of future benefits provided by the policy, as
such present value is determined in accordance with or as indicated in the table
of values set forth in the policy, less any outstanding loans and loan interest.
Upon the death of Executive either: (i) after attaining age 65, if Executive's
employment with the Company continues until he attains age 65 or (ii) any time
subsequent to Executive acquiring ownership of one or more of the annuity
policies identified on Schedule 1 attached hereto pursuant to either Paragraph
4(i) or Paragraph 4(j) hereof, the Company shall pay to the beneficiary or
beneficiaries designated by Executive, or to his estate if there is no named
beneficiary, an amount equal to the full death benefits payable under the
annuity policies acquired by Executive pursuant to either Paragraph 4(i) or
Paragraph 4(j) hereof, without any Reduction Amount with respect to such annuity
policies.
3. Employment Period. The Company shall employ the Executive, and the
Executive shall serve the Company, on the terms and conditions set forth in this
Agreement, for a period of three (3) years beginning August 1, 1999 and ending
July 31, 2002 (the "Employment Period"). The Employment Period shall
automatically extend for additional terms of one (1) year each (individually
referred to as a "Renewal Period" and in the plural as the "Renewal Periods")
unless the Company or Executive shall have given notice in writing of their
intention not to renew the Agreement not less than three (3) months prior to the
expiration of the Employment Period or any applicable Renewal Period. The
Employment Period, as extended by one or more Renewal Periods, shall hereinafter
be deemed to be the Employment Period. Notwithstanding any such termination,
Paragraph 5 of this Agreement shall remain in full force and effect.
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4. Rights Upon Termination. Executive's right to payment and benefits
under this Agreement for periods after the Date of Termination shall be
determined in accordance with the following provisions of this Paragraph 4:
(a) 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 or Performance Reasons, as set
forth in the 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 Executive's termination occurs for any reason, in addition to any
other obligations hereunder, the Company shall pay Executive:
(i) Executive's Salary for the period ending with the Date of
Termination;
(ii) payment for unused vacation days accrued for the year in
which Executive's termination occurs, as determined in accordance with
Company's policy as in effect from time to time; and
(iii) any other payments or benefits to be provided to 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 Executive to be treated as employed by the Company for
purposes of any employee benefit plan following the Date of
Termination.
(b) If Executive's termination occurs for any reason other than
the circumstances set forth in Paragraphs 4(c) or 4(d) below, then, except as
required by law or otherwise expressly provided in this Agreement or agreed to
in writing between Executive and the Company, and except for Salary Continuation
Payments that are to be made as provided in Paragraph 5(g), the Company shall
have no obligation to make any payments or provide any benefits for periods
after the Date of Termination.
(c) If Executive is terminated by the Company for any reason other
than Cause or Performance Reasons, then, in addition to the amounts payable in
accordance with Paragraph 4(a), and subject to the last sentence of this
Paragraph 4(c), Executive shall be entitled to the following:
(i) During the 24-month period following his 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.
(ii) He shall receive from the Company an amount (the
"Severance Pay") equal to the product of two times the sum of (x) the
Executive's current annual Salary, plus (y) the amount of any Annual
Bonus paid to Executive for the preceding calendar year, minus the
aggregate amount of Salary Continuation Payments. The Severance Pay
shall be paid over the 24-month period commencing on the Date of
Termination in equal monthly or
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more frequent installments in accordance with the Company's normal
payroll practices, then in effect.
(iii) He shall receive from the Company the Salary Continuation
Payments in accordance with Paragraph 5(g).
The Company's obligation to provide welfare benefit coverage and make Severance
Payments and Salary Continuation Payments under this Paragraph 4(c) shall cease
with respect to periods after the earlier to occur of the date of Executive's
death, Permanent Disability (hereinafter defined in Paragraph 4(i)) or the date,
if any, of the breach by Executive of the provisions of Paragraph 5.
(d) If Executive terminates his employment hereunder voluntarily, then
Executive shall be entitled only to the Salary Continuation Payments provided in
Paragraph 5(g) and the amounts payable in accordance with Paragraph 4(a), and
Executive shall not be entitled to Severance Pay; provided, however, that if
Executive terminates his employment for Good Reason (as defined below), 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 4(c) above. "Good Reason" means,
(i) 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 within the Company, or (2) any other substantial
adverse change in such position (including titles, authority or
responsibilities) or significant reduction in Salary and/or Annual
Bonus;
(ii) 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
(iii) the Company requires or otherwise takes such action as
would require the Executive's relocation.
