Exhibit 10.10
EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of the 1st day of August, 1999, by
and between APCOA/STANDARD PARKING, INC., a Delaware corporation, having offices
in Chicago, Illinois ("EMPLOYER"), and XXXXXX X. XXXXXXX of Calabasas,
California ("EMPLOYEE").
RECITALS
A. Prior to the effective date hereof, Employee was providing
management services for Employer as an employee of D&E Parking, Inc. ("D&E"),
pursuant to the terms of that certain Executive Parking Management Agreement,
dated as of May 1, 1998, by and among Employer, D&E, Employee and Xxxx X. Xxxxx,
as amended by that certain First Amendment of even date herewith (as so amended,
the "MANAGEMENT AGREEMENT"). Employer is in the business of operating private
and public parking facilities for itself, its subsidiaries, affiliates and
others, and acting as a consultant and/or manager for parking facilities
operated by others throughout the United States (Employer and its subsidiaries
and affiliates, and other Employer-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 Employee's employment with D&E and hereunder,
Employee 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 V.
C. In addition to (and not in lieu of) Employee continuing to perform
his duties under the Management Agreement, Employer desires to employ Employee,
and Employee desires to be so employed, on and subject to the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of: (i) the foregoing premises, and;
(ii) the mutual covenants and agreements herein contained, including, but not
limited to, the agreement to arbitrate all disputes arising out of this
agreement, the Employer and Employee hereby covenant and agree as follows:
I. PRIOR EMPLOYMENT EXPERIENCE/NO CONFLICT
Employee represents that Employee's employment hereunder will not violate any
agreement or obligation to any third party.
II. AGREEMENT TO BE EMPLOYED - DUTIES/TITLE
Employer hereby employs Employee in the position of Chief Executive Officer of
Employer's Western Region (as designated by Employer) and as a Senior Vice
President of Employer. Employee shall hold this position and such other
positions as the Employer shall from time to time determine. Employee shall
perform duties in connection with Employee's employment as
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may be fixed from time to time by Employer. In the performance of his duties and
obligations under the Management Agreement and hereunder, Employee agrees to
faithfully and competently render Employee's services on a full-time basis, and
to devote Employee's best efforts and all of Employee's working time to the
business and affairs of Employer. Employee agrees to abide by the Code of
Business Conduct which has been or will be promulgated by Employer, and which
includes, but is not limited to, prohibitions on xxxxxxx xxxxxxx and the
disclosure of proprietary or confidential information. Employee acknowledges and
agrees that the last sentence of Section 2.3(a) of the Management Agreement
shall not be applicable to him during the Term of this Agreement. Instead,
Employee shall travel within and outside the Western Region, including without
limitation to Employer's headquarters in Chicago, Illinois, as often as may be
reasonably required by Employer and/or in order for Employee to properly perform
his duties hereunder.
III. COMPENSATION
Employer shall compensate Employee for Employee's services during the Term of
this Agreement as follows:
A. SALARY/PERFORMANCE-BASED COMPENSATION.
Employee shall receive a base salary of Seventeen Thousand Five
Hundred Dollars ($17,500.00) per annum, payable in accordance with the
payroll schedule of Employer as may be in effect from time to time during
the term hereof. The salary shall be subject to periodic review and, in
the sole discretion of Employer, may be adjusted upward without affecting
any of the other provisions of this Agreement.
In addition, Employee shall be eligible for annual
performance-based compensation ("PBC") in addition to his salary, which
will be based upon Employer's profitability and determined for fiscal
year 1999, in accordance with the provisions set forth in Exhibit A
attached hereto; provided, however, in no event will Employee's PBC for
Compensation Year 1999 be less than fifty percent (50%) of the Target
Amount (as specified and defined in Exhibit A). For fiscal years after
1999, the PBC shall be in accordance with the PBC program then in effect
or any replacement program adopted by Employer for operational Executive
Vice Presidents of the Employer.
B. BUSINESS EXPENSES.
Employee shall be reimbursed by Employer for those business
expenses authorized by Employer or which are necessarily and reasonably
incurred on behalf of Employer and which may properly be deducted by
Employer as business expenses for tax purposes.
