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BENEFITS PLAN AND AGREEMENT
STANDARD PARKING CORPORATION
AND
XXXXX X. XXXXXXX
This Benefit Plan and Agreement ("Plan") has been adopted and entered
into as of this 22nd day of December, 1986, by and between STANDARD PARKING
CORPORATION ("Standard"), an Illinois corporation, and XXXXX X. XXXXXXX
("Xxxxxxx"), currently of Chicago, Illinois.
RECITALS:
A. Standard presently is engaged in the business of developing,
operating, managing and leasing motor vehicle parking facilities and the
rendering of consulting services to developers, operators, managers and lessees
of parking facilities.
B. Pursuant to a certain Executive Employment Agreement dated November
1, 1985 (the "Executive Employment Agreement") between various companies related
to or affiliated with Standard, as "the Employer Corporations", and Xxxxxxx, as
"the Executive", Xxxxxxx is rendering services on a full time basis to Standard
and such Employer Corporations. This Plan is intended to provide to Xxxxxxx
certain benefits in addition to those to which he is entitled under the
Executive Agreement and is not intended to otherwise modify or affect any of the
terms and provisions of the Executive Employment Agreement, including all of
Xxxxxxx'x duties, obligations and restrictions thereunder.
C. Standard values the services of Xxxxxxx and wishes to encourage
Xxxxxxx to continue his employment with Standard and/or one or more of the
Affiliates in a capacity which involves the rendering of supervisory services in
connection the operation of parking facilities with respect to which Standard or
an Affiliate is the operator, manager or of such parking facilities.
D. Standard wishes to adopt a plan which will provide Xxxxxxx (or his
designated beneficiaries) with certain death and retirement benefits, subject to
certain specified conditions.
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CLAUSES:
In consideration of the foregoing Recitals and other good and valuable
consideration, the parties hereby adopt and enter into the Plan as hereinafter
set forth.
ARTICLE ONE
DEFINITIONS
1.1 "Affiliate" shall mean and include: (i) any corporation, the
controlling voting stock of which is owned by Standard or the principal
shareholders of Standard; (ii) any partnership, a general partner of which is a
shareholder of Standard; (iii) any other business enterprise, the controlling
interest of which is beneficially owned by a shareholder of Standard or any of
the foregoing; (iv) any corporation which is included in the definition of "the
Employer Corporations" in the Executive Employment Agreement; and (v) any
company or business enterprise for whom Standard or any Affiliate is rendering
consulting or similar services with respect to the development, operation,
management or leasing of a parking facility.
1.2 "Cause" shall mean the happening of any of one or more of the
following: Xxxxxxx shall be convicted of a felony by a Court of competent
jurisdiction; Standard or an Affiliate determines, in its sole discretion but
based upon reasonable criteria and assumptions, that Xxxxxxx has committed
fraud, embezzlement or any other act of material dishonesty against Standard or
an Affiliate; Xxxxxxx shall willfully and in bad faith make public statements or
take or cause to be taken any actions which reflect in a material adverse manner
upon Standard or an Affiliate or the business of any of the foregoing; Xxxxxxx
shall materially breach any covenants contained in this Plan or his Executive
Employment Agreement; or Xxxxxxx shall, directly or indirectly, engage or
participate on an equity or other basis in a business which is competitive of
the business of Standard or any Affiliate.
1.3 "Guaranteed Cash Value" shall mean the present value, as of the
last anniversary of the Policy to 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.
1.4 "Xxxxxxx'x Employment" shall mean the continuous employment of
Xxxxxxx, without interruption for any reason (including Permanent Disability)
for a period exceeding thirty (30) business days, in a supervisory, managerial
or executive position, from time to time, by Standard or any of its
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Affiliates or by any successor of any of them or any surviving corporation
resulting from a merger of any of them with another corporation.
1.5 "Permanent Disability" shall mean an inability due to bodily
injury, sickness or disease for Xxxxxxx to perform substantially all of the
duties of his employment with Standard, as such employment exists immediately
prior to the commencement of such bodily injury, sickness or disease.
1.6 "Policy" shall mean the insurance policy on the life of Xxxxxxx
which, for the purposes set forth in Section 2.1, Standard intends to acquire
and maintain during Xxxxxxx'x Employment.
1.7 "Policy Year" shall mean a policy year as defined in the Policy.
