Exhibit 10.32


 


EXECUTIVE PARKING


MANAGEMENT AGREEMENT


 


               THIS EXECUTIVE PARKING MANAGEMENT
AGREEMENT (the ‘‘Agreement’’)
dated as of May 1, 1998 is hereby entered into by and among APCOA, Inc., a
Delaware corporation (the ‘‘Company’’), D&E
Parking, Inc., a California corporation (the ‘‘Manager’’),
Edward E. Simmons (‘‘Simmons’’) and
Dale G. Stark (‘‘Stark’’) (Simmons
and Stark shall be reffed to, collectively, as the ‘‘Employees’’ and,
individually, as an ‘‘Employee’’). (The corapany, the Manager, Stark and Simmons
shall be referred to, collectively, as ‘‘Parties’’
and, individually, as a ‘‘Party’’)


 


RECITALS


 


               A.       Pursuant to the terms of that certain Stock Purchase Agreement
dated May 13, 1998 (the ‘‘Purchase Agreement’’) by and among the Company,
S&S Parking, Inc., a California corporation (‘‘S&S’’) and Stark and
Simmons (as the shareholders of S&S), the Company purchased all of the
outstanding shares of S&S owned by Stark and Simmons, which purchase was
made effective as of May 1, 1908.


 


                B.        Executive Parking Industries, L.L.C. (‘‘Executive Parking’’), an affiliate of
S&S and the Company, has, pursuant to the terms of that certain Management
and Non-Competition Agreement as executed by and among Executive Parking,
S&S and Stark and Simmons, dated as of December 31, 1996 (the ‘‘Prior Management Agreement’’), and the
terms of that certain Assignment and Assumption of Management and
Non-Competition Agreement by and between S&S and the Manager, effective as
of December 31, 1996, previously engaged the Manager, Stark and Simmons to
perform various management responsibilities with respect to the Parking
Operations (as defined herein) of Executive Parking.


 


             C.        The
Employees have been owners and key employees of S&S and the Manager, with
expertise in the development and operation of parking facilities in California
and with knowledge of the operations of S&S and Executive Parking, which
now forms an integral part of the Company.


 


             D.       The
Company desires to assure the continued availability to the Company of the
management and services previously provided by the Employees in connection with
the business S&S and Executive Parking.


 


             E.        The
parties to this Agreement agree that a covenant not to solicit from each of the
Manager and the Employees is essential to the growth and stability of the
business of the Company and to the continuing viability of such business
whenever the management and services to which this Agreement relates are
terminated.


 


                F.        Pursuant
to the provisions of the Purchase Agreement, the Manager and Stark and Simmons,
individually and personally, are to provide management and services to the
Company,


 


 

















and the Manager, Stark and
Simmons desire to provide such management and services, on the terms and
conditions herein set forth.


 


                NOW THEREFORE, in consideration of the promises
hereto and the agreements’ and covenants hereinafter contained, the parties
hereto, intending to be legally bound hereby, mutually agree as follows:


 


ARTICLE


1.


Definitions


 


                For the purposes of this
Agreement, or for the purposes of any notice or communication required
hereunder, the following words and expressions shall have the following
meanings, respectively, unless the context otherwise requires.


 


                1.1.     ‘‘Affiliate’’ shall mean,
with respect to any particular Person, (a) any Person controlling, controlled
by or under common control with such Person, whether by ownership or control of
voting securities, by contract or otherwise, (b) any Person owning or
controlling 5% or more of the outstanding voting securities of such other
Person, (c) any partner, officer, director, employee or shareholder of such
Person or any parent, spouse, child, brother, sister or other relative with a
relationship (by blood, marriage or adoption) not more remote than first cousin
of any of the foregoing, or (d) any liquidating trust, trustee or other similar
person or entity for any Person.


 


                1.2.     ‘‘Disabled’’ shall mean
either a Temporary Disability or a Total Disability of an Employee.


 


                1.3.     ‘‘Fixed Fees’’ shall
mean an annual amount equal to the amount of the Incentive Fee payable to the
Manager for the calendar year in which this Agreement terminates pursuant to
Section 3. 1 (c) hereof


 


                1.4.     ‘‘LLC Agreement’’ means
that certain Limited Liability Company Agreement of Executive Parking dated as
of December 31, 1996.


 


                1.5.     ‘‘Letter of Intent’’ shall mean that
certain binding letter of intent, dated March I 0, 1998, among the Employees,
S&S and the Company.


