1
Exhibit 10.9
MANAGEMENT EMPLOYMENT AGREEMENT
AGREEMENT dated as of April 1, 1996 by and between APCOA, Inc., a
Delaware Company with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
("Company"), and ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇ ("Employee").
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 throughout the United States under agreement with municipalities, owners
of properties, and/or otherwise (the "Business of the Company").
WHEREAS, Employee is being offered employment by the Company in a
management capacity. During the course of his employment, the Employee will
become knowledgeable with respect to the Business of the Company, its trade
secrets, customers, market areas, sources of supply, and its manner of doing
business.
WHEREAS, the Company desires to employ Employee and Employee desires
to work for the Company 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 Employee to serve as Corporate Vice
President, Airport Properties (or under such title as the Company may hereafter
assign to him). The Employee hereby accepts employment upon the terms and
conditions hereinafter set forth. He shall report to the President and Chief
Executive Officer or any other officer of the Company assigned to him by such
officer. The Employee will have responsibility for the Airport Properties Group.
The Employee 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 Employee's
employment pursuant to this Agreement. The Employee agrees to comply in all
material respects with the "Standards of Conduct" as set forth in Exhibit A.
2. TERM
(a) The term of this Agreement shall be for a period of two years
(and thereafter until terminated by either party in the manner set forth in
Section 2(b) below) commencing as of the date set forth above, (unless Employee
dies, or becomes incapacitated and unable to perform the duties set forth in
Section 1 hereof and it is determined by the Company in its sole discretion that
termination is necessary for the good of the Company) or the Employee is
terminated for
2
cause pursuant to Section 7 hereof. In the event of death, incapacity or
termination pursuant to Section 7 hereof, all rights of the Employee to receive
compensation and benefits (except to the extent then accrued or vested) shall
end as of the date of such event.
(b) Unless terminated (for any reason described above) this
Agreement shall remain in effect for so long as Employee is an employee of the
Company. After the initial two (2) year period, either party shall have the
right to terminate this Agreement by giving the other party thirty (30) days
prior written notice of intent to do so. Notwithstanding any such termination,
Sections 5 and 6 of this Agreement shall remain in full force and effect.
3. COMPENSATION
For the services to be rendered by him pursuant to this Agreement,
the Company agrees to pay to Employee, so long as he shall be employed
hereunder, the following compensation:
(a) Salary at the rate of not less than $135,000 per year, Base
Salary ("Salary"), payable in 26 equal installments. The salary shall be
reviewed at least annually and any adjustments shall be at the sole discretion
of the President and Chief Executive Officer.
(b) Company agrees to pay the Employee a bonus as set forth and
outlined in Exhibit B hereto attached.
(c) Benefits as outlined in Exhibit C attached.
(d) Company automobile as well as reimbursement for gasoline and
maintenance. Insurance for that automobile will be provided by the Company.
(e) Employee is eligible for three (3) week vacation in 1996 and
four (4) weeks vacation beginning January 1, 1997.
4. AUTHORIZED EXPENSES
The Company will reimburse the Employee for reasonable business
expenses on the presentation by the Employee, from time to time, of an itemized
account of such expenses with documentary supporting materials. Such expenses
shall include reasonable and necessary expenses for entertainment, travel,
meals, and hotel accommodations.
5. CONFIDENTIALITY AND DISCLOSURE OF INFORMATION
The Employee, during his tenure as an employee of the Company, will
have access to, and will gain knowledge with respect to the Company's trade
secrets, private 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 hereinafter as "Secret and Confidential Information"). The Employee
acknowledges that such information constitute a
-2-
3
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 are
essential to the performance of the Employee's services for the Company. In
recognition of this fact, the Employee 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 of other entity for
any reason or purpose whatsoever, except as necessary in the performance of his
duties as an Employee of the Company or make use of any such Secret and
Confidential Information for his own purposes or those of another.