(e) For purposes of this Agreement, the term "Cause" shall mean:
(i) the Executive knowingly and willfully engages in or
manifests his intent to engage in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise; or
(ii) the Executive engages in egregious misconduct involving
serious moral turpitude to the extent that, in the reasonable judgment
of the Company, Executive's credibility and reputation no longer
conform to the standard of the Company's executives.
(f) For purposes of this Agreement, the term "Performance Reasons"
shall mean:
(i) a material breach by Executive of the terms of this
Agreement; or
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(ii) Executive's gross misconduct or gross negligence in the
performance of his duties.
(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 (c)
and (d) of this Paragraph 4, 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.
(h) (Intentionally Deleted)
(i) If Executive's employment is terminated hereunder prior to
attaining age 55 for reasons other than Cause or Performance Reasons and under
the circumstances set forth in the immediately following paragraph of this
subsection (i), Executive has the right to purchase from the Company any one or
more of the annuity policies identified on Schedule I attached hereto, provided
that Executive gives written notice to the Company within 60 days following the
Date of Termination of his intent to exercise such right of purchase and payment
therefor is made to the Company within 120 days following the Date of
Termination. From and after the time of any such purchase by Executive, the
Company shall have no further obligations of any kind with respect to or by
reason of the purchased policies or the Deferred Compensation Agreement, whether
regarding the payment of any amounts (premiums or deferred compensation or any
other amounts) or otherwise.
If Executive's employment terminates for reasons other than Cause
or Performance Reasons, Executive may purchase any one or more of the
scheduled policies by paying the Company an amount equal to the greater of (i)
the applicable cash value of such policies, without deduction for any penalties
or charges applicable upon surrender thereof, or (ii) the aggregate amount of
premiums or other sums paid by the Company in connection with the maintenance of
such policies from their respective dates of issuance. The "applicable cash
value" of the policies means the then total cash value of the policies if
termination of employment occurs prior to Executive attaining age 47, and the
then guaranteed cash value if termination of employment occurs on or after
Executive attains age 47. If requested in writing by Executive, the Company
agrees to cooperate with Executive in borrowing against the cash value of the
policies in order to provide Executive with funds sufficient to pay the Company
the amount due hereunder. From and after the time of any such purchase by
Executive, the Company shall have no further obligations of any kind with
respect to or by reason of the purchased policies or the Deferred Compensation
Agreement, whether regarding the payment of any amounts (premiums, deferred
compensation or other amounts) or otherwise.
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(j)
(i) If Executive's employment is terminated hereunder prior
to or after attaining age 55 by reason of Executive's Permanent
Disability (as hereinafter defined), Executive may elect (a) to receive
from the Company, at no direct cost to Executive, an unconditional
assignment (the "Assignment") of 100% of the Company's ownership
interest in any one or more of the annuity policies identified on
Schedule 1 attached hereto (the "Assignment Option"), or (b) to
continue to have the Company maintain the annuity policies identified
on Schedule 1, at no cost to Executive ("Maintenance Option"). The
Assignment option shall be exercised, if at all, by written notice (the
"Exercise Notice") given by Executive to, and received by, the Company
not later than the first anniversary of the Date of Termination. The
Company shall execute and deliver the Assignment to Executive within
thirty (30) days following the Company's receipt of the Exercise
Notice. Unless and until the Company receives a timely Exercise Notice,
Executive shall be deemed to have elected to pursue the Maintenance
Option. From and after the time of any Assignment, the Company shall
have no further obligations of any kind with respect to or by reason of
such policies or the Deferred Compensation Agreement, whether regarding
the payment of any amounts (premiums, deferred compensation or any
other amounts) or otherwise. The term "Permanent Disability" shall mean
physical or mental disability which renders Executive incapable of
performing substantially all of the duties of his employment with the
Company, as such employment exists immediately prior to the
commencement of such disability (the "Disability Effective Date"),
which disability is likely to be permanent and continuing during the
remainder of Executive's lifetime.
