Exhibit 10.1
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement")
by and between Standard Parking Corporation, a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxx (the "Executive"), dated as of the 18th day of
May 2006 (the "Agreement Date").
RECITALS
A. Prior to the Agreement Date and continuing to the Effective Date,
Executive was and will be employed by the Company pursuant to a Management
Employment Agreement dated August 1, 1999 (the "1999 Employment Agreement"). 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
and Canada (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 6 hereafter.
C. The Company and Executive desire to continue Executive's employment
relationship with the Company after the present termination date of the 1999
Agreement by amending and restating the terms of Executive's 1999 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 and (iii) the salary
continuation payment payable on termination, the Company and Executive hereby
covenant and agree as follows:
1. 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 beginning on May 1, 2007 (the "Effective Date") and
ending April 30, 2010 (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 one hundred twenty (120) days
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 6 of this Agreement shall remain in full force and
effect.
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2. Position and Duties. During the Employment Period, the Executive shall
serve as Executive Vice President-Operations (West Division) of the Company,
with the duties, authority and responsibilities as are commensurate with such
position and as are customarily associated with such position. Executive shall
hold such other positions in the Company or any of the other Parking Companies
as may be assigned to him from time to time by the Chief Executive Officer of
the Company. The Executive shall report directly to the Chief Executive Officer
of the Company or as otherwise directed by the Chief Executive Officer. During
the Employment Period, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive shall devote full attention and
time during normal business hours to the business and affairs of the Company
and, to the extent necessary to discharge the responsibilities assigned to the
Executive under this Agreement, use the Executive's reasonable best efforts to
carry out such responsibilities faithfully and efficiently. The Executive shall
not, during the terms of this Agreement, engage in any other business activities
that will interfere with the Executive's employment pursuant to this Agreement.
Executive shall discharge his duties and responsibilities under this Agreement
in accordance with the Company's Code of Conduct presently in effect or as
amended and modified from time to time hereafter.
3. Compensation.
(a) Base Salary. During the Employment Period, the Executive shall
receive an annual base salary of $290,000 (the "Annual Base Salary"), payable in
accordance with the Company's normal payroll practice for executives as in
effect from time to time. The Annual Base Salary shall be subject to review
annually in accordance with the Company's review policies and practices for
executives as in effect at the time of any such review.
(b) Bonus. For each calendar year (or portion thereof) during the
Employment Period, the Executive shall be eligible to receive an annual bonus
(the "Annual Bonus") based upon the terms and conditions of an annual bonus
program established by the Company for similarly-situated Executive Vice
Presidents (the "EVP Bonus Program"). It currently is expected that the Annual
Bonus will be paid by March 15th of the calendar year immediately following the
calendar year (or portion thereof) with respect to which the Annual Bonus is
earned. The Executive's annual target bonus under the EVP Bonus Program shall be
$100,000 ("Target Annual Bonus"), which shall be prorated with respect to any
partial calendar year within the Employment Period (it being acknowledged that
Executive's Target Annual Bonus for the period from May 1 through December 31,
2007 shall be $66,667), with the actual amount of the Annual Bonus being
determined in accordance with the terms of the EVP Bonus Program.
Notwithstanding the foregoing sentence, for each calendar year (or portion
thereof) during the Employment Period, Executive's actual Annual Bonus shall not
be less than 90% of the Target Annual Bonus.
(c) Equity Plan. In the event the Company adopts an equity plan or
program (the "Equity Plan") for its key executives during the term of this
Agreement, the Executive shall be entitled to participate in the Equity Plan on
a similar basis as similarly situated executive vice presidents of the Company
from and after the effective date thereof in accordance with the terms and
conditions of the Equity Plan.
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(d) Other Benefits. In addition to the foregoing, during the Employment
Period: (i) the Executive shall be entitled to participate in savings,
retirement, and fringe benefit plans, practices, policies and programs of the
Company as in effect from time to time, including, but not limited to the
Company's 401(K) plan, on the same terms and conditions as those applicable to
peer executives; (ii) the Executive shall be entitled to four (4) weeks of
annual vacation (prorated for the calendar year ending December 31, 2007), to be
taken in accordance with the Company's vacation policy as in effect from time to
time; and (iii) the Executive and the Executive's family shall be eligible for
participation in, and shall receive all benefits under medical, disability 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 as of the Commencement Date of this
Agreement.
(e) Business Expenses. Executive shall be reimbursed by the Company for
those business expenses authorized by the Company and those for which are
necessarily and reasonably incurred on behalf of the Company and which may be
properly be deducted by the Company as business expenses for federal tax
purposes.
