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Exhibit 10.8
EXECUTIVE TRANSITION EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed as of the 1st day of April, 1998 by and between
APCOA, INC., a Delaware corporation with offices at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxx 00000 (the "Company"), and XXXXX X. XxXXXXX (the "Executive").
W I T N E S E T H:
WHEREAS, the Company is engaged in the business of operating and managing
open air parking lots and indoor garages and ramps for the purpose of parking
motor vehicles on a leasehold, license, concession or management fee basis
through the United States under agreement with municipalities, owners of
properties, and/or otherwise (the "Business of the Company"); and
WHEREAS, the Executive has been employed by the Company in a management
capacity for several years and during the course of his employment, the
Executive has become an experienced and valuable employee and is knowledgeable
with respect to the Business of the Company, its trade secrets, customers,
market areas, sources of supply and manner of doing business; and
WHEREAS, the Company desires to continue to employ the Executive in a
transition capacity and the Executive desires to continue to work for the
Company in this capacity upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises hereto and the agreements
and covenants hereinafter contained, the parties hereto, intending to be
legally bound, mutually agree as follows:
1. Employment and Duties.
The Company hereby employs the Executive, as a transition employee to
serve as Executive Vice President Corporate Development of the Company (or
under such title as the
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President may hereafter assign to him), since Executive's previous position was
eliminated as of April 1, 1998. The Executive hereby accepts employment upon the
terms and conditions hereinafter set forth. The Executive shall be responsible
for operations of the Company as set forth and prescribed by Company operating
procedure and policy, corporate standards, and contractual guidelines. He shall
report to the President or his designee and perform such duties as may be
reasonably assigned to him by such officer. The Executive agrees to comply in
all material respects with the Standards of Conduct set forth in Exhibit A
hereof ("Standards of Conduct"). The Executive shall devote his entire time,
attention and energies to the Business of the Company, and shall not, during the
term of this Agreement, engage in any other business activities that will
interfere with the Executive's employment pursuant to this Agreement.
2. Term.
The term of this Agreement shall be for a period eighteen (18) months
commencing on April 1, 1998 and ending on September 30, 1999.
3. Compensation and Other Benefits.
For the services to be rendered by him pursuant to this Transition
Employment Agreement, the Company agrees to provide the Executive, so long as
he shall be employed by the Company, the following compensation and benefits:
(a) Salary at the rate of not less than $190,000.00 per annum ("Base
Salary"), payable not less often than monthly in equal installments at the
end of each month. The Base Salary figure shall be reviewed annually and
may be increased at the sole discretion of the President. Any such increase
in the Base Salary shall be deemed for all purposes hereunder to be an
amendment to this Agreement and this Agreement as so amended shall remain
in effect until otherwise terminated as provided herein.
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(b) Bonus for 1998 of $76,000.00 will be paid on or before April 15, 1999.
Bonus for 1999 shall be paid on or before April 15, 2000, according to the
Executive Bonus Plan set forth in Exhibit B hereof.
(c) Group health and welfare coverages, other fringe benefits such as are
enjoyed by senior executives of the Company generally, and such other
emoluments and fringe benefits as shall be determined by the Company from time
to time.
(d) Four (4) weeks of vacation annually during which time the Executive's
compensation will be paid in full and all other benefits under this Agreement
shall continue to be provided to him.
(e) The Company will furnish the Executive with an automobile, will
provide appropriate insurance coverage for such automobile, and will reimburse
the Executive for all gasoline and maintenance costs relating to such
automobile. Any such reimbursement shall be conditioned upon the Executive
presenting to the Company, in accordance with applicable Company policies and
procedures, an itemized account concerning his use of the automobile and
distinguishing between use in connection with the Business of the Company and
otherwise.
(f) The Company will reimburse the Executive for reasonable business
expenses incurred by the Executive relating to the conduct of the Business of
the Company. Any such expense reimbursement shall be conditioned upon the
Executive presenting to the Company, in accordance with applicable Company
policies and procedures, an itemized account of such expenses with supporting
documents. Reimbursable expenses shall include reasonable and necessary
expenses for entertainment, travel, meals and hotel accommodations.
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(g) The Executive shall be provided with directors and officers liability
insurance coverage to the same extent as the other Directors and/or senior
officers of the Company, and shall be indemnified by the Company to the full
extent permitted by law against liability claims arising out of his activities
as an employee of the Company or a member of the Board.
(h) The Company will continue to provide a Supplemental Pension Plan as
described in Exhibit C.
(i) The Company will provide Executive severance pay in the gross amount
of $157,872.00 on April 10, 1998.