(ii) If Executive's employment is terminated hereunder after
attaining age 55 for reasons other than Cause or Performance Reasons,
Executive may elect, (a) the Assignment Option, or (b) the Maintenance
Option, with the qualification that the cost of maintaining the annuity
policies following the Date of Termination shall be borne by Executive,
but subject to the Company Contribution. The "Company Contribution"
means that the Company shall be responsible for the cost of maintaining
the annuity policies for the equivalent number of years Executive
remains with the Company after age 55. For example, if Executive
remains with the Company for 5 years, until age 60, and then
voluntarily terminates his employment, the Company will be responsible
for the cost of maintaining the annuity policies for 5 years, until age
65. Executive shall exercise the Assignment Option and/or the
Maintenance Option in the same manner as provided in the preceeding
subparagraph (i) above. From and after the time of the assignment
pursuant to Executive's exercise of the Assignment Option, the Company
shall have no further obligation of any kind with respect to or by
reason of such policies or the Deferred Compensation Agreement, whether
regarding the payment of any amounts (premiums, deferred compensation
or any other amounts) or otherwise.
5. Protection of Company Assets.
(a) Trade Secret and Confidential Information. Executive recognizes
and acknowledges that the acquisition and operation of, and the providing of
consulting services for,
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parking facilities is a unique enterprise and that there are relatively few
firms engaged in these businesses in the primary areas in which the Parking
Companies operates. 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 without limitation (i)
information relating to the Parking Companies' manner and methods of doing
business, including without limitation, strategies for negotiating leases and
management agreements; (ii) the identity of the Parking Companies' clients,
customers, lessors and locations, and the identity of any individuals or
entities having an equity or other economic interest in any of the Parking
Companies to the extent such identity has not otherwise been voluntarily
disclosed by any of the Parking Companies; (iii) the specific confidential terms
of management agreements, leases or other business agreements, including without
limitation the duration of, and the fees, rent or other payments due thereunder;
(iv) the identities of beneficiaries under land trusts; (v) the business,
developments, activities or systems of the Parking Companies, including without
limitation any marketing or customer service oriented programs in the
development stages or not otherwise known to the general public; (vi)
information concerning the business affairs of any individual or firm doing
business with the Parking Companies; (vii) financial data and the operating
expense structure pertaining to any parking facility owned, operated, leased or
managed by the Parking Companies or for which the Parking Companies have or are
providing consulting services; and (viii) other confidential information and
trade secrets relating to the operation of the Company's business (the matters
described in this sentence hereafter referred to as the "Trade Secret and
Confidential Information").
(b) Customer Relationships. Executive understands and acknowledges
that the Company has expended significant resources over many years to identify,
develop, and maintain its clients. Executive additionally acknowledges that the
Company's clients have had continuous and long-standing relationships with the
Company and that, as a result of these close, long-term relationships, the
Company possesses significant knowledge of its clients and their needs. Finally,
Executive acknowledges Executive's association and contact with these clients is
derived solely from his employment with the Company. Executive further
acknowledges that the Company does business throughout the United States and
that Executive personally has significant contact with the Company customers
solely as a result of his relationship with the Company in areas including:
Chicago, Los Angeles, and Phoenix.
(c) Confidentiality. With respect to Trade Secret and Confidential
Information, and except as may be required by the lawful order of a court of
competent jurisdiction, Executive agrees that he shall:
(i) hold all Trade Secret and Confidential Information in
strict confidence and not publish or otherwise disclose any portion
thereof to any person whatsoever except with the prior written
consent of the Company;
(ii) use all reasonable precautions to assure that the
Trade Secret and Confidential Information are properly protected and
kept from unauthorized persons;
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(iii) make no use of any Trade Secret and Confidential
Information except as is required in the performance of his duties for
the Company; and
(iv) upon termination of his employment with the Company,
whether voluntary or involuntary and regardless of the reason or cause,
or upon the request of the Company, promptly return to the Company any
and all documents, and other things relating to any Trade Secret and
Confidential Information, all of which are and shall remain the sole
property of the Company. The term "documents" as used in the preceding
sentence shall mean all forms of written or recorded information and
shall include, without limitation, all accounts, budgets,
compilations, computer records (including, but not limited to, computer
programs, software, disks, diskettes or any other electronic or
magnetic storage media), contracts, correspondence, data, diagrams,
drawings, financial statements, memoranda, microfilm or microfiche,
notes, notebooks, marketing or other plans, printed materials, records
and reports, as well as any and all copies, reproductions or summaries
thereof.