4. Termination of Employment.
(a) Death or Disability. In the event of the Executive's death during
the Employment Period, the Executive's employment with the Company shall
terminate automatically. The Company, in its discretion, shall have the right to
terminate the Executive's employment because of the Executive's Disability
during the Employment Period. For purposes of this Agreement, "Disability" shall
mean the absence of the Executive from the Executive's duties with the Company
on a full-time basis for 180 consecutive business days, or for periods
aggregating 180 business days in any period of twelve months, as a result of
incapacity due to mental or physical illness or injury which is determined to be
total and permanent by a physician selected by the Company or its insurers. A
termination of the Executive's employment by the Company for Disability shall be
communicated to the Executive by written notice, and shall be effective on the
30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), unless the Executive returns to full-time performance of the
Executive's duties before the Disability Effective Date.
(b) By the Company. In addition to termination for Disability, the
Company may terminate the Executive's employment during the Employment Period
for Cause or without Cause. "Cause" means:
(i) the continued and willful or deliberate failure of the Executive
to substantially perform the Executive's duties, or to comply with the
Executive's obligations, under this Agreement (other than as a result of
physical or mental illness or injury); or
(ii) illegal or gross misconduct by the Executive, in either case
that is willful and results in material damage to the business or reputation of
the Company.
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Upon the occurrence of events constituting Cause as defined in subsection (i) of
this paragraph (b), the Company shall give the Executive advance notice of any
such termination for Cause and shall provide the Executive with a reasonable
opportunity to cure.
(c) Voluntarily by the Executive. The Executive may terminate his
employment by giving written notice thereof to the Company, provided, however,
that if Executive terminates his employment for Good Reason, 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
5(a) below. "Good Reason" means any of the following:
(ii) the Company requires or otherwise takes such action as would
require the Executive's relocation Los Angeles, California;
(ii) a reduction in the Executive's Annual Salary, which is not
accompanied by a similar reduction in annual salaries of similarly situated
executive's of the Company; or
(iii) a breach by the Company of this Agreement after Executive has
given advance written notice of any such breach to the Company and a reasonable
opportunity to cure.
(d) Date of Termination. 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, as set forth
in notice from the Company, is effective, the date that notice of termination is
provided to the Executive from Company of a termination of the Executive's
employment by the Company other than for Cause or Disability, or the date on
which the Executive gives the Company notice of termination of employment, as
the case may be.
5. Obligations of the Company upon Termination.
(a) By the Company Other Than for Cause or Disability. If, during the
Employment Period, the Company terminates the Executive's employment, other than
for Cause or Disability, the Company shall, for the duration of the Employment
Period, as in effect immediately before the Date of Termination, continue to pay
the Executive the Annual Base Salary and the Annual Bonus through the end of
such Employment Period, as and when such amounts would be paid in accordance
with paragraph 3(a) and (b) above, provided the amount of any Annual Bonus so
paid shall equal the Target Annual Bonus. The Company shall also continue to
provide for the same period welfare benefits to the Executive and the
Executive's family, at least as favorable as those that would have been provided
to them under clause (d)(iii) of Paragraph 3 of this Agreement if the
Executive's employment had continued until the end of the Employment Period,
provided, that during any period when the Executive is eligible to receive such
benefits under another employer-provided plan, the benefits provided by the
Company under this paragraph 5(a) may be made secondary to those provided under
such other plan and shall pay Executive any accrued but unpaid vacation pay.
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(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, the Company shall make, within
30 days after the Date of Termination, a lump-sum cash payment to the
Executive's estate equal to the sum of (i) the Executive's Annual Base Salary
through the end of the calendar month in which death occurs, (ii) any earned and
unpaid Annual Bonus for any calendar year ended prior to the Date of Termination
and a pro-rated Target Bonus for services to the Date of Termination, (iii) any
accrued but unpaid vacation pay and (iv) any other vested benefits to which the
Executive is entitled, in each case to the extent not yet paid, except for any
death benefit, in which case the death benefit shall be paid to Executive's
estate within seven (7) days following receipt of any such death benefit by the
Company from the insurer.
(c) Disability. In the event the Executive's employment is terminated by
reason of the Executive's Disability during the Employment Period in accordance
with paragraph 4(a) hereof, the Company shall pay to the Executive or the
Executive's legal representative, as applicable, (i) the Executive's Annual Base
Salary for the duration of the Employment Period in effect immediately before
the Date of Termination, provided that any such payments made to the Executive
shall be reduced by the sum of the amounts, if any, payable to the Executive
under any disability benefit plans of the Company or under the Social Security
disability insurance program, (ii) any earned and unpaid Annual Bonus for any
calendar year ended prior to the Date of Termination and a prorated Target Bonus
for services to the Date of Termination, and (iii) any other vested benefits to
which the Executive is entitled, in each case to the extent not yet paid,
including, but not limited to accrued but unpaid vacation pay.