1.8 "Total Cash Value" shall mean the cash surrender value of the
Policy as of the last anniversary of the Policy to which premiums have been
paid, such cash surrender value being the sum of (a) the Guaranteed Cash Value,
(b) any due and unpaid dividend, (c) the Guaranteed Cash Value of any dividend
additions, (d) the value of any dividends left at interest and (e) any unearned
loan interest, and less any outstanding loans and loan interest.
1.9 "Withdrawable Dividends" shall mean a current dividend (if any)
payable under the Policy, dividends left in the Policy at interest and the cash
value of paid-up additional insurance purchased with dividends payable under the
Policy.
ARTICLE TWO
PURPOSE AND IMPLEMENTATION OF PLAN
2.1 The purpose of this Plan is to provide Xxxxxxx with certain
specified retirement benefits and/or a death benefit equal to the amount of
death benefit payable under an insurance policy on his life (the "Policy"),
taking into account for such purpose contemplated withdrawals from the Policy
from time to time to fund retirement benefits to be paid hereunder to Xxxxxxx
after he attains age sixty-five (65); provided, however, that Standard is to
retain from such death benefit payable under the Policy and the death benefit
payable to Xxxxxxx is to be reduced by the greater of (a) the Guaranteed Cash
Value of the Policy immediately preceding Xxxxxxx'x death or (b) the aggregate
amount of premiums or other sums paid by Standard or an Affiliate in connection
with the maintenance of the Policy prior to Xxxxxxx'x death. The policy is to be
acquired and maintained by Standard during Xxxxxxx'x Employment and is intended
to be acquired with premium rates which do not exceed Three Thousand Three
Hundred Sixty-Eight Dollars ($3,368.00) per year. The Policy is intended to be
fully paid for upon Xxxxxxx attaining
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age sixty-five (65) or upon his prior death, provided that Xxxxxxx'x Employment
continues until the occurrence of either such event. Provided that Xxxxxxx'x
Employment continues until he attains age sixty-five (65), Standard intends to
pay to Xxxxxxx the sum of Seventy-Five Thousand Dollars ($75,000.00) per year
until the earlier of Xxxxxxx'x eightieth birthday or his death. During such
period, Standard also intends to withdraw the sum of Seventy-Five Thousand
Dollars ($75,000.00) per year from Withdrawable Dividends. Upon the death of
Xxxxxxx (before or after attaining age 65), Standard further intends to pay, to
whomsoever Xxxxxxx may designate as beneficiary, or to his estate if there is no
named beneficiary, an amount equal to the death benefit heretofore described in
this Section 2.1.
2.2 To implement the funding of this Plan, application has been made by
Standard with the Guardian Life Insurance Company for an insurance policy on the
life of Xxxxxxx which is intended to provide an initial and minimum death
benefit of $100,000 and sufficient dividend accumulations (including dividends
which are reflected in the cash value of paid-up additional insurance purchased
with such dividends) which, together with current dividends, will enable
Standard to withdraw from such dividends the sum of Seventy-Five Dollars
($75,000.00) per year from and after Xxxxxxx attains age sixty-five (65) and
until he attains age eighty (80), or until his death if prior to attaining age
eighty (80). At such time as the Policy shall issue, a true, correct and
complete copy thereof shall be attached hereto as Exhibit "A" and shall become a
part hereof. The Policy and all rights thereunder, including the right to the
proceeds thereof, are to be owned exclusively by Standard and at all times shall
be subject to the claims of Standard's creditors.
2.3 It is the express intention of the parties that all annual payments
to be made to Xxxxxxx under this Plan shall be made by Standard only to the
extent of Withdrawable Dividends existing at the time that each annual payment
is due to Xxxxxxx and that the death benefit payable for the benefit of Xxxxxxx
under this Plan shall be paid by Standard only to the extent of the death
benefit received by Standard under the Policy, less the amount to be retained by
Standard from the death benefit received under the Policy as described in
Section 2.1.
2.4 It is intended by both parties that this Plan shall not
constitute an employment agreement for a fixed term.
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ARTICLE THREE
UNDERTAKING OF STANDARD
3.1 During Xxxxxxx'x Employment, Standard shall pay all premiums due in
connection with the Policy and, until Xxxxxxx attains age sixty-five (65), shall
have all policy dividends used to purchase paid-up additional life insurance
under the Policy and shall make such elections under the Policy as are
appropriate for such purpose.