IV. BENEFITS
A. HEALTH, DISABILITY AND LIFE INSURANCE.
Employee shall be entitled to participate during the Term in any
group health or salary continuation or life insurance plans made
available by Employer for its employees
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in the jurisdiction in which Employee is performing services for
Employer, subject to the terms, conditions and eligibility restrictions
set forth in such plans as from time to time in effect. The premiums for
coverage shall be paid by Employer and Employee in such proportion as may
be determined from time to time by Employer.
B. VACATIONS.
Employee shall be entitled to receive vacations consistent with
past practices under the Management Agreement.
C. OTHER BENEFITS.
Employer shall provide Employee with other perquisites (for
example, participation in Employer's 401(k) plan based upon Employee's
base salary hereunder, and stock options in the event of a public
offering) comparable to those being offered to other of Employer's
Executive Vice Presidents. Employee acknowledges and agrees that during
the Term, his right to receive such benefits shall be pursuant to this
Agreement, and Section 4.3 of the Management Agreement shall not be
applicable to him. Employer may, from time to time, provide other
benefits to Employee. However, any such additional benefits shall be made
available only at the discretion of Employer and may be withdrawn by
Employer without incurring any obligations whatsoever to Employee for so
doing.
V. PROTECTION OF EMPLOYER ASSETS
A. TRADE SECRET AND CONFIDENTIAL INFORMATION.
Employee recognizes and acknowledges that the acquisition and
operation of, and the providing of consulting services for, parking
facilities is a unique enterprise and that there are relatively few firms
engaged in these businesses in the primary areas in which the Parking
Companies operates. Employee further recognizes and acknowledges that as
a result of employment with the Parking Companies, Employee 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: (1) information relating to the Parking Companies'
manner and methods of doing business, including without limitation,
strategies for negotiating leases and management agreements; (2) 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; (3) 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; (4) the identities of beneficiaries under land trusts;
(5) 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; (6) information
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concerning the business affairs of any individual or firm doing business
with the Parking Companies; (7) 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 (8) other confidential
information and trade secrets relating to the operation of the Employer's
business (the matters described in this sentence hereafter referred to as
the "Trade Secret and Confidential Information").
B. CUSTOMER RELATIONSHIPS.
Employee understands and acknowledges that the Employer has
expended significant resources over many years to identify, develop, and
maintain its clients. Employee additionally acknowledges that the
Employer's clients have had continuous and long-standing relationships
with the Employer and that, as a result of these close, long-term
relationships, the Employer possess significant knowledge of its clients
and their needs. Finally, Employee acknowledges Employee's association
and contact with these clients is derived solely from employment with the
Employer. Employee further acknowledges that the Employer does business
throughout the United States and that Employee personally has significant
contact with the Employer customers solely as a result of his
relationship with the Employer in the Western Region.
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, Employee agrees that he shall:
(1) 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 Employer;
(2) use all reasonable precautions to assure that the Trade
Secret and Confidential Information are properly protected
and kept from unauthorized persons;
(3) make no use of any Trade Secret and Confidential
Information except as is required in the performance of his
duties for the Employer; and
(4) upon termination of his employment with the Employer,
whether voluntary or involuntary and regardless of the
reason or cause, or upon the request of the Employer,
promptly return to the Employer 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 Employer. 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,
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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 Employee from
using, at any time after the Employee's termination of employment with the
Employer, information which is in the public domain or knowledge acquired during
the course of his employment with the Employer which is generally known to
persons of the Employee's experience in other companies in the same industry.
D. ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS.
Employee agrees to assign to the Employer any and all intellectual
property rights including patents, trademarks, copyright and business
plans or systems developed, authored or conceived by Employee while so
employed and relating to the business of the Employer, and Employee
agrees to cooperate with the Employer's attorneys to perfect ownership
rights thereof in the Employer or any one or more of the Employer. This
agreement does not apply to an invention for which no equipment,
supplies, facility or Trade Secret and Confidential Information of the
Employer was used and which was developed entirely on Employee's own
time, unless (a) the invention relates either to the business of the
Employer or to actual or demonstrably anticipated research or development
of the Parking Companies, or (b) the invention results from any work
performed by Employee for the Parking Companies.
E. INEVITABLE DISCLOSURE.
Based upon the Recitals to this Agreement and the representations
Employee has made in Paragraphs V.A. and V.B. above, Employee
acknowledges that the Employer'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 the acknowledgments in Paragraphs V.A. and V.B.,
Employee further acknowledges that he inevitably would disclose the
Employer's Trade Secret and Confidential Information, including trade
secrets, should Employee serve as director, officer, manager, supervisor,
consultant, independent contractor, owner of greater than 1% of the
stock, representative, agent, or executive (where Employee'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 Employer engaged in providing parking facility
management services because it would be impossible for Employee to serve
in any of the above capacities for such a competitor of the Employer
without using or disclosing the Employer's Trade Secret and Confidential
Information, including trade secrets.
