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Exhibit 10.9
AGREEMENT
THIS AGREEMENT, is made and entered into by and between APCOA, INC.
("Company") and Trevor R. Van Horn ("Employee") on the dates written below.
WITNESSETH:
WHEREAS, Employee has been employed by the Company, and such employment is
terminated effective February 26, 1998; and
WHEREAS, the Company and Employee wish to resolve all matters and issues
between them arising from or relating to Employee's employment by the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, Employee and the Company hereby agree as follows:
ARTICLE I
CONSIDERATION
Section 1.1. Severance. Upon the effective date of this Agreement as set
forth in Section 3.3 following the execution and delivery of this Agreement and
following the expiration of the consideration and revocation periods set forth
in Section 2.4 herein, the Company shall, in consideration of his release and
settlement of all claims, pay Employee, in accordance with the Company's regular
payroll practices, thirty (30) weeks of severance pay at Employee's rate
immediately preceding the termination, less applicable payroll taxes and
withholdings beginning February 26, 1998 and through September 23, 1998. In the
event Employee fails to execute this Agreement immediately following the
expiration of the consideration period set forth herein and/or revokes this
Agreement in accordance with its terms, no severance pay or any other monies
payable hereunder shall be due and owing.
Section 1.2. Vacation Pay. On April 30, 1998, the Company shall present a
check to Employee, for nine (9) weeks vacation pay at his regular rate of pay,
less applicable payroll taxes and withholdings.
Section 1.3. Notification. Employee acknowledges that on February 26, 1998,
he received a thirty (30) days notice from the Company and between that date and
March 31, 1998 he received his regular pay on regular paydays.
Section 1.4. Severance Retention Bonus. The Company shall pay Employee a
bonus equal to 35% of Employee's base pay, less applicable payroll taxes and
withholdings on April 30, 1998.
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ARTICLE 1 - CONSIDERATION (Continued)
Section 1.5. Pro Rata Bonus. The Company shall pay employee a pro rata
(January, February and March, 1998) bonus of $12,285 on or before April 15,
1999.
Section 1.6. Other Benefits. The Company shall provide and pay for COBRA
coverage to Employee through February 26, 1999.
Section 1.7. Company Car. The Company shall turn over title of the 1996
Buick to Employee on April 1, 1998, free and clear.
Section 1.8. 401(k) Plan. The Company shall continue the 401(k) Plan
through September 23, 1998.
Section 1.9. Relocation. The Company shall pay $10,000 (net) to Employee
toward relocation expenses with such payment due on April 30, 1998.
Section 1.10. Desk Top Computer. The Company shall provide Employee with
his current desk top computer on March 31, 1998, free and clear.
Section 1.11. Home. The Company shall pay up to $15,000 to Employee to
offset real estate commission and any loss on the sale of his home in Mentor,
Ohio.
ARTICLE II
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RELEASE OF CLAIMS
Section 2.1. Employee's Release. In consideration of the promises and
agreements set forth herein, Employee does hereby for himself and for his
heirs, executors, successors and assigns, release and forever discharge the
Company and all of the Company's related and affiliated entities and all of
their respective directors, officers, employees, agents and all other persons,
firms and corporations, both known and unknown, of and from any and all claims,
demands, damages, actions or causes of action, suits, claims, charges,
complaints, contracts, whether oral or written, express or implied and
promises, at law or in equity, of whatsoever kind or nature, including but not
limited to any alleged violation of any state or federal anti-discrimination
statutes or regulations, including but not limited to the Americans with
Disabilities Act of 1990, Age Discrimination in Employment Act of 1967, as
amended, the Older Workers Benefit Protection Act, breach of any express or
implied contract or promise, wrongful discharge, violation of public policy,
contract or tort, all demands for attorney's fees, back pay, holiday pay,
vacation pay, bonus, group insurance, any claims for reinstatement, all employee
benefits and claims for money, out-of-pocket expenses, any claims for emotional
distress, degradation, humiliation, failing to obtain employment at any other
company of employer, that Employee might now have or
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ARTICLE II - RELEASE OF CLAIMS (Continued)
may subsequently have, whether known or unknown, suspected or unsuspected, by
reason of any matter or thing, arising out of or in any way connected with,
directly or indirectly any acts or omissions of the Company or any of its
directors, officers, shareholders, employees and/or agents arising out of
Employee's employment and resignation from employment which have occurred prior
to and throughout the term of this Agreement, except those matters specifically
set forth herein and except for 401(k) benefits which have vested on his behalf.
Section 2.2. Company's Release. The Company, on behalf of itself, its
successors and assigns, does hereby release Employee from any and all claims,
demands, actions or causes of action, suits, claims, charges, complaints,
contracts, whether oral or written, express or implied and promises at law or
in equity of whatsoever kind or nature, which it may now have or subsequently
have, whether known or unknown, suspected or unsuspected, by reason of any
matter or thing arising out of or in any way connected with directly or
indirectly, any actions or omissions of Employee arising out of Employee's
employment by the Company, which have occurred prior to this Agreement, except
those matters specifically set forth herein.
Section 2.3. Covenant Not to Sue. Employee shall not directly or
indirectly institute or initiate any proceedings, charges, claims and/or actions
against the Company and/or its related or affiliated entities or their
respective directors, officers, employees, agents or representatives arising out
of or in any way connected with, directly or indirectly, any acts or omissions
of the Company and/or its respective directors, officers, employees, agents or
representatives which have occurred prior to and including the date hereof.