Notwithstanding the above, nothing contained herein shall restrict
Executive from using, at any time after his termination of employment with the
Company, information which is in the public domain or knowledge acquired during
the course of his employment with the Company which is generally known to
persons of his experience in other companies in the same industry.
(d) Assignment of Intellectual Property Right. 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 Executive while so employed and relating to the business of the
Company, and Executive agrees to cooperate with the Company's attorneys to
perfect ownership rights thereof in the Company or any one or more of the
Company. This agreement does not apply to an invention for which no equipment,
supplies, facility or Trade Secret and Confidential Information of the Company
was used and which was developed entirely on Executive's own time, unless (i)
the invention relates either to the business of the Company or to actual or
demonstrably anticipated research or development of the Parking Companies, or
(ii) the invention results from any work performed by Executive for the Parking
Companies.
(e) Inevitable Disclosure. Based upon the Recitals to this Agreement
and the representations Executive has made in Paragraphs 5(a) and 5(b) above,
Executive acknowledges that the Company's business is highly competitive and
that it derives significant value from both its Trade Secret and Confidential
Information not being generally known in the marketplace and from their
long-standing near-permanent customer relationships. Based upon this
acknowledgment and his acknowledgments in Paragraphs 5(a) and 5(b), Executive
further acknowledges that he inevitably would disclose the Company's Trade
Secret and Confidential Information, including trade secrets, should Executive
serve as director, officer, manager, supervisor, consultant, independent
contractor, owner of greater than 1% of the stock, representative, agent, or
executive (where Executive's duties as an employee would involve any level of
strategic, advisory, technical, creative sales, or other similar input) for any
person, partnership, joint venture, firm, corporation, or other enterprise which
is a competitor of the Company engaged in providing parking facility management
services because it would be impossible for Executive to serve in any of the
above capacities for such a competitor of the
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Company without using or disclosing the Company's Trade Secret and Confidential
Information, including trade secrets.
(f) Non-Solicitation. Executive agrees that while he is employed by
the Company and for a period of eighteen (18) months after the Date of
Termination, Executive shall not, directly or indirectly:
(i) without first obtaining the express written permission of
the Company's General Counsel which permission may be withheld solely
in the Company's discretion, directly or indirectly contact or solicit
business from any client or customer of the Company with whom Executive
had any contact or about whom Executive acquired any Trade Secret or
Confidential Information during his employment with the Company or
about whom Executive has acquired any information as a result of his
employment with the Company. Likewise, Executive shall not, without
first obtaining the express written permission of the Company's General
Counsel which permission may be withheld solely in the Company's
discretion, directly or indirectly contact or solicit business from any
person responsible for referring business to the Company or who
regularly refers business to the Company with whom Executive had any
contact or about whom Executive acquired any Trade Secret or
Confidential Information during his employment with the Company or
about whom Executive has acquired any information as a result of his
employment with the Company. Executive's obligations set forth in this
subparagraph are in addition to those obligations and representations,
including those regarding Trade Secret and Confidential Information and
Inevitable Disclosure set forth elsewhere in this Agreement; or
(ii) take any action to recruit or to assist in the
recruiting or solicitation for employment of any officer, employee or
representative of the Parking Companies.
It is not the intention of the Company to interfere with the employment
opportunities of former employees except in those situations, described above,
in which such employment would conflict with the legitimate interests of the
Company. If the Executive, after the termination of his employment hereunder,
has any question regarding the applicability of the above provisions to a
potential employment opportunity, Executive acknowledges that it is his
responsibility to contact the Company so that the Company may inform Executive
of its position with respect to such opportunity.
(g) As additional consideration for the representation and
restrictions contained in Paragraph 5, the Company agrees to pay Executive as
follows (the "Salary Continuation Payments"):
(i) if Executive's termination occurs for any reason other
than Cause, the sum of $150,000 in equal monthly installments for up
to eighteen (18) months following the Date of Termination;
(ii) if Executive's termination occurs for Cause, the sum of
$50,000 in equal monthly installments for up to eighteen (18) months
following the Date of Termination.
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In the event Executive breaches this Agreement at any time during the 18-month
period following the Date of Termination, the Company's obligation to continue
any Salary Continuation Payments shall immediately cease and Executive agrees to
return to Company all Salary Continuation Payments paid up to that time.