6. RESTRICTIVE COVENANT
(a) The Employee recognizes that the Company is relying on his
extensive experience, knowledge, ability and contacts in the Business engaged in
by the Company in entering into this Agreement. For this reason, Employee
covenants and agrees that during the period of his employment by the Company,
and for a period of one year immediately following such employment, (except in
the event the Company elects to terminate this Agreement or any extension
thereof pursuant to the Section 2(b) in which case Section 6(b) shall be in
effect) he shall not have any direct or indirect ownership or other financial
interest in and will not directly or indirectly engage in, or in any manner
become interested in (as principal, agent, consultant, advisor, officer,
director, employee or otherwise) any business which competes with the Business
of the Company in the geographic territory in which the Employee is then
operating nor will he solicit business directly or indirectly on behalf of such
competing business.
In addition, as part of the consideration required of him under this
Agreement, Employee shall not, while in the employment of the Company, and for a
period of two (2) years thereafter either:
(1) hire or otherwise induce any employee or employees of the
Company or any of its subsidiaries, to leave or terminate such employment, or
(2) employ, assist in employing or otherwise associate in business
with any such employee of the Company or any of its subsidiaries.
Further, as part of the consideration required of him under this
Agreement, Employee agrees that he will not at any time, either during his
employment with the Company or after cessation thereof divulge to any person,
firm or company any information received by him during the course of his
employment relating to or affecting the business of the Company, including, but
not specifically limited to, information relating to any contracts, statistics,
methods, costs or revenues, and all of such information shall be kept
confidential and not in any way be revealed to anyone without the express
written consent of the Company.
Employee understands that the breach or the threatened breach of any
of the covenants contained herein to which Employee has agreed will result in
irreparable injury to the Company and agrees that the Company may, in addition
to its remedies at law in any such event, seek and obtain a court injunction
restraining the breach of said covenants or any of them.
-3-
4
(b) In the event that the Company elects to terminate this
Agreement, or any extension thereof under Section 2(b) hereof, the Company shall
have the right to require Employee to abide by the covenant described herein for
a period of up to one year immediately following such termination date.
In such event, Employee covenants and agrees that for the
non-competitive period described above, he shall not have any direct or indirect
ownership or other financial interest in and will not directly or indirectly
engage in, or in any manner become interested in (as principal, agent,
consultant, advisor, officer, director, employee or otherwise) any business
which competes with the Business of the Company in the geographic territory in
which the Employee is then operating nor will he solicit business, directly or
indirectly on behalf of such competing business.
7. TERMINATION
The Company shall have the right to terminate this Agreement for
cause immediately and without any further liability to employee if, in the
judgment of the Executive Vice President and Chief Operating Officer:
(a) Employee has failed or materially neglected to perform his
obligations hereunder; or
(b) Employee has: (i) committed any crime involving moral turpitude
or any crime in the conduct of his official duties; (ii) 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 (iii)
committed any act materially adverse to the welfare of the Company.
In the event this Agreement is terminated, pursuant to this Section,
Sections 5 and 6 shall remain in full force and effect. However, the one year
term period described in Section 5(a) shall commence as of the date of
termination.
8. INVALIDITY
The territorial, time and other limitations contained in Sections 5
and 6 are reasonable and properly required for the adequate protection of the
Business and affairs of the Company, and in the event that any one or more of
such territorial, time or other limitation is found to be unreasonable by a
court of competent jurisdiction, the Company agrees to submit to the reduction
of the said territorial, time or other limitation under such sections 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.
If provision, term, clause or part thereof of 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.
-4-
5
9. MISCELLANEOUS
This Agreement embodies the whole agreement between the parties
hereto concerning the subject matter hereof. This Agreement may not be changed
except by a writing signed by the party against whom enforcement thereof is
sought.
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.
All notices given hereunder shall be mailed postage paid to the
address of the receiving party as first indicated above or to such other place
as such party may from time to time designate by written notice hereafter.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have executed this Agreement this 1 day of April, 1996.
ATTEST: APCOA, Inc.
------------------------ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Administration
WITNESS:
------------------------ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
-5-
6
EXHIBIT A
GUIDELINES
STANDARDS OF CONDUCT
1. Standards of Conduct and Business Ethics. The Board of Directors
of APCOA, Inc. has adopted a Corporate policy for itself and its subsidiary and
affiliated companies regarding Standards of Conduct and Business Ethics, in
order to provide Directors, Officers and employees with a guide of conduct in
fulfilling their responsibilities to the public, and the corporation.
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
General Counsel at Corporate Headquarters.