(d) Cause; Voluntary Termination: If the Executive's employment is
terminated by the Company for Cause or the Executive voluntarily terminates his
employment during the Employment Period, the Company shall pay the Executive (i)
the Annual Base Salary through the Date of Termination (ii) the Annual Bonus for
any calendar year ended prior to the Date of Termination, and (iii) any other
vested benefits to which the Executive is entitled, in each case to the extent
not yet paid, including, but not limited to accrued but unpaid vacation pay and
the Company shall have no further obligations to the Executive under this
Agreement. A notice from Executive to the Company of his intention not to renew
the Agreement pursuant to paragraph 1 hereof shall not be considered a voluntary
termination under this subparagraph (d).
6. Protection of Company Assets.
(a) Trade Secret and Confidential Information. The Executive 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. Executive also acknowledges that he has
been instrumental in the development of the Parking Companies' ancillary
vertical businesses, including sweeping and scrubbing, security services and
commercial and residential property management services (hereinafter
collectively referred to as (the "Ancillary Services"). Executive further
recognizes and acknowledges that as a result of his employment with the Parking
Companies, the 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, contracts for
Ancillary Services (individually hereinafter referred to as an "Ancillary
Service Contract"), 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 Ancillary Services or
consulting services; and (viii) other confidential information and trade secrets
relating to the operation of the Company's business, including the Ancillary
Services (the matters described in this sentence hereafter referred to as the
"Trade Secret and Confidential Information").
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(b) Customer Relationships. The Executive understands and acknowledges
that the Company has expended significant resources over many years to identify,
develop, and maintain its clients. The 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,
the Executive acknowledges the Executive's association and contact with these
clients is derived solely from his employment with the Company. The Executive
further acknowledges that the Company does business throughout the United States
and that the Executive personally has significant contact with the Company
customers solely as a result of his relationship with the Company.
(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, the 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;
(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
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(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 the
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 Rights. The 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 the Executive while so employed and relating to the business of
the Company, and the 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 the 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 the Executive for the
Parking Companies.
(e) Inevitable Disclosure. Based upon the Recitals to this Agreement
and the representations the Executive has made in paragraphs 6(a) and 6(b)
above, the 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 6(a) and 6(b), the
Executive further acknowledges that he inevitably would disclose the Company's
Trade Secret and Confidential Information, including trade secrets, should the
Executive serve as director, officer, manager, supervisor, consultant,
independent contractor, owner of greater than 1% of the stock, representative,
agent, or executive (where the 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 or the Ancillary Services because it would be
impossible for the Executive to serve in any of the above capacities for such a
competitor of the Company without using or disclosing the Company's Trade Secret
and Confidential Information, including trade secrets. The above acknowledgment
concerning inevitable disclosure is a rebuttable presumption. Executive may, in
particular circumstances, rebut the presumption by proving by clear and
convincing evidence that the Executive would not inevitably disclose trade
secret or confidential information were he to accept employment or otherwise act
in a capacity that would arguably violate this Agreement.
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(f) Non-Solicitation. The Executive agrees that while he is employed
by the Company and for a period of eighteen (18) months after the Date of
Termination, the 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 the Executive had any contact or
about whom the Executive acquired any Trade Secret or Confidential Information
during his employment with the Company or about whom the Executive has acquired
any information as a result of his employment with the Company. Likewise, the
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 the Executive had any contact or about
whom the Executive acquired any Trade Secret or Confidential Information during
his employment with the Company or about whom the Executive has acquired any
information as a result of his employment with the Company. The 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 of the Trade Secret and Confidential
Information of the Parking Companies set forth in Paragraph 6 of 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, the Executive acknowledges
that it is his responsibility to contact the Company so that the Company may
inform the Executive of its position with respect to such opportunity.
(g) Salary Continuation Payments. As additional consideration for the
representation and restrictions contained in this paragraph 6, the Company
agrees to pay Executive if Executive's termination occurs for any reason other
than Cause or due to Executive's termination pursuant to paragraph 5 (d)
("Voluntary Termination"), an amount equal to the Executive's annual salary for
up to eighteen (18) months (the "Salary Continuation Payments") following the
Date of Termination, payable in equal monthly or more frequent installments in
accordance with the Company's normal payroll practices then in effect. In the
event of a Voluntary Termination, the Salary Continuation Payments shall be
reduced to an amount equal to $50,000, payable over a 12-month period following
the Date of Termination in equal monthly installments. Notwithstanding anything
to the contrary in this Agreement, either expressly or by implication to the
contrary, Executive's notice of his intention not to renew this Agreement given
in the manner contemplated in paragraph 1 hereof shall not be deemed to be a
Voluntary Termination and, therefore, shall not reduce the amount of Executive's
Salary Continuation Payments. 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. The termination of Salary
Continuation Payments shall not waive any other rights at law or equity which
the Company may have against Executive by virtue of his breach of this
Agreement. The Company's obligation to make Severance Payments shall also cease
with respect to periods after Executive's death.