F. NON-SOLICITATION.
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Employee agrees that while employed by the Employer and for a
period of eighteen (18) months after the Date of Termination, Employee
shall not, directly or indirectly:
(1) without first obtaining the express written permission of the
Employer's General Counsel which permission may be withheld solely
in the Employer's discretion, directly or indirectly contact or
solicit business from any client or customer of the Employer with
whom Employee had any contact or about whom Employee acquired any
Trade Secret or Confidential Information during employment with
the Employer or about whom Employee has acquired any information
as a result of Employee's employment with the Employer. Likewise,
Employee shall not, without first obtaining the express written
permission of the Employer's General Counsel which permission may
be withheld solely in the Employer's discretion, directly or
indirectly contact or solicit business from any person responsible
for referring business to the Employer or who regularly refers
business to the Employer with whom Employee had any contact or
about whom Employee acquired any Trade Secret or Confidential
Information during employment with the Employer or about whom
Employee has acquired any information as a result of Employee's
employment with the Employer. Employee'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
(2) 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 Employer 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 Employer. If the
Employee, after the termination of his employment hereunder, has
any question regarding the applicability of the above provisions
to a potential employment opportunity, Employee acknowledges that
it is Employee's responsibility to contact the Employer so that
the Employer may inform Employee of its position with respect to
such opportunity.
G. REMEDIES.
Employee acknowledges that Employer would be irreparably injured
by a violation of the covenants of this Paragraph V, and agrees that
Employer, in addition to any other remedies available to it by reason of
such breach or threatened breach, shall be entitled to a preliminary
injunction, temporary restraining order or other equivalent relief,
restraining Employee from any actual or threatened breach of any of the
provisions of this Paragraph V, to the extent that such an action is
consistent with the provisions of
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Paragraph VIII, below. If a bond is required to be posted in order for
any Employer Entity 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 Employee's
termination of employment, and independent of any alleged action or
alleged breach of any provision hereby by Employer.
VI. TERM
The term (the "Term") of Employee's employment hereunder shall be deemed to have
commenced as of the date, first written above, and shall continue in full force
and effect thereafter at will until terminated by either party upon written
notice to the other.
VII. NOTICES
Any notice which any party shall be required or shall desire to serve upon the
other shall be fully given if mailed by registered or certified mail, postage
prepaid, addressed:
In the case of EMPLOYEE to: In the case of EMPLOYER to:
Xxxxxx Xxxxxxx Xxxxxx X. Xxxxx
0000 Xxxxxxxx Xxxx Xxxxx Executive Vice President and General Counsel
Xxxxxxxxx, Xxxxxxxxxx 00000 APCOA/Standard Parking
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
VIII. ARBITRATION OF DISPUTES
A. SCOPE OF AGREEMENT.
Employer and Employee agree to take all reasonable steps to
resolve any employment-related legal and/or judicial disputes between
them quickly and fairly. Should such matters remain unresolved, Employer
and Employee agree that final and binding arbitration shall be the
exclusive remedy for any dispute between them relating to all common law,
statutory, legal or judicial claims, including, but not limited to, any
claims for breach of contract and for violation of laws forbidding
discrimination on the basis of race, color, religion, gender, age,
national origin, disability, or any other legally protected status.
Explicitly excluded from this provision are claims regarding or relating
to amount and/or adequacy of compensation, promotion, transfer,
reassignment of job duties and responsibilities, and discipline, except
to the extent that such disputes involve common law, statutory, legal or
judicial claims.
This Agreement does not preclude administrative claims for
workers' compensation or unemployment compensation benefits or the filing
of charges with government agencies.
Any controversy over whether a dispute is an arbitrable dispute or
as to the interpretation or enforceability of the paragraph with respect
to such arbitration shall be determined by the arbitrator. This Agreement
does not affect substantive rights; it simply
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governs forum. For example, the arbitrator is to apply the same statutes
of limitations and to award the same relief that a court would in a
judicial proceeding.