(j) The Company shall pay Executive a severance bonus in the amount of
$66,500.00 on September 30, 1998.
(k) Phantom Equity and Stock Plans. During the 1998 calendar year, the
Company shall adopt an equity incentive plan or program (the "Equity Plan") in
which certain of the Company's key executives will be eligible to participate.
During the Employment Period, 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. Benefits available to Executive under the
terms of such Equity Plan shall be no less than the benefits available to peer
executives. Furthermore, Executive shall participate in any stock awards or
stock options ("stock plan") to the same extent and on the same terms as are
available to peer executives. For purposes of this Agreement, the term "peer
executives" shall refer to executive vice presidents of Company, which term
shall not include executive vice presidents of any subsidiary companies or
affiliates.
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4. Termination of Agreement.
(a) This Agreement shall terminate upon the death of the Executive. Upon
the Executive's death, a beneficiary (the "Beneficiary") designated by the
Executive as prescribed in Section 12 shall be entitled to receive:
(i) the amount of the Executive's Base Salary through the date
of his death;
(ii) any accrued by unpaid amount under Section 3(b) and the
amount determined under Section 3(b) hereof for the Company's fiscal year
in which the Executive's death occurs as though the Executive had survived
and continued to work for the Company pursuant to this Agreement through
the end of such fiscal year, payable at the time prescribed in Exhibit B;
and
(iii) an aggregate amount equal to the sum of (A) the annual Base
Salary at the time of the Executive's death, and (B) $9,600.00 (which
represents the estimated annual value of the Executive's right to use of an
automobile provided by the Company and related benefits described in
Section 3(e) hereof), payable in twelve (12) equal monthly installments
commencing on the first day of the month next following the Executive's
death.
In addition, for a period of twelve (12) months following the Executive's death,
(a) the Company shall continue to provide the benefits under Section 3(c) to
such persons who would have been entitled to such benefits had the Executive
survived and continued to be employed by the Company hereunder for such twelve
(12) month period.
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(b) This Agreement shall terminate in the event of the Executive's
termination of employment because of disability (as defined below). In such
event, the Executive shall be entitled to receive:
(i) the amount of the Executive's Base Salary through the
date of his termination of employment;
(ii) any accrued but unpaid amount under Section 3(b) and the
amount determined under Section 3(b) hereof for the Company's fiscal year
in which the Executive's disability occurs as though the Executive had
continued to work for the Company pursuant to this Agreement through the
end of such fiscal year, payable at the time prescribed in Exhibit B;
and
(iii) an aggregate amount equal to the sum of (A) the annual
Base Salary at the time of the Executive's disability and (B) $9,600.00
(which represents the estimated annual value of the Executive's right to
use of an automobile provided by the Company and related benefits
described in Section 3(e) hereof), payable in twelve (12) equal monthly
installments commencing on the first day of the month next following
the Executive's termination of employment; provided, however, that such
payments shall be reduced by any amounts payable to the Executive under
any disability benefit program (whether or not insured) maintained by the
Company.
In addition, for a period of twelve (12) months following the Executive's
termination of employment because of disability, the Company shall continue to
provide the benefits under Section 3(c) to such persons (including the
Executive) who would have been entitled to such benefits had the Executive
continued to be employed by the Company for such twelve (12) month period.
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For purposes of this Agreement, "disability" shall mean any physical or
mental impairment or disability which prevents the Executive from performing
his duties under this Agreement for a period of at least one hundred twenty
(120) days and which is expected to be of permanent duration. A determination
of whether the Executive is disabled shall be made by two licensed physicians,
one appointed by the Board of Directors and one appointed by the Executive. In
the event the two physicians are unable to agree with respect to whether the
Executive is disabled, the determination of whether the Executive is disabled
shall be made by a third duly licensed physician chosen by the two physicians
previously appointed.
In the event the Company discharges the Executive for Cause (as defined in
subsection (e) below), the Executive shall be entitled to receive only his Base
Salary through the date of his termination of employment and the Company will
have no further obligation to Executive under this Agreement or otherwise.
(d) In the event of the termination of this Agreement because of the
Executive's voluntary termination of employment for some reason other than
death or disability, the Executive shall be entitled to receive only his
Base Salary through the date of his termination of employment and the
Company will have no further obligations to Executive under this Agreement
or otherwise.