Your attention is also specifically called 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 and you personally.
All personnel are requested to read this policy and conform to the
principles stated herein.
2. Policy. It is the policy of the Company that its directors,
officers and employees shall regulate their activities so as to avoid loss or
embarrassment to the Company. 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.
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
3. Reciprocity. Because of the nature and variety of the business
engaged in by companies directly or indirectly controlled by APCOA, Inc.,
certain legal problems could arise with respect to purchases made by APCOA, Inc.
if such purchases are conditioned upon our suppliers' purchasing products and/or
services sold by APCOA, Inc. Conversely, similar legal problems could arise if
our customers were to condition our sales to them upon 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 APCOA, Inc. that APCOA, Inc. comply with all
applicable federal, state and local laws. The Guidelines set forth below have
been designated to ensure full compliance with such laws. These Guidelines apply
to all personnel having purchase or sales responsibilities. The Executives of
APCOA, Inc. should disseminate these Guidelines to appropriate employees and
agents and require adherence thereto.
-1-
7
4. Purchase/Sales Guidelines. The following guidelines with respect
to purchases and sales made by companies owned or controlled directly or
indirectly by APCOA, Inc. apply to all employees and agents of such companies.
(a) No employee or agent of APCOA, Inc. 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 him will be based or conditioned upon any sales to
such supplier by APCOA, Inc.
(b) No employee or agent of APCOA, Inc. having sales
responsibilities or duties shall sell products or services to,
or enter into or adhere to any contract agreement or
understanding that any purchase by APCOA, Inc. from such
customer will be based or conditioned upon any sales of APCOA,
Inc. to such customer.
(c) No employee or agent of APCOA, Inc. shall issue to personnel
with primary purchasing responsibility any lists, notices, or
other data identifying customers and their purchases made by
APCOA, Inc. from any of such customers.
(d) No employee or agent of APCOA, Inc. shall issue to personnel
with primary sales responsibilities any lists, notices or
other data pertaining to purchases made by APCOA, Inc. from
particular suppliers.
(e) No employee or agent of APCOA, Inc. shall prepare or maintain
statistical compilations which compare purchases from
suppliers who supply products or services to APCOA, Inc. to
such suppliers.
(f) No employee or agent of APCOA, Inc. shall:
1. Communicate to any actual or potential seller or
supplier of APCOA, Inc. that preference will be given to
the purchase of such seller's products or services based
upon sales by APCOA, Inc. to such supplier.
2. 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 APCOA, Inc.
3. Communicate to any such seller or supplier the fact that
APCOA, Inc. has made any purchases from such seller or
supplier for the purpose of inducing a purchase by such
seller or supplier.
4. Direct or recommend that APCOA, Inc. 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.
-2-
8
5. Agree with any seller or supplier that such seller or
supplier will purchase products or services from APCOA,
Inc. in order to reciprocate purchases made by APCOA,
Inc. from such supplier.
5. Standards of Business Ethics. To determine if a specific interest
creates a conflict with Company interests or if a specific practice violates an
ethical standard is most difficult without judging the immediate relative
circumstances involved. Moral and legal standards are relative measurements or
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. 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 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 and such other
business enterprise.
(b) Seeking to, accepting, offering or providing either directly
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
any of its affiliates the following: loans (except with banks
or other financial institutions), services, payments, vacation
or pleasures 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 mature 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.
(d) Directly or indirectly acquiring as an investment, any stock
of any company engaged in the parking business or any business
in competition or doing business with APCOA, Inc. and its
affiliates which might be prejudicial to the interest of the
Company, without first obtaining proper authorization.
(e) Revealing to a third party, any information or data regarding
the financial status, decisions or plans of the Company or any
of its affiliates which might be prejudicial to the interest
of the Company, without first obtaining proper authorization.
(f) Misusing one's position with the Company or knowledge of
Company affairs for outside gains.
(g) Acquiring securities or other property (such as real estate)
which the Company itself has a present or potential interest
in acquiring.
-3-
9
(h) Carrying on of Company business with a firm in which the
employee or near relative of the employee has an appreciable
ownership or interest, without divulging 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 Company's
businesses and licenses held by the Company, including
violation of any antitrust laws.