 


               1.6.     ‘‘Net Fees’’ shall mean for any given year,
the amount of the Base Fee for that year pursuant to Section 4. 1 (a) hereof less
(i) the amount of $325,000 increased at the rate of 3% per year compounded
annually beginning in 1999, and (ii) the amount of any and all damages suffered
or incurred, or reasonably expected to be suffered or incurred, by the Company
(and not theretofore paid to the Company) that are proximately caused by (a)
the acts and/or omissions of the Manager or either Employee, and/or (b) the
loss to the Company of the Manager’s and the Employees’ services due to the
termination of this Agreement.


 


2

















 


                1.7.     ‘‘Operating Profits’’ shall mean (i)
revenues of the Parking Operations and outside Activities from (a) leased or
owned parking facilities, (b) management fees, and (c) all other income of the
Company collected from the Parking Operations and the Outside Activities, less
(ii) rent and other direct expenses incurred at the foregoing leased or owned
parking facilities, (iii) non-reimbursable expenses at management contract Parking
Operations and (iv) indirect expenses allocated to the Parking Operations and
the Outside Activities by the Company including, without limitation,
administrative costs, management fees payable to Manager or the Employees under
the Prior Management Agreement or this Agreement and with respect to 1997, the
management fee payable to the Company under the LLC Agreement, depreciation,
amortization and interest on borrowed funds directly related to Subsequent
Acquisitions or to funding of Parking Operations and the Outside Activities or
capital costs of specific Parking Operation or Outside Activity locations,
allocated as applicable, to (1) the forgoing leased, owned or managed
facilities and (2) other aspects of the Parking Operations and the Outside Activities.
Such allocations shall be made in a manner consistent with the Company’s past
practices for allocating indirect expenses to other parking operations.


 


                1.8.     ‘‘Outside Activities’’ shall mean all
Parking Services located or provided anywhere outside the Region obtained by
the Company through the direct efforts of the Employees, which are mutually
acknowledged by the Parties as being ‘‘Qualifying New Business Locations,’’
consistent with the Company’s regular business practices.


 


                1.9.     ‘‘Parking Operations’’ shall mean (i) all
Parking Services provided by Executive Parking as of the date of the closing of
the Purchase Agreement (the ‘‘Closing
Date’’), (ii) all Parking Services located or provided in the Region
obtained by the Company through acquisition (each a ‘‘Subsequent Acquisition’’) following the date of the Letter
of Intent and (iii) all Parking Services located or provided in the Region
obtained by the Company (whether or not as a result of the efforts of one or
both of the Employees) following the date of the Letter of Intent in the
ordinary course of its business.


 


                1.10.   ‘‘Parking Services’’ shall mean the
operation and management of parking facilities and/or the provision of parking
and shuttle services, provided, however, that in no event shall Parking
Services include any operation, management or services related to facilities
located at airports.


 


                1.11.   ‘‘Person’’
shall mean any individual, trust, corporation, partnership, limited
partnership, limited liability company or other business association or entity,
court, governmental body or governmental agency.


 


                1. 12.  ‘‘Prior Management Agreement’’ means that
certain Management and Noncompetition Agreement by and among Executive Parking,
S&S and the Employees dated as of December 31, 1996, and that certain
Assignment and Assumption of Management and Noncompetition Agreement between
S&S and D&E Parking, Inc. dated as of December 3 1, 1996.


 


                1. 13.
‘‘Region’’ shall mean the counties of Los Angeles, Ventura, Orange, San
Bernardino, Kern and Santa Barbara, all as located in the State of California.


 


3

















 


                1.14.   ‘‘Restricted Period’’ shall
mean, with respect to the Manager and each of the Employees, the period that
begins upon the effective date of this Agreement and ends two (2) years
following the termination of this Agreement for any reason or no reason, with
or without cause.


 


                1.15.   ‘‘Temporary Disability’! shall
mean an inability of an Employee by reason of any I emotional, mental or
physical infirmity or any combination of any thereof, ftom time to time during
any consecutive twelve (12) month period, to perform the Management Activities
(as hereinafter defined), in the aggregate, for 180 days or more. An Employee
with a Temporary Disability shall no longer be deemed to have a Temporary
Disability at such time, if any, as the doctor having oversight of such
Employee’s condition shall certify to the Company that such Employee may
reasonably be expected, at the time of such certification, again to be able to
perform the Management Activities without any substantial and material
impediment that cannot reasonably be accommodated by the Manager and/or the
Company; provided, however, that (i) such Employee shall again be deemed to
have a Temporary Disability if and at such time as such Employee may again be
unable, by reason of any emotional, mental or physical infirmity or any
combination of any thereof, from time to time during any consecutive twelve
(12) month period commencing after the cessation of the last period of
Temporary Disability to perform the Management Activities, in the aggregate,
for 180 days or more and (ii) such Employee shall be deemed to have a Total
Disability, rather than a Temporary Disability, if and at such time as the
definition of Total Disability shall be satisfied. That is, an Employee may not
be deemed to be have a Total Disability and a Temporary Disability at the same
time but, in such instance, shall be deemed only to have a Total Disability.