(e) "Cause" as used in this Agreement shall mean that either:
(i) in the judgment of the Board of Directors of the
Company, ascertained by majority vote, the Executive has
materially failed for some reason other than illness, injury, or
disability to perform his obligations hereunder; or
(ii) the Executive has: (a) committed either any felony
involving moral turpitude or any crime in the conduct of his
official duties which is materially
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adverse to the welfare of the Company; or (b) committed any
material act of fraud against the Company, its parent or
affiliates, or materially misused his position for his personal
gain or that of any third party; or (c) taken any action (other
than an error in judgment made in the ordinary course of his
duties) materially adverse to the welfare of the Company,
including, but not limited to, any violation of the Standards of
Conduct attached hereto or any breach of the covenants and
conditions contained in Sections 5 and 6 hereof.
5. Confidentiality and Disclosure of Information
(a) The Executive, during his tenure as an officer and employee of the
Company, has had and will have access to, and has gained and will gain knowledge
with respect to the Company's trade secrets, private and secret processes, as
they may exist from time to time, and confidential information concerning its
financial statements and operations conducted by the Company, its sales and
marketing activities and procedures, its bidding techniques, its design and
construction techniques, its customer list of owners of parking facilities or
credit and financial data concerning such customers or potential customers (in
the aggregate referred to hereinafter as "Secret and Confidential Information").
The Executive acknowledges that such information constitutes a valuable, special
and unique asset of the Company as to which the Company has the right to retain
and hereby does retain all of its proprietary interests. However, access to and
knowledge of such Secret and Confidential Information is essential to the
performance of the Executive's services for the Company. In recognition of this
fact, the Executive agrees that he will not, during or after his employment with
the Company, disclose any of such Secret and Confidential Information to any
person, firm, corporation, association or other entity for any
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reason or purposes whatsoever or make use of any such Secret and Confidential
Information for his own purposes or those of another. The provisions contained
in this subsection (a) shall also apply to information obtained by the
Executive in the course of his employment by the Company with respect to the
Company's subsidiary and affiliated companies.
(b) The Executive shall promptly disclose, grant and assign to the
Company for its sole use and benefit any and all inventions, improvements,
technical information and suggestions relating to the Business of the Company
(in the aggregate referred to as the "Creations") which the Executive has or
may conceive, develop or acquire during his employment (whether or not during
the usual working hours) together with all patent applications, letters patent,
copyrights and reissues thereof that may, at any time, be granted for or upon
any of the Creations. At all times during and after his employment, the
Executive shall promptly execute any and all documents requested to vest title
to any and all of the Creations in the Company and to enable it to obtain and
maintain the entire right and title thereto throughout the world and render to
the Company, at its expenses, any and all assistance required to protect its
legal rights thereto.
6. Restrictive Covenant.
(a) The Executive recognizes that the Company is relying on its
extensive experience, knowledge, ability and contacts in the Business of the
Company in entering into this Agreement. For this reason, the Executive
covenants and agrees that during the period of his employment by the Company,
and, if his Agreement terminates pursuant to either Section 4(b), or 4(c) with
Cause, or 4(d) hereof, for a period of one year immediately following the
termination of this Agreement he shall not have any direct or indirect
ownership or other financial interest in, or in any manner become interested in
(as principal,
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agent, consultant, advisor, officer, director, employee or otherwise), any
business which competes with the Business of the Company in the geographic
market in which the Company is then operating, or solicit business directly
or indirectly on behalf of such competing business. Nothing herein shall
preclude the Executive from being a member of or serving as an officer or
director of any trade association or from owning, of record or
beneficially, in the aggregate up to five percent (5%) of any issue of
securities of a publicly traded company.
(b) Notwithstanding anything to the contrary set forth in Section
13(b) hereof, any dispute between the parties with respect to the
interpretation or enforceability of Section 6(a) hereof (Restrictive
Covenant) as it applies to a termination for Cause under Section 4(c)
hereof or any dispute with respect to any amount payable under Section
4(c)(iv) hereof which cannot be settled amicably by the parties hereto
shall be settled by final and binding arbitration in Cleveland, Ohio in
accordance with the rules of arbitration of the American Arbitration
Association.
7. Remedies.
It is recognized by the Executive that a special and confidential
relationship exists between the Company and the Executive because of his
knowledge, expertise and judgment and the dependency of the Company on his
knowledge, expertise and judgment. The Executive agrees that the remedy at law
for any breach or unthreatened breach of the covenants set forth in Sections 5
and 6 will be inadequate and that any breach or attempted breach would cause
such immediate and permanent damage as would be irreparable and the exact
amount of which would be impossible to ascertain. The Executive further agrees
that in the event of any such breach or threatened breach by
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the Executive, in addition to any and all other legal and equitable remedies
available, the Company may have any of such actions enjoined by any court
authorized by law to such action.