(h) Remedies. Executive acknowledges that the Company would be
irreparably injured by a violation of the covenants of this Paragraph 5 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 Executive from any
actual or threatened breach of any of the provisions of this Paragraph 5. If a
bond is required to be posted in order for the Company or any one or more of the
Company to secure an injunction or other equitable remedy, the parties agree
that said bond need not exceed a nominal sum. This paragraph shall be applicable
regardless of the reason for 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 Paragraph 5 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
Paragraph 5 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 Executive expressly agrees that this Agreement, as so amended,
shall be valid and binding as though any invalid or unenforceable provision had
not been included herein.
(i) Attorneys' Fees. In the event of litigation in connection with or
concerning the subject matter of this Agreement, the prevailing party shall be
entitled to recover all costs and expenses of litigation incurred by it,
including attorneys' fees and, in the case of the Company, reasonable
compensation for the services of its internal personnel.
6. Severability. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified). Nothing contained
in Paragraph 5(d) or this Paragraph 6 shall constitute an admission, nor create
an inference, that any provision of this Agreement or the application thereof to
any party or circumstance, is invalid or unenforceable.
7. Notices. Any notice which any party shall be required or shall
desire to serve upon the other shall be in writing and shall be delivered
personally or sent by registered or certified mail, postage prepaid, or sent by
facsimile or prepaid overnight courier, to the parties at the addresses set
forth below (or such other addresses as shall be specified by the parties by
like notice):
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In the case of Executive to:
Xxxxx X. Xxxxxxx
000 Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxxxxx 00000
In the case of the Company to:
APCOA/Standard Parking, Inc.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
8. Applicable Law. This Agreement shall be construed in accordance
with the laws and decisions of the State of Illinois, without regard to the
conflict of law provisions thereof
9. Nonalienation. The interests of Executive under this Agreement are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of
Executive or Executive's beneficiary.
10. Amendment. This Agreement may be amended or cancelled only by
mutual agreement of the parties in writing without the consent of any other
person.
11. Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party or any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
12. Successors. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business. Executive's
duties hereunder are personal and may not be assigned.
13. Entire Agreement. Except as otherwise noted herein, this
Agreement, constitutes the entire agreement between the parties concerning the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings, either oral or in writing, if any, between the parties
relating to the subject matter hereof.
14. Acknowledgement by Executive. Executive has read and fully
understands the terms and conditions set forth herein, has had time to reflect
on and consider the benefits and consequences of entering into this Agreement
and has had the opportunity to review the terms
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hereof with an attorney or other representative, if he so chooses. Executive has
executed and delivered this Agreement as his free and voluntary act, after
having determined that the provisions contained herein are of a material benefit
to him, and that the duties and obligations imposed on him hereunder are fair
and reasonable and will not prevent him from earning a livelihood following the
Date of Termination.
IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the day and year first written above.
APCOA/STANDARD PARKING, INC.
By: [SIG]
---------------------------
Its:
---------------------------
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
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EXECUTIVE EMPLOYMENT AGREEMENT
XXXXX X. XXXXXXX
SCHEDULE I
INSURED INSURER POLICY # FACE VALUE(1)
Xxxxx X. Xxxxxxx Guardian Life 3060461 $100,000
Xxxxx X. Xxxxxxx Guardian Life 3322652 $ 50,000
Xxxxx X. Xxxxxxx Guardian Life 3515527 $140,000
Xxxxx X. Xxxxxxx Guardian Life 4024974 $100,000
-------------------------------
(1) The "Face Value" is listed for identification purposes only. It is
acknowledged that the amount of the actual Death Benefits payable under any
given policy may be greater than the designated Face Value, and that the Death
Benefits so payable are not intended to be limited or constrained in any way by
reason of the above Face Value listing.
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DEFERRED COMPENSATION AGREEMENT
This Agreement is made and entered into as of August 1, 1999 by
and between APCOA/Standard Parking, Inc., a Delaware corporation (the
"COMPANY"), and Xxxxx X. Xxxxxxx (the "EMPLOYEE").
RECITALS
A. The Company regards the Employee as important to the long-term
growth and profitability of the Company and has determined that it would be to
the advantage and interest of the Company to provide certain additional
compensation to the Employee if the Employee continues his employment with the
Company until his retirement or earlier death.
