Exhibit 10.7.5
FIFTH AMENDMENT TO
EMPLOYMENT
AGREEMENT
This Fifth Amendment to
Employment Agreement is made as of the 28 th day of January, 2009, by and between
Standard Parking Corporation , a Delaware corporation (the
“Company” ), and Robert N. Sacks (the
“Executive” ).
RECITALS
A.
Executive and APCOA, Inc., a
Delaware corporation (“ APCOA ”), previously
executed a certain Employment Agreement dated as of May 18,
1998 (the “Original Employment Agreement”
). The Original Employment Agreement was modified by that
certain First Amendment To Employment Agreement dated as of
November 7, 2001 by and between APCOA/Standard
Parking, Inc., a Delaware corporation formerly known as
APCOA, Inc. ( “A/SP” ) and Executive (the
“First Amendment” ), that certain Second
Amendment To Employment Agreement dated as of August 1, 2003
by and between A/SP and Executive (the “Second
Amendment” ), that certain Third Amendment To Employment
Agreement dated as of April 1, 2005 by and between the Company
and Executive (the “Third Amendment” ), and that
certain Fourth Amendment To Employment Agreement dated
December 29, 2008 by and between the Company and Executive
(the “ Fourth Amendment ”). The Original
Employment Agreement, as modified by the First Amendment, Second
Amendment, Third Amendment and Fourth Amendment, is hereafter
referred to as the “Agreement” . The
Company is the successor-in-interest to all of APCOA’s and
A/SP’s rights and obligations under the Agreement.
B.
The Company and Executive have
agreed to modify certain provisions of the Agreement as set forth
below.
NOW, THEREFORE,
in consideration of the Recitals,
the mutual promises and undertakings herein set forth, and the sum
of Ten Dollars ($10.00) in hand paid, the receipt and sufficiency
of which consideration are hereby acknowledged, the parties hereby
agree that the Agreement shall be deemed modified and amended,
effective immediately, as follows:
1.
Section 6 of the Agreement
shall be amended to read, in its entirety as so amended, as
follows:
“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. The 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, prospective clients and
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 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 consulting services; (viii) information
pertaining to computer systems, including but not limited to
computer software, used in the operation of the Parking Companies;
and (ix) other confidential information and trade secrets
relating to the operation of the Company’s business (the
matters described in this sentence hereafter referred to as the
“ Trade Secret and Confidential Information
”).
(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:
2
(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
(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 usi