8. Physical Examination.
The Executive shall undergo an annual physical examination. The cost
of such physical examination shall be borne by the Company. A written report of
the results of such physical shall be submitted to the President of the Company.
9. Assignment.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company. The performance of the Executive
hereunder is personal and nonassignable.
10. Invalidity.
(a) The territorial, time and other limitations contained in
Sections 5 and 6 are reasonable and properly required for the adequate
protection of the Business of the Company, and in the event that any one or
more of such territorial, time or other limitation is found to be unreasonable
or otherwise invalid in any jurisdiction, in whole or in part, the parties
acknowledge and agree that such limitation shall remain and be valid in all
other jurisdictions.
(b) If any provision, term, clause or part thereof in this Agreement
is invalid, it shall not affect the remainder of said provision, term or clause
of this Agreement, but said remainder shall be binding and effective against
both parties hereto.
11. Representations and Warranties of the Parties.
(a) The Company represents and warrants to the Executive that (i)
the Company is a corporation duly organized and validly existing and in good
standing under the laws of
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the State of Delaware; and (ii) the Company has the power and authority to
enter into and carry out this Agreement, and there exists no contractual
or other restriction upon its so doing.
(b) The Executive represents and warrants to the Company that there
exists no contractual or other restriction upon his entering into and
carrying out this Agreement.
12. Post-Mortem Payments; Designation of Beneficiary.
In the event that, following the termination of the Executive's
employment with the Company, the Executive is entitled to receive any payments
pursuant to this Agreement and the Executive dies, such payments shall be made
to the Executive's beneficiary designated hereunder. At any time after the
execution of this Agreement, the Executive may prepare, execute, and file with
the Secretary of the Company a copy of the Designation of Beneficiary form
attached to this Agreement as Exhibit D. The Executive shall thereafter be
free to amend, alter or change such form; provided, however, that any such
amendment, alteration or change shall be made by filing a new Designation of
Beneficiary form with the Secretary of the Company. In the event the Executive
fails to designate a beneficiary, following the death of the Executive all
payments of the amounts specified by this Agreement which would have been paid
to the Executive's designated beneficiary pursuant to this Agreement shall
instead be paid to the Executive's spouse, if any, if she survives the
Executive or, if there is no spouse or she does not survive the Executive, to
the Executive's estate.
13. Miscellaneous.
(a) This Agreement, including its attachments, contains the entire
agreement between the parties and incorporates and supersedes any and all
prior discussions or agreements the parties may have had with respect to
the terms of the Executive's
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employment with the Company. This Agreement may not be changed orally, but only
by a writing signed by each of the parties. The terms or covenants of this
Agreement may be waived only by a written instrument specifically referring to
this Agreement and executed by the party waiving compliance. The failure of a
party at any time, or from time to time, to require performance of any of the
other party's obligations under this Agreement shall in no manner affect the
waiving party's right to enforce any provisions of this Agreement at a
subsequent time, and the waiver by any party of any right arising out of any
breach by the other party shall not be construed as a waiver of any right
arising out of any subsequent breach.
(b) This Agreement has been executed in the State of Ohio and shall be
governed and interpreted in accordance with the laws of the State of Ohio
without regard to conflict of law provisions. Except as set forth in Section
6(b) hereof, any disputes between the parties which cannot be settled amicably
shall be subject to the jurisdiction of the courts of Ohio.
(c) Any notices required under this Agreement shall be in writing and
effective when received by the other party. Notices to the Executive shall be
addressed to him at his then current mailing address on file at the Company.
Notices to the Company shall be addressed to the Secretary of the Company at the
Company's headquarters.
(d) The use of the feminine, masculine or neuter pronoun herein shall not
be restrictive as to gender and shall be interpreted in all cases as the context
may require. The use of the singular or plural herein shall not be restrictive
as to number and shall be interpreted in all cases as the context may require.
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(e) The Company may withhold from any amounts payable to the Executive,
the Executive's beneficiary designated hereunder, or any other person, all
amounts necessary to satisfy the requirements of any state or federal statute
including, without limitation, the requirements of the United States Internal
Revenue Code.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement this 1 day of April, 1998.
ATTEST: APCOA, INC.