(j) Contributing corporate funds or property for political
contribution purposes, in violation of local, state or federal
laws.
(k) Using or permitting others to use the services of Company
materials or equipment 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 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. Obligation of Directors, Officers and Employees. Employment by,
or association with the Company 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 interest may conflict with the best interest of the Company.
Interests who 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 obligation to make such disclosure rests upon
the individual. All disclosures should be directed through normal communication
procedures to the General Counsel at Corporate 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 General Counsel
at Corporate Headquarters. It is never a mistake to consult with counsel when in
doubt with respect to the legality of a proposed course of action.
-4-
10
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 Company's officers and
employees will likewise comply. The failure to comply with applicable antitrust
laws may subject the Company and/or the individuals involved to criminal and
civil penalties, including substantial fines and imprisonment, travel damage
liability, injunctions or other court orders adversely affecting the operation
of the Company's business, and the high cost of defending an antitrust case.
The General Counsel at Corporate Headquarters coordinates the
handling of the Company's legal affairs. His staff is always available for
consultation with respect to compliance with the antitrust laws. In addition,
special legal counsel will be furnished, if required. No officer or employee is
authorized to take any action which the General Counsel has 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 assist and/or defend any individual who has acted good faith upon
the advice of the General Counsel, but who nevertheless has become involved in
antitrust proceedings in the course of his employment. Any individual who has
violated the antitrust laws or is convicted of so doing shall be subject to
appropriate disciplinary action, including dismissal, if such individual acted
without seeking the advice of the 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 in all circumstances, in order to
assure that the Company 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:
1. No officer or employee shall enter into, or attempt to
enter into, an 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 deal with any actual or potential customers or
suppliers.
2. No officer or employee 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 competitor information
except where: (a) the information or discussion is
relevant and necessary to a bona fide existing or
prospective customer supplier relationship between the
Company and such competitor, or (b) the General Counsel
advised in writ-
-5-
11
ing that the conduct or discussions would be proper
because there would be no reasonable basis for inferring
a violation of the antitrust laws.
8. Implementation Procedures. 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 are requested to consult with the General
Counsel at Corporate 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 General Counsel
at Corporate Headquarters.
-6-
12
EXHIBIT B
EXECUTIVE BONUS PLAN
▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇
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.
1. In 1996 the bonus will be a pro-rata share of up to 30% of the base
salary paid to the Executive during the calendar year.
2. In 1997 the bonus will be up to 35% of the base salary paid to the
Executive during such the calendar year.
Eligibility for bonus shall be based solely on the following
criteria and up to the following percentages of Base Salary of each
such criterion:
1996 1997
---- ----
15% 20% - Achievement of Airport Properties annual Financial Plan. This
portion of the bonus shall be based upon the percentage of
achievement of the annual Airport Properties Financial Plan in
the event the annual Financial Plan is not achieved in full.
5% 5% - Achievement of specific management goal set by the President
of the Company at the beginning of such year.
10% 10% - At the sole discretion of the President of the Company.
------------
30% 35% - Maximum Bonus
13
EXHIBIT C
BENEFIT PACKAGE
The following company paid benefits will begin the first day of the month
following 90 days of employment:
1. Life Insurance: Life Insurance and matching Accidental Death and
Dismemberment coverage in the amount of 1x annual salary rounded up to the next
highest thousandth.
2. Long Term Disability: Long Term Disability coverage trough UNUM Life
Insurance Company which provides 66% of pre-disability monthly income up to a
benefit of $5,000 per month.
3. 24-Hour Personal Accident: Additional Accidental Death and Dismemberment
coverage in the amount of $180,000 for employee and family, if applicable.
4. Health Insurance: Medical coverage through Aetna Health Plans for employee
and family, if applicable, included in Executive Medical Reimbursement Program.
5. Immediately eligible to participate in the 401(K) wraparound plan for Senior
Executives.
6. After one year of service, at the next January or July Open Enrollment,
enrollment into the 401 (K) Savings Plan will be available.
This Plan allows for the contributions, to be made, via payroll deduction, up to
15% of salary (pre-tax), of which the first 6% will be matched $.35 per $1.00 by
APCOA. These monies are invested among five different funds at Society Bank.