3.2 Standard shall have and at all times retain all ownership and
related rights in the Policy (subject at all times to the claims of Standard's
creditors) and, except for the withdrawals described in Section 2.3, agrees that
during Xxxxxxx'x Employment it will not borrow against the cash value of the
Policy or otherwise encumber or hypothecate the Policy or any interest therein
for any purpose whatsoever.
3.3 Subject to the conditions and limitations set forth in this Section
3.3 and the other terms and provisions set froth in this Plan, Standard agrees
to pay to or for the benefit of Xxxxxxx the benefits hereinafter described:
(a) Provided that Xxxxxxx'x Employment continues until he
attains age sixty-five (65), Standard thereafter shall pay to Xxxxxxx
the sum of Seventy-Five Thousand Dollars ($75,000.00) per year until
the earlier of Xxxxxxx'x eightieth birthday or his death. The payment
of such sum shall be made on or before the sixtieth day of the first
Policy Year following Xxxxxxx'x 65th birthday and on or before the
sixtieth day of each succeeding Policy Year which commences prior to
the earlier of Xxxxxxx'x eightieth birthday or his death.
Notwithstanding anything contained herein to the contrary, Standard
shall be required to make each sum annual payment only to the extent of
Withdrawable Dividends existing at the time that such annual payment is
due to Xxxxxxx. Such payments to be made to Xxxxxxx shall not to be
reduced, however, by reason of any portion or all of Withdrawable
Dividends not being available to fund such payments because of claims
of creditors.
(b) Upon the death of Xxxxxxx during Xxxxxxx'x Employment or
after attaining age 65 if Xxxxxxx'x Employment continues until he
attains age 65, Standard shall pay to whomsoever Xxxxxxx may designate
as beneficiary, or to his
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estate if there is no named beneficiary, an amount equal to the full
death benefit payable under the Policy (if any) less an amount equal to
the greater of (i) the Guaranteed Cash Value of the Policy immediately
preceding Xxxxxxx'x death or (ii) the aggregate amount of premiums or
other sums paid by Standard or an Affiliate in connection with the
maintenance of the Policy prior to Xxxxxxx'x death. For the foregoing
purpose, if Xxxxxxx'x death occurs after he attains age sixty-five
(65), the death benefit payable under the Policy shall be determined on
the basis of the sum of Seventy-Five Thousand Dollars ($75,000) having
been withdrawn from Withdrawable Dividends on the first day of each
Policy Year beginning after Xxxxxxx'x sixty-fifth (65th) birthday
(whether or not such sum or any other sum in fact has been withdrawn).
(c) In the event that, prior to Xxxxxxx attaining age 65,
Xxxxxxx'x Employment terminates by reason of Permanent Disability and
the cause of such Permanent Disability is such that it qualifies as
disability for the purpose of any applicable disability waiver of
premium option with regard to the Policy and premiums are thereby
deemed to have been paid pursuant to such option, then, to the extent
of Withdrawable Dividends existing from time to time, the obligation to
make annual payments pursuant to subsection (a) shall not terminate by
reason of the termination of Xxxxxxx'x Employment, and the death
benefit payable pursuant to subsection (b) shall be payable if the
Policy has remained in force until the death of Xxxxxxx by reason of
the waiver of premiums pursuant to such option.
(d) Annual payments made by Standard to Xxxxxxx after he has
attained the age of sixty-five (65) shall be deemed to constitute
deferred compensation paid by Standard to Xxxxxxx. A lump sum payment
made by Standard to the designated beneficiary or estate of Xxxxxxx
following his death shall be deemed to constitute a death benefit paid
by Standard by reason of Xxxxxxx'x death.
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ARTICLE FOUR
UNDERTAKINGS OF XXXXXXX
4.1 Xxxxxxx shall fully cooperate in submitting to such examinations
and provide such other information as the insurance company may require from
time to time to enable Standard to obtain and maintain the Policy.
4.2 Xxxxxxx shall not take or fail to take action which will either
increase Standard's premium cost for the Policy or which would, directly of
indirectly, cause that Policy to lapse or otherwise be cancelled by the issuing
insurance company.