(the "Company")
/s/ Xxxxxxx X. Xxxxxx BY: /s/ X. X. Xxxxxxx
------------------------- ------------------------
XXXXXXX X. XXXXXX X. X. XXXXXXX
President
WITNESS:
/s/ Xxxxxxx X. XxXxxxx /s/ Xxxxx X. XxXxxxx
------------------------- ------------------------
XXXXXXX X. XxXXXXX XXXXX X. XxXXXXX
(the "Executive")
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EXHIBIT A
GUIDELINES
1. Standards of Conduct and Business Ethics. The Board of Directors of
Apcoa, Inc., a Delaware corporation (the "Company"), has adopted a corporate
policy for itself and all other corporations, entities, or persons that,
directly or indirectly, through one or more intermediaries, control, are
controlled by, or are under common control with the Company ("Affiliates")
regarding Standards of Conduct and Business Ethics, in order to provide
directors, officers and employees of the Company or its Affiliates with
guidelines to assist them in fulfilling their responsibilities to the public,
the stockholders and the Company.
This policy is equally applicable to all of the foreign operations of the
Company or its Affiliates except where modified by specific foreign laws and
regulations.
As no policy statement can cover the total range of daily activities, it
is recognized that questions of compliance will arise. Such questions should be
directed through normal communications procedures to the Company's General
Counsel at Company Headquarters.
Your attention is also specifically directed to the fact that disregard of
sections of this policy could result in your dismissal as an employee as well
as the imposition of civil and criminal penalties against the Company or its
Affiliates and you personally.
All personnel are requested to read this policy and conform to the
principles stated therein.
2. Policy. It is the policy of the Company that the directors, officers
and employees of the Company or its Affiliates shall conduct their activities
so as to avoid loss or embarrassment to the Company or its Affiliates. Either
by implication or in reality, the objective exercise of sound ethical business
judgment should not be in any manner limited by any relationship, any activity
or any practice.
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The Company recognizes and respects the individual's right to engage in
outside activities. However, the Company reserves the right to determine when
these activities create a conflict of interest. All conduct of the individual
must conform to the best interests of the Company and its Affiliates.
3. Reciprocity. Because of the nature and variety of the business engaged
in by the Company and its Affiliates, certain legal problems could arise with
respect to purchases made by the Company or its Affiliates if such purchases are
conditioned upon suppliers' purchasing products and/or services sold by the
Company or its Affiliates. Conversely, similar legal problems could arise if
customers were to condition their purchases from the Company or its Affiliates
upon a reciprocal purchase of products or services from them. This practice,
commonly referred to as "reciprocity," is prohibited by various federal and
state laws.
It is the policy of the Company that the Company and its Affiliates comply
with all applicable federal, state and local laws. The guidelines set forth
below have been designed to ensure full compliance with such laws. These
guidelines apply to all personnel having purchase or sales responsibilities.
The executives of the Company and its Affiliates should disseminate these
guidelines to appropriate employees and agents and require adherence thereto.
4. Purchase/Sales Guidelines. The following guidelines with respect to
purchases and sales made by the Company or its Affiliates apply to all
employees and agents of the Company or its Affiliates:
(a) No employee or agent of the Company or its Affiliates having
purchasing responsibilities or duties shall purchase any products or services
from, or enter into or adhere to any contract, agreement or the condition or
understanding that purchases made by
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him on behalf of the Company or its Affiliates will be based or conditioned
upon any sales to such supplier by the Company or its Affiliates.
(b) No employee or agent of the Company or its Affiliates having sales
responsibilities or duties shall on behalf of the Company or its Affiliates
sell products or services to, or enter into or adhere to any contract,
agreement or understanding with any actual or potential customer on the
condition or understanding that any purchase by the Company or its Affiliates
from such customer will be based or conditioned upon any sales of the Company
or its Affiliates to such customer.
(c) No employee or agent of the Company or its Affiliates shall issue to
personnel with primary purchasing responsibility any lists, notices, or other
data identifying customers and their purchases from the Company or its
Affiliates or specifying or recommending that purchases be made by the Company
or its Affiliates from any of such customers.
(d) No employee or agent of the Company or its Affiliates shall issue to
personnel with primary sales responsibilities any lists, notices or other data
pertaining to purchases made by the Company or its Affiliates from particular
suppliers.
(e) No employee or agent of the Company or its Affiliates shall prepare
or maintain statistical computations which compare purchases from suppliers who
supply products or services to the Company or its Affiliates.
(f) No employee or agent of the Company or its Affiliates shall:
(i) Communicate to any actual or potential seller or supplier of
the Company or its Affiliates that preference will be given to the purchase
of such
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seller's products or services based upon sales by the Company or its Affiliates
to such supplier.
(ii) Compare or exchange statistical data with any such seller
or supplier to facilitate any relationship of mutual purchases and sales
between such seller or supplier and the Company or its Affiliates.