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(h) Remedies. The Executive acknowledges that the Company would be
irreparably injured by a violation of the covenants of this paragraph 6 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 the Executive from
any actual or threatened breach of any of the provisions of this paragraph 6. 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 the 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 6 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 6 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 the 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.
(j) Permitted Activities. (i) Notwithstanding the foregoing, so long
as Executive complies with this paragraph 6(j), it shall not be considered a
violation of the provisions of paragraphs 6(e) or 6(f) above for the Executive
during the non-solicitation period (x) to own Permitted Investments, (y) to own
or sell any interest in the Permitted Investments or (z) to own or sell any
interest in any Permitted Real Estate. If any Permitted Investment or Permitted
Real Estate includes a parking facility or requires Ancillary Services, then the
Executive shall follow the procedures set forth in subsections (ii) and (iii)
below. In the case of (1) a parking facility or (2) property requiring Ancillary
Services in the Permitted Investment or Permitted Real Estate that, in either
case, is managed or leased by the Company or for which the Company is providing
Ancillary Services at any time, the Executive shall follow such procedures with
respect to any extension or renewal of any such management agreement, lease or
Ancillary Service Contract. In the case of a parking facility in the Permitted
Investment or Permitted Real Estate that is not being managed or leased by the
Company or for which Ancillary Services are not being provided by the Company at
the time D & E or the Executive acquires an interest in Permitted Real Estate or
Permitted Investment, the Executive shall follow such procedures at the time he
acquires the interest.
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(ii) In the case of any Permitted Investment or Permitted Real Estate
controlled by Executive or his Affiliates, the Executive shall initiate
negotiations with the Company in an attempt to determine mutually agreeable
terms upon which the Company will mange or lease the parking facility or provide
one or more of the Ancillary Services, failing which the Company shall have a
right of first refusal with respect to any management agreement, lease or
Ancillary Service Contract that may be negotiated with any independent
third-party parking operator or provider of any of the Ancillary Services.
(iii) In the case of any Permitted Investment or Permitted Real Estate not
controlled by Executive, Executive shall use reasonable and good faith efforts
to cause the controlling person or entity to initiate negotiations with the
Company in an attempt to determine mutually agreeable terms pursuant to which
the Company would manage or lease the parking facility and/or provide Ancillary
Services.
(iv) For purposes of this Agreement:
a. "Permitted Investments" shall mean Executive's ownership interest
in D & E Parking, Inc, a California corporation ("D & E") and any
investment or ownership interest of D & E, direct or indirect, in
real property or commercial or residential rental property.
b. "Permitted Real Estate" shall mean any commercial or residential
rental property owned, operated and/or managed, directly or
indirectly, by Executive or his Affiliates.
c. "Affiliates" shall mean any member of Executive's family, any
trust a principal beneficiary of which is the Executive or any
such member of the Executive's family, and any person that
directly, or through one or more intermediaries, is controlled by
the Executive and/or one or more of such members of the
Executive's family and/or one or more such trusts.
d. A person shall be considered to "control" any other person with
respect to which the first person possess, directly or
indirectly, the power to direct or cause the direction of
management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract, by the
terms of any trust agreement, or otherwise).
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7. 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).
8. 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):
In the case of Executive to: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
In the case of the Company to: Standard Parking Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
9. Applicable Law; Submission to Jurisdiction. This Agreement shall be
construed in accordance with the laws and decisions of the State of Illinois in
the same manner applicable to contracts made and to be performed entirely within
the State of Illinois and without regard to the conflict of law provisions
thereof. Executive and the Company agree to submit himself and itself, as
applicable, to the non-exclusive general jurisdiction of any United States
federal or Illinois state court sitting in Chicago, Illinois and appellate
courts thereof, in any legal action or proceeding relating to this Agreement or
Executive's employment with the Company.
10. Nonalienation. The interests of the Executive under this Agreement are
not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Executive or the Executive's beneficiary.
11. Amendment. This Agreement may be amended or cancelled only by mutual
agreement of the parties in writing without the consent of any other person.
12. 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.
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13. 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, of
all or substantially all of the Company's assets and business. The Executive's
duties hereunder are personal and may not be assigned.
14. 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.
15. Acknowledgement by Executive. The 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 hereof with an attorney or other
representative, if he so chooses. The 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, the Executive and the Company have executed this
Agreement as of the day and year first written above.
STANDARD PARKING CORPORATION
By:_____________________________
Xxxxx X. Xxxxxxx
President and Chief Executive Officer
EXECUTIVE:
--------------------------------
Xxxxxx X. Xxxxxxx
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