B. The Employee wishes to be assured that he or his family will be
entitled to a certain amount of additional compensation for some definite period
of time from and after his retirement from active service with the Company,
whether by reason of his death or otherwise.
C. The parties hereto wish to provide the terms and conditions upon
which the Company shall pay such additional compensation to the Employee or his
family after his retirement or death.
CLAUSES
Now, therefore, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
1. DEFINITIONS.
(a) "ANNUAL RETIREMENT BENEFIT" means an amount equal to $112,500 per
annum which, subject to the conditions set forth herein, is to be
paid by the Company to the Employee during the period described
in Section 2 hereof.
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(b) "COMMENCEMENT DATE" means the first day of the third month
following the Retirement Date, which is May 1, 2019.
(c) "COMPUTATION DATE" means the May 1 nearest to the date of the
Employee's death.
(d) "DISABLED" OR "DISABILITY" means that the Employee is not able
to perform substantially all of the duties of his regular
occupation with the Company, except that after the first full
twenty-four (24) months of such disability, it means that the
Employee is not able to perform substantially all of the duties
of his occupation with the Company or any other occupation for
which he is or becomes fitted by education, training or
experience. The determination of whether the Employee is Disabled
shall be made by the Company and shall be final and binding upon
the Employee.
(e) "QUALIFYING DISABILITY PERIOD" means the time during which the
Employee is Disabled, but only if the Employee's Disability first
occurs while the Employee is in the employ of the Company on a
full time basis.
(f) "RETIREMENT BENEFITS" means the aggregate of all of the Annual
Retirement Benefit payments due to the Employee for the period
described in Section 2 hereof.
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(g) "RETIREMENT - DATE" means the date on which the Employee attains
age sixty-five (65).
2. RETIREMENT BENEFITS. In consideration of the Employee remaining
in its employ, as additional compensation, the Company agrees to pay to the
Employee an Annual Retirement Benefit on the Commencement Date and on each
anniversary of the Commencement Date until the first to occur of (a) fifteen
(15) such annual payments having been made or (b) the Employee's death.
Notwithstanding the foregoing, the Employee will not be entitled to any
Retirement Benefits unless the Employee remains in the employ of the Company on
a full-time basis without any break or interruption in service (other than a
break or interruption in service during a Qualifying Disability Period) from the
date hereof to the Retirement Date.
3. DEATH OF EMPLOYEE. Notwithstanding anything to the contrary
herein contained, upon the death of Employee, all of the Company's obligations
hereunder shall immediately cease and terminate (except for any unpaid
obligations that shall have accrued prior to Employee's death by reason of
paragraph 2 above), and the Company thereafter shall have no further obligation
hereunder of any kind or nature whatsoever.
4. TERMINATION OF EMPLOYMENT. The Company's obligations under
Section 2 are conditioned upon the continuous employment of Employment by the
Company (or by one of Its partners or affiliates) until his Retirement Date. If
the Employee's employment Is terminated prior to the Retirement Date for any
reason whatsoever, except as a result of the Employee's Disability,
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then the Employee shall not be entitled to any Retirement Benefits provided
under this Agreement and all of the Company's obligations hereunder shall
immediately lapse and terminate. If the Employee's employment is terminated on
account of his Disability, the Employee shall be entitled to the Retirement
Benefits on the terms and subject to the conditions set forth herein, but only
if his Disability continues until the earlier of (a) his Retirement Date, or (b)
the date on which he is re-employed by the Company in substantially the same
capacity and performing substantially all of the duties of his employment as at
the time the Disability began.
5. TAX WITHHOLDING. The Company shall report the full amount of the
Retirement Benefits as compensation to the Employee in the year in which such
amount are paid or as the Company may otherwise determine is required by law.
Such amounts will be reflected on the Form W-2 issued to the Employee and will
be subject to withholding for federal, state and local income and employment
taxes as determined by the Company.
6. ASSIGNMENT. The Employee shall not have any power or right to
transfer, assign, anticipate, pledge, hypothecate or otherwise encumber any part
or all of the amounts payable under this Agreement, nor shall such amounts be
subject to attachment, garnishment, levy, execution or other legal or equitable
process by any creditor of the Employee, and no such benefit shall be
transferrable by operation of law in the event of bankruptcy, insolvency or
death of the Employee. Any such attempted assignment, transfer or encumbrance
shall be null and void and shall terminate the Company's obligations under this
Agreement and the Company shall thereupon have no further liability to the
Employee.