(iii) Communicate to any such seller or supplier the fact that
the Company or its Affiliates have made any purchases from such seller or
supplier for the purpose of inducing a purchase by such seller or supplier.
(iv) Direct or recommend that the Company or its Affiliates
purchase products or services from any seller or supplier for the purpose
of reciprocating purchases made by, or promoting sales to, such seller or
supplier.
(v) Agree with any seller or supplier that such seller or
supplier will purchase products or services from the Company or its
Affiliates in order to reciprocate purchases made by the Company or its
Affiliates from such supplier.
5. Standards of Business Ethics. To determine if a specific interest
creates a conflict with the interests of the Company or its Affiliates, or if a
specific interest creates a conflict with interests of the Company or its
Affiliates, or if a specific practice violates an ethical standard is more
difficult without judging the immediate circumstances involved. Moral and legal
standards are relative measurements of proper behavior. Therefore, the Company
can only set forth specific examples that may limit an individual's ability
ethically and/or legally to perform his or her duties for the Company or its
Affiliates. Such examples include:
(a) Having any position or interest in any other business enterprise
operated for a profit which would or could reasonably be supposed to
conflict with the proper
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performance of the employee's duties or responsibilities, or which might tend
to restrict the employee's independence of judgment with respect to a
transaction between the Company or its Affiliates and such other business
enterprise.
(b) Seeking to, accepting, offering or providing either directly or
indirectly from or to any individual, partnership, association, corporation or
other business entity or representative thereof, doing or seeking to do
business with the Company or its Affiliates the following: loans (except with
bank or other financial institutions), services, payments, vacation or pleasure
trips, or any gifts to more than nominal value, or gifts of money in any amount.
(c) Benefiting personally from any purchase of any goods or services of
any nature by the Company or its Affiliates, or deriving personal gain from
actions taken or associations made in any capacity as an employee of the
Company or its Affiliates.
(d) Directly or indirectly acquiring as an investment, any stock of any
corporation engaged in the concession business or any business in competition
or doing business with the Company or its Affiliates, with the exception of
nominal stock-holdings in publicly held corporations.
(e) Disclosing to a third party any information or data regarding the
financial status, decisions or plans of the Company or its Affiliates which
might be prejudicial to the interests of the Company or its Affiliates, without
first obtaining proper authorization.
(f) Misusing one's position with the Company or its Affiliates or
knowledge of the affairs of the Company or its Affiliates for personal gain or
benefit.
(g) Acquiring securities or other property (such as real estate) which
the Company or its Affiliates have a present or potential interest in acquiring.
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(h) Carrying on of the business of the Company or its Affiliates with a
firm in which the employee or near relative of the employee has an appreciable
ownership interest, without disclosing the relationship and obtaining Company
approval.
(i) Engaging in practices or procedures which violate any laws, rules or
regulations applying to the conduct of the business of the Company or its
Affiliates or licenses held by the Company or its Affiliates, including
violation of any antitrust laws.
(j) Contributing funds or property of the Company or its Affiliates for
political contribution purposes, in violation of local, state or federal laws.
(k) Using or permitting others to use the services of the employees of the
Company or its Affiliates or materials or equipment of the Company or its
Affiliates for personal use or gain.
(l) Condoning or failing to report to appropriate Company authority the
activities of any other officer or employee of the Company or its Affiliates
which violate the principles set forth in this policy statement.
(m) Any other and all business practices which are construed or accepted by
the general business community as unethical or in violation of law.
6. Obligations of Directors, Officers and Employees. Employment by or
association with the Company or its Affiliates carries with it the
responsibility to be constantly aware of the importance of ethical conduct. The
individual must disqualify himself from taking part, or exerting influence, in
any transaction in which his own interests may conflict with the best interests
of the Company or its Affiliates.
Interests which might otherwise be questionable may be entirely proper if
accompanied by a full advance disclosure which affords an opportunity for prior
approval or disapproval. The
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obligation to make such disclosure rests upon the individual. All disclosures
should be directed through normal communication procedures to the Company's
General Counsel at Company Headquarters.
Upon disclosure, the Company recognizes that there may be many borderline
situations, and it does not intend to be unreasonable in considering these
cases, giving recognition to the attendant circumstances.
Should disclosure by an individual indicate the possibility of a conflict
of interest, the individual will be given a reasonable time to remedy the
situation.
From time to time questions may arise with respect to this Company policy
for which it is appropriate to consult with legal counsel. It is the
responsibility of each officer and employee to recognize these situations and
seek legal advice. Such advice may be obtained by contacting the Company's
General Counsel at Company Headquarters. It is never a mistake to consult with
counsel when in doubt with respect to the legality of a proposed course of
action.