B. PROCEDURE.
Arbitration shall be before a single arbitrator in the city in
which the Employee's immediate supervisor maintains his/her main office
when the matter is submitted to arbitration, unless the parties mutually
agree to hold the arbitration in a different location. The arbitration
will be administered in accordance with the employment dispute rules of
the American Arbitration Association (AAA), and its procedures then in
effect. If the parties cannot agree on an arbitrator, then the AAA rules
will govern selection. The Employer will pay the fees of the AAA and the
arbitrator. However, in the event that the Employee submits a matter to
arbitration, he/she shall be responsible for contributing to such fees an
amount equivalent to the amount required to file a complaint of the same
type in the state court which is geographically closest to the site of
the arbitration.
The arbitrator's award is to be in writing, with reasons given and
evidence cited for the award. The arbitrator shall have the discretion to
award fees (including administrative charges, costs and/or reasonable
attorney's fees actually expended) to the prevailing party, in accordance
with controlling law. Any court of competent jurisdiction may enter
judgment upon the award, either by: (1) confirming the award, or; (2)
vacating, modifying or correcting the award: (a) on any ground referred
to in the U.S. Arbitration Act, (b) where the findings of fact are not
supported by substantial evidence, or; (c) where the conclusions of law
are erroneous.
IX. CHOICE OF LAW
This Agreement shall be construed in accordance with the laws and decisions of
the State of Illinois.
X. MISCELLANEOUS
A. This Agreement supersedes all prior agreements and understandings
either oral or in writing between the parties hereto, and
expresses the whole and entire agreement between the parties with
reference to Employee's employment. In the event of a conflict
between any of the provisions contained in this Agreement and the
provisions of the Management Agreement, the provisions contained
herein shall govern and control.
B. No purported change or modification or waiver of any provisions of
this Agreement shall be valid unless the same is in writing and
signed by the party against whom it is sought to be enforced.
C. If any provision of this Agreement is unenforceable, the parties
agree that that provision and all other provisions of the
Agreement shall remain in effect to the fullest extent permitted
by law.
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D. This Agreement shall be binding upon Employee's heirs, executors,
administrators or other legal representatives. Employee's duties
hereunder are personal and may not be assigned.
E. Employee has executed and delivered this Agreement as Employee's
free and voluntary act, after having determined that the
provisions contained herein are of a material benefit to Employee,
and that the duties and obligations imposed on Employee hereunder
are fair and reasonable and will not prevent Employee from earning
a livelihood following the termination of Employee's employment
with Employer.
F. Employee 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 hereof with an attorney or
other representative if Employee so chooses.
IN WITNESS WHEREOF, Employee and Employer have executed this Agreement as of the
day and year first written above.
EMPLOYER: EMPLOYEE:
APCOA/STANDARD PARKING, INC.
By: /s/ Xxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
-------------------------------- ------------------------
Name: Xxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
------------------------------
Title: Sr. E.V.P.
-----------------------------
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EXHIBIT A
TO
EMPLOYMENT AGREEMENT DATED
AS OF AUGUST 1, 1999
BETWEEN
XXXXXX XXXXXXX
AND
APCOA/STANDARD PARKING, INC.
PERFORMANCE BASED COMPENSATION PLAN
FINANCIAL & ADMINISTRATIVE SENIOR MANAGEMENT
CEO, Western Region
Name: Xx Xxxxxxx Compensation Year: 1999
---------- --------
Approved By:
VP: N/A Target Amount $40,000.00
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SVP: N/A
----------
All based on Company Performance
EVP: __________
COMPANY PERFORMANCE
For every 1 % that the Company exceeds or falls short of budgeted adjusted
EBITDA, the employee will receive a 5% increase or decrease in the targeted
amount for Company performance. The maximum payment is 200% of the target, The
Company must meet at least 80% of budgeted adjusted EBITDA(1) for any amount to
be paid for Company performance.
Example: If the Company achieves 102% of budgeted adjusted EBITDA, the
employee will receive 110% of the target for Company performance.
Total amount to be paid due to actual 1999 Company performance is:
--------------------------------------------------------------------------------
Payment of the above Performance Based Compensation ("PBC") is contingent upon
your continued employment with the Company as of December 31, 1999.
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-----------------
(1) EBITDA could be adjusted for any number of reasons. By way of example,
EBITDA always would be adjusted to reflect any unbudgeted acquisitions that
occurred during the year.