ARTICLE FIVE
RIGHTS IN THE EVENT OF
TERMIANTION OF EMPLOYMENT PRIOR TO AGE 65
5.1 In the event that Xxxxxxx'x Employment is terminated prior to
attaining age 65, by reason of his resignation or otherwise at his instance or
by Standard or an Affiliate (as the case may be) at its instance for Cause,
except as a result of Permanent Disability, then all the benefits payable to
Xxxxxxx under the Policy shall lapse and terminate. In that event Standard,
shall have the option: (i) to cancel the Policy and obtain and retain all
amounts then payable as a result of such cancellation; or (ii) continue the
Policy in full force and effect designating itself or whomsoever it may elect as
beneficiary thereunder; or (iii) otherwise deal with the Policy in any manner
allowable by law under the terms of the Policy. In case of Xxxxxxx'x Permanent
Disability, Standard shall continue to maintain said insurance as if such
disability had not occurred.
5.2 In the event that Xxxxxxx'x Employment is terminated prior to
attaining age 65, by reason of Permanent Disability or at the instance of
Standard or an Affiliate (as the case may be) other than for Cause:
(a) If prior to Xxxxxxx having attained age forty-seven (47),
then Xxxxxxx shall have the option, to be exercised by giving written
notice to Standard within ninety (90) days followed the termination of
Xxxxxxx'x Employment, to purchase the Policy by paying Standard an
amount equal to the greater of (i) the then Total Cash Value of the
Policy, without deduction for any penalties or charges which would be
applicable upon surrender of the Policy, or (ii) the aggregate amount
of premiums or other sums paid by Standard or an Affiliate in
connection with the maintenance of the Policy. Upon exercise by Xxxxxxx
of an option hereunder to
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purchase the Policy, Xxxxxxx thereafter shall be vested with full
rights of ownership in the Policy, free of all claims thereto by
Standard. If so requested in writing by Xxxxxxx, Standard agrees to
cooperate with Xxxxxxx in borrowing against the Total Cash Value of the
Policy in order to provide the required for payment to Standard.
(b) If subsequent to Xxxxxxx having attained age forty-seven
(47), then Xxxxxxx shall have the option, to be exercised by giving
written notice to Standard within ninety (90) days following the
termination of Xxxxxxx'x Employment, to purchase the Policy by paying
Standard an amount equal to the greater of (i) the then Guaranteed Cash
Value of the Policy, without deduction for any penalties or charges
which would be applicable upon surrender of the Policy, or (ii) the
aggregate amount of premiums or other sums paid by Standard or an
Affiliate in connection with the maintenance of the Policy.
(c) Upon exercise by Xxxxxxx of an option hereunder to
purchase the Policy and the transfer and assignment of the Policy to
Xxxxxxx pursuant to such exercise, Xxxxxxx thereafter shall be vested
with full rights of ownership in the Policy, free of all claims thereto
by Standard. If so interested in writing by Xxxxxxx, Standard agrees to
cooperate with Xxxxxxx in borrowing against the cash value of the
Policy in order to provide the required amount for payment to Standard.
Following the transfer and assignment of the Policy to Xxxxxxx pursuant
to his exercise of an option hereunder to purchase the Policy, Standard
shall have no further obligations pursuant to this Plan and shall be
entitled to receive from Xxxxxxx, at its request and as a condition to
such transfer and assignment, a release executed by Xxxxxxx as to all
of Standard's obligations pursuant to this Plan. Any such release shall
be in form and substance reasonably acceptable to Standard.
5.3 For the purposes of this ARTICLE FIVE, the determination as to
whose instance at which Xxxxxxx'x Employment is terminated and whether or not
Cause exists shall be made solely by Standard. Any such determination by
Standard shall be made with the use of reasonable judgment and criteria.
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ARTICLE SIX
MISCELLANEOUS
6.1 This Plan shall be construed and the performance hereunder
determined in accordance with the laws of the State of Illinois.
6.2 If the application for insurance as described herein shall be
rejected by the insurance company or if the premium rate payable therefor shall
exceed Three Thousand Three Hundred Sixty-Eight Dollars ($3,368.00) per year and
Standard shall be unwilling to pay the increased amount, then this Plan shall be
deemed to have been terminated and of no further force and effect.
6.3 This Plan shall be binding respectively upon the heirs, successors,
legal representatives of the parties hereto. The parties have executed this Plan
as of the date first above written.
STANDARD PARKING CORPORATION
By: /s/ Xxxxx Wakshaver,
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President
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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