7. Compliance with Antitrust Laws. It is the policy of the Company to
comply with all applicable federal and state antitrust laws, including trade
regulation laws, and it is expected that all of the officers and employees of
the Company or its Affiliates will likewise comply. The failure to comply with
applicable antitrust laws may subject the Company or its Affiliates and/or the
individuals involved to criminal and civil penalties, including substantial
fines and imprisonment, treble damage liability, injunctions or other court
orders adversely affecting the operation of the business of the Company or its
Affiliates, and the high cost of defending an antitrust case.
The Company's General Counsel at Company Headquarters coordinates the
handling of the legal affairs of the Company or its Affiliates. His staff is
always available for consultation with respect to compliance with the antitrust
laws. In addition, special legal counsel will be furnished, if
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required. No officer or employee of the Company or its Affiliates is authorized
to take any action which the Company's General Counsel has previously advised
would constitute a violation of the antitrust laws.
To the extent it is legally able to do so, the Company shall be prepared
to accept and/or defend any individual who has acted in good faith upon the
advice of the Company's General Counsel, but who nevertheless has become
involved in antitrust proceedings in the course of his employment by the
Company or its Affiliates. Any individual who has violated the antitrust laws
or is convicted of doing so shall be subject to appropriate disciplinary
action, including dismissal, if such individual acted without seeking the
advice of the Company's General Counsel or acted contrary to his advice.
(a) Rules to Follow. Many of the questions arising under the antitrust
laws must be resolved in the context of a particular fact situation.
However, there are a number of clearly established rules of conduct which
must be observed by all officers and employees of the Company or its
Affiliates in all circumstances in order to assure that the Company or its
Affiliates and the individuals involved are in full compliance with the
antitrust laws.
Set out below are a number of these rules and several other guidelines
with respect to the application of the antitrust laws to the activities of the
Company or its Affiliates:
(i) No officer or employee of the Company or its Affiliates shall
enter into, or attempt to enter into, any understanding, agreement,
plan or arrangement, whether formal or informal, written or oral,
express or implied, with any competitor in regard to prices,
discounts, terms or conditions of or refusing to
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deal with any actual or potential customers or suppliers of the
Company or its Affiliates.
(ii) No officer or employee of the Company or its Affiliates
shall give to or accept from a competitor, in written or oral form, or
discuss with a competitor, any information concerning prices, terms or
conditions of sale, or other competitive information except where: (a)
the information or discussion is relevant and necessary to a bona fide
existing or prospective customer or supplier relationship between the
Company or its Affiliates and such competitor or supplier, or (b) the
Company's General Counsel advised in writing that such conduct or
discussions would be proper because there would be no reasonable basis
for asserting a violation of the antitrust laws.
8. Implementation Procedure. It is difficult to define all situations
and circumstances with precision in a policy. If there are any questions at any
time on present or future interpretations of this policy or the propriety of
any conduct, employees of the Company or its Affiliates are requested to
consult with the Company's General Counsel at Company Headquarters to make sure
of the propriety of the action contemplated.
In matters of antitrust and other specialized areas, the Company retains
outside counsel who can be consulted as the need arises. The services of
outside counsel may be obtained by making your request to the Company's General
Counsel at Company Headquarters.
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EXHIBIT B
EXECUTIVE BONUS PLAN
XXXXX X. XxXXXXX
No later than April 15 following the end of each calendar year during the
term of this Executive Employment Agreement, the Executive shall be entitled to
receive a bonus of up to 40% of the Base Salary paid to the Executive during
such calendar year. Eligibility for bonus shall be based solely on the
following criteria and up to the following percentages of Base Salary for each
such criterion:
20% - Achievement of the Company's annual Financial Plan. This
portion of the bonus shall be prorated based upon the percentage of
achievement of the annual Financial Plan in the event the annual
Financial Plan is not achieved in full.
10% - Achievement of specific management goal set by the President
of the Company at the beginning of such year.
10% - At the sole discretion of the President of the Company.
---
40% Maximum Bonus
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EXHIBIT C
SUPPLEMENTAL PENSION PLAN
IN CONSIDERATION of the mutual promises contained herein, it is agreed by
the Executive and the Company as follows:
1. The Executive may retire from active employment at any time after
he reaches age 65.
2. Upon retirement, the Company shall provide the Executive with a
retirement benefit of 240 equal consecutive monthly payments of $4,166.67. The
first monthly payment shall be made on the first day of the month coinciding
with or next following the date of the Executive's retirement.