Section 2.4. Employee's Rights. Employee acknowledges that he has been
advised that he has the following specific rights:
(a) to consult with an attorney with regard to the meaning and effect of
this Agreement.
(b) to consider the meaning and effect of this Agreement and the Release
contained therein for a period of twenty one (21) days ("consideration
period") following the presentation of this Agreement to him; and
(c) to revoke this Agreement within seven (7) days ("revocation period")
of execution of this Agreement.
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ARTICLE II -- RELEASE OF CLAIMS (Continued)
Section 2.5. Notice of Revocation. To be effective, any revocation by
Employee must be delivered on or before the close of business on the seventh
day following execution of this Agreement to:
Mr. Michael J. Machi
Senior Vice President, Administration
APCOA, Inc.
1000 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2615
Section 2.6. Sufficiency of Consideration. Employee acknowledges that he
is receiving consideration for his release of claims under the terms and
conditions of this Agreement over and above what he is otherwise entitled to
and that such is sufficient and adequate consideration for his release for any
common law and/or statutory law claims he may have, if any.
Section 2.7. Presentation of Agreement. Employee acknowledges that this
Agreement was presented to him for his consideration on February 26, 1998, and
that he was SPECIFICALLY ADVISED THAT HE SHOULD NOT EXECUTE THIS AGREEMENT
UNTIL TWENTY-ONE (21) DAYS AFTER THE DATE SET FORTH IN THIS SECTION, AND
EMPLOYEE ACKNOWLEDGES THAT HE MAY NOT EXECUTE THIS AGREEMENT UNTIL MARCH 19,
1998.
Section 2.8. Confidentiality of Agreement. Employee and his heirs,
executors, successors, assigns, agents, representatives, and attorneys and the
Company shall hold the terms of this Agreement in strict confidence and shall
not communicate, reveal, or disclose the terms of this Agreement to any other
persons, except Employee's immediate family or as required by law. It is
understood and agreed by Employee and the Company that any disclosure other
than that authorized by this paragraph shall be deemed a material breach of
this Agreement will subject the party or entity in breach to appropriate
injunctive relief, compensatory and/or punitive damages, and possible civil
contempt, as determined by a court of law.
Section 2.9. Acknowledgements. Employee acknowledges that he has carefully
read and fully understands all of the provisions of this Agreement, that he has
not relied on any representations of the Company or any of its representatives,
directors, officers, employees and/or agents to induce him to enter this
Agreement, other than as specifically set forth herein and that he is fully
competent to enter into this Agreement and has not been pressured, coerced or
otherwise unduly influenced to enter into this Agreement and that he has
voluntarily entered into this Agreement of his own free will.
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ARTICLE III
ADDITIONAL PROVISIONS
Section 3.1. Entire Agreement. Except as provided above, this Agreement
contains the entire agreement between the parties hereto and replaces any prior
agreements, contracts and/or promises, whether written or oral, with respect to
the subject matters included herein. This Agreement may not be changed orally,
but only in writing, signed by each of the parties hereto. This Agreement and
any disputes arising hereunder shall be governed by the laws of the State of
Ohio.
Section 3.2. Effective Date. This Agreement shall only become effective
upon the delivery of this Agreement after execution by Employee following the
expiration of the twenty-one (21) day consideration period and, if not sooner
revoked in accordance with Sections 2.4 and 2.5, after the expiration of the
seven (7) day revocation period.
Section 3.3. Withdrawal If Not Timely Executed. If this Agreement is not
executed by Employee by 5:00 o'clock p.m. EST March 19, 1998, it is withdrawn
and of no further force and effect.
IN WITNESS WHEREOF, Trevor R. Van Horn, and APCOA, Inc. have executed this
Agreement effective as of the date of the Employee's execution of this Agreement
written below by their respective signatures, all duly authorized in the
premises.
CAUTION TO TREVOR R. VAN HORN: READ BEFORE SIGNING, THIS DOCUMENT CONTAINS
A RELEASE OF ALL YOUR RIGHTS TO AGE DISCRIMINATION CLAIMS AGAINST THE
ABOVE-MENTIONED COMPANY AND PERSONS ARISING BEFORE THE EFFECTIVE DATE OF THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL CLAIMS YOU MAY HAVE UNDER
THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, 29 U.S.C. 621 ET SEQ. AS
AMENDED.
I, TREVOR R. VAN HORN, acknowledge receiving this Agreement on February 26,
1998; I recognize and understand that I may not execute this Agreement until
twenty-one (21) calendar days have passed from the date I received this
Agreement. That is, the first day I may execute this Agreement is March 19,
1998.
Date of Van Horn's RECEIPT:
/s/ Trevor R. Van Horn 3-31-98
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Trevor R. Van Horn
WITNESS:
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Having considered this Agreement for at least twenty-one (21) calendar
days, I, TREVOR R. VAN HORN, hereby execute this Agreement; I agree and
recognize that I have seven (7) calendar days from my execution of this
Agreement to REVOKE this Agreement, should I so choose. I understand that if I
execute this Agreement on March 19, 1998, the last day I may revoke this
Agreement is March 26, 1998.
Date of Van Horn's SIGNATURE:
/s/ Trevor R. Van Horn 3-31-98
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Trevor R. Van Horn
WITNESS:
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DATE: 26 Feb 98
-------------------------- APCOA, Inc.
By: /s/ Michael J. Machi
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Michael J. Machi
Sr. Vice President, Administration
APCOA, Inc.
WITNESS:
/s/ Marian P. Fabec
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