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7. UNFUNDED ARRANGEMENT. It is the intention of the parties that this
Agreement shall constitute an unfunded and unsecured arrangement maintained for
the purpose of providing deferred compensation for a select member of the
Company's management and/or a highly compensated employee for purposes of Title
I of ERISA and for federal income tax purposes. Any and all reserves,
investments, insurance policies or other assets that may be set aside or
purchased by the Company to fund its obligations hereunder shall belong solely
to the Company, and the Employee shall not have any rights, claims or interest
therein. The Company's obligations hereunder shall be payable solely from the
assets of the Company. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall (a) require the Company to set aside any
reserves or other assets to fund its obligations hereunder or (b) create, or be
construed to create, a trust of any kind. There is no guaranty that the
Company's assets will be sufficient to pay the benefits contained herein. The
Employee agrees that no general or limited partner, employee or agent of the
Company (and no officer, director, employee, agent or shareholder of the
Company's general partner) shall be liable for any obligation of the Company of
any loss or claim incurred by the Employee in connection with this Agreement.
The Employee hereby releases the Company's general partner or general partners,
whether now serving or that may hereafter become admitted as a general partner,
from any and all liability to pay the Company's obligations under this Agreement
or to contribute or advance funds to the Company to enable it to satisfy such
liability.
8. SUBJECT TO CLAIMS OF CREDITORS. Payments to be made to the
Employee shall be made from assets which, for all purposes, shall continue to be
a part of the general assets of the
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Company, and no person shall have, by virtue of the provisions of this
Agreement, any interest in, preferred claim on or beneficial interest in any of
the Company's assets. The rights of the Employee to receive payments from the
Company under the provisions hereof shall be a mere unsecured contractual right
and shall be no greater than the right of any unsecured general creditor of the
Company.
9. NO PRIOR RIGHTS. This Agreement is not a contract of employment
and neither this Agreement nor any action taken hereunder shall be construed as
giving the Employee any right to be retained in the employ of the Company or any
of its partners or affiliates nor limit the right of the Company to discharge
the Employee. This Agreement provides solely for additional compensation for the
Employee's services, payable after the termination of his employment with the
Company and is not intended to be an employment contract.
10. INTEGRATION. This Agreement sets forth the entire agreement
between the parties with respect to the matters described herein and all prior
discussions and negotiations between them with respect to this subject matter
are hereby merged into this Agreement. This Agreement supersedes any and all
previous agreements between the parties or between the Employee and the general
partner of the Company, written or oral, relating to the subject matter hereof.
11. AMENDMENTS. This Agreement may not be amended, altered or
modified, except by a written instrument signed by the parties hereto, or their
respective successors or assigns, any may not be otherwise terminated except as
provided herein.
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12. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, and the Employee and his
successors, assigns, heirs, executors, administrators and beneficiaries.
13. NOTICES. Any notice, consent or demand required or permitted to be
given under the provisions of this Agreement shall be in writing, and shall be
signed by the party giving or making the same. If such notice, consent or demand
is mailed to a party hereto, it shall be sent by United States certified mail,
return receipt requested, postage repaid, addressed to the Company at its
principal office or to the Employee at his last known residence address as shown
on the records of the Company. The date of such mailing shall be deemed the date
of notice, consent or demand.
14. ATTORNEY'S FEES. If any action at law or in equity, or any
arbitration proceeding, is brought to enforce or interpret the terms of this
Agreement, the prevailing party shall be entitled to reasonable attorney's fees,
costs and necessary disbursements in addition to any other relief to which he
may be entitled.
15. ILLINOIS LAW. This Agreement and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws of the
State of Illinois. Both parties hereby consent to the exclusive jurisdiction of
any state or federal court located within Xxxx County, Illinois, which is the
location of the Company's principal office, and agree that any litigation or
other proceeding instituted hereunder shall be brought in such county and state.
The parties waive any
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objection they may have based on improper venue or forum non conveniens to the
conduct of any proceeding instituted in Xxxx County, Illinois.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
COMPANY:
APCOA/Standard Parking, Inc.,
a Delaware corporation
By: [sig]
---------------------------------------
Its:
-------------------------------------
EMPLOYEE:
/S/ Xxxxx X. Xxxxxxx
---------------------------------------
XXXXX X. XXXXXXX