3. In the event the Executive dies after commencement of payments
under paragraph 2 hereof, but before he received the number of monthly
installments set forth therein, the Company shall pay the remainder of said
monthly installments to the Executive's designated beneficiary hereunder. For
purposes of this provision, the executive's designated beneficiary hereunder is
Xxxxx XxXxxxx. Executive shall have the right to change such beneficiary at
anytime hereafter, either prior to or after retirement, by notifying the
Company in writing of such change.
4. If the Executive shall die prior to age 65 while in the active
employment of the Company, the Company shall pay the Executive's designated
beneficiary an aggregate of Four Hundred Ninety One Thousand ($491,000.00)
Dollars in 60 equal monthly installments of Eight Thousand One Hundred Eighty
Three Dollars Thirty Three Cents ($8,183.33). The first installment shall be
paid on the first day of the month following the month in which the Executive
dies.
5. This Plan is part of a certain Executive Employment Agreement (the
"Employment Agreement") dated July 1, 1995. Nothing herein shall prevent the
Company from
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terminating the Employment Agreement for "cause," or the Executive from
resigning in accordance with the terms thereof, and in either event this Plan
shall be terminated and void in all respects and neither party shall have any
further responsibility for satisfying any obligations that may have otherwise
arisen hereunder. However, should the Executive's employment terminate prior to
retirement for any reason, other than for "cause," resignation, disability or
death, the Insurance Policy shall be transferred by the Company to the
Executive within thirty days after such termination, and the full value of the
Insurance Policy and its full cash surrender value shall become the sole
property of the Executive to do with as he sees fit.
In the event of the Executive's resignation which is not associated with
termination for "cause" or for disability, the Company shall cancel the
Insurance Policy and provide the Executive with the cash surrender value
according to the following schedule:
After five (5) full years' service = 25%
After ten (10) full years' service = 50%
After fifteen (15) full years' service = 75%
After twenty (20) full years' service = 100%
In the event of permanent disability the Company will continue to pay the
premiums on the full value of the Insurance Policy for twelve months following
the Executives' termination because of such disability in accordance with
Section 4(b) of the Employment Agreement and after twelve months to transfer
the full value of the Insurance Policy to the Executive within thirty days. The
full value of the Insurance Policy and its full cash surrender value shall
become the sole property of the Executive to do with as he sees fit, and the
Company shall have no further responsibility to fulfill any terms of the Plan
or to continue to pay premiums on the Insurance Policy after the transfer of
the Insurance Policy has been completed.
6. For so long as Executive is receiving payments hereunder, Executive
agrees that Sections 5, 6 and 7 of the Employment Agreement shall remain in
full force and effect
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7. Nothing in this Plan shall prevent Executive from receiving, in addition
to any amounts he may be entitled to under the Plan, any amounts which may be
distributable to him at any time under any pension plan, profit sharing or other
incentive compensation or similar plan of the Company now in effect or which may
hereafter be adopted.
8. This Plan shall be binding upon the Executive, his heirs, executors,
administrators and assigns, and on the Company, its successors and assigns. The
rights of Executive hereunder shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge.
9. This Plan may be altered, changed, amended or terminated only by a
writing signed by the party to be bound thereby.
10. This document has been executed in the State of Ohio and shall be
interpreted in accordance with the laws of that State without regard to conflict
of law provisions.
11. This document contains the entire agreement between the parties with
respect to the subject matter hereof, supersedes any and all prior discussions
or agreements the parties may have had with respect thereto (including any prior
Supplemental Pension Plan).
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EXHIBIT D TO EXECUTIVE TRANSITION EMPLOYMENT AGREEMENT
DESIGNATION OF BENEFICIARY
Effective April 1, 1998, I, the undersigned, entered into an Executive
Transition Employment Agreement with APCOA, INC. Pursuant to the terms of said
Agreement, I have the right to designate a beneficiary to receive, in the event
of my death, certain payments pursuant to said Agreement. I, therefore, exercise
this right and designate Xxxxx XxXxxxx to receive any such payments if (s)he
survives me, but if Xxxxx XxXxxxx does not survive me, I designate my Estate.
Any and all previous designations of beneficiary made by me are hereby revoked,
and I hereby reserve the right to revoke this designation of beneficiary.
/s/ Xxxxx X. XxXxxxx
_____________________
XXXXX X. XxXXXXX
Date: 4-1-1998
_________________
__________________________
Receipt of this Designation of Beneficiary form is acknowledged by the
undersigned Secretary of APCOA, INC.
APCOA, INC.
By: /s/
_____________________________
Secretary
Date: 4-1-1998
_________________
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