 


                1.16.   ‘‘Total Disability’’ shall
mean the inability of the Employee, by reason of any emotional, mental or
physical infirmity or any combination of any thereof, from time to time during
any consecutive 24 month period to perform the Management Activities, in the
aggregate, for 365 days or more. An Employee with a Total Disability thereafter
shall always be deemed to have a Total Disability unless otherwise agreed to by
the Company.


 


ARTICLE


2.


Performance of Management Services


 


                2.1.     Appointment. The Company
hereby appoints the Manager to operate and manage, and Manager, as an
independent contractor, agrees to operate and manage, upon and subject to the
terms and conditions of this Agreement, the Company’s Parking Operations on
substantially the terms and conditions as set forth herein.  


 


                2.2.     Management Activities. The
Manager shall, and the Manager shall cause the Employees to, perform general
management oversight and supervisory services for and on behalf of the Company
(collectively, the ‘‘Management Activities’’)
in connection with the Parking Operations and all related
administrative functions, including, without limitation, the following such
services:


 


4

















 


                           (a)        Sales
and marketing (including, without limitation, marketing and business
development, bidding, landlord/owner relations, etc.);


 


                           (b)        Operations
(including, without limitation, contract negotiation, contract preparation,
contract administration, purchases of supplies and inventory, etc.);


 


                           (c)        Accounting
(including, without limitation, preparation and administration of payables and
receivables, cash management, deposit reconciliation, etc.);


 


                           (d)        Human
resource functions (including, without limitation, unemployment matters, health
benefits, labor relations, hiring/termination, etc.); and


 


                           (e)        Risk
management (including, without limitation, insurance bidding, litigation,
etc.). 


 


Notwithstanding anything to
the contrary contained in this Agreement, every effort will be made to preserve
and foster existing customer relationships within the Region by those officers
of APCOA whom APCOA believes can best foster such relationships.


 


                2.3.     Duties and Covenants.


 


                           (a)        Simmons
shall have the duties, powers, responsibilities and authority customarily
associated with the position of the principal executive officer of the Parking
Operations and Stark shall have the duties, responsibilities, powers and
authority customarily associated with the position of an executive officer of
the Parking Operations, including but not limited to responsibility for the
administration, finance and the sharing of responsibility for and coordination
of the operations of the Parking Services. Each Employee acknowledges and
agrees that he is a full-time employee of Manager and agrees that it is a condition
of this Agreement that he devote his full time, skill, best efforts and
attention to the performance of the Management Activities to be provided by the
Manager pursuant to this Agreement; provided, however, that it is further
agreed by each Employee, the Manager and the Company that what will constitute
the provision of such ‘‘full time’’ services for these purposes is to be
determined consistent with the prior practices of the Employees as employees of
the Manager. Employees shall be entitled to receive vacations consistent with
past practices for 1997 under the Prior Management Agreement. In performing the
Management Services, each Employee shall not be required to travel outside the
Region more than fifteen (I 5) days per calendar year.


 


                           (b)        Covenant
Not to Solicit. Neither the Manager nor either Employee shall, on
behalf of itself or himself or anyone else other than the Company, during the
Restricted Period, directly or indirectly (a) contact or solicit business from
any client or customer of the Company or its Affiliates or from any person who
is responsible for referring or who regularly refers business to the Company or
its Affiliates or (b) offer or assist anyone else to offer any employment or
business association to, any person, firm, corporation, association or other
entity who is, or within two (2) years of such offer has been, an employee,
agent or representative of the Manager, the Company or its Affiliates. Further,
during such time, neither the Manager nor either Employee shall, on behalf of
itself, himself or anyone else, suggest or in any way


 


5

















 


encourage
any of the Manager’s, the Company’s or its Affiliates employees, agents or
representatives to terminate their employment or business association with the
Manager, the Company or its Affiliates. If one or both of the Employees or the
Manager are sued by the Company for violation of this provision, the Employees
and the Manager hereby agree that the Restricted Period shall be extended to two
(2) years after the date a final judgment is rendered against the Employee(s)
or the Manager by a trial court, or a court of appeals, whichever shall be
later


 


               2.4.     Replacement of Employees. The
Manager acknowledges and agrees that the Company requires at least two
individuals to provide the Management Activities. Therefore, Manager agrees
that, in the event either Employee dies or becomes Disabled, Company shall have
the right to hire its own employee to replace the deceased or Disabled Employee
(the ‘‘New Employee’’). Company
agrees that the Employee who is not deceased or Disabled (the ‘‘Surviving Employee’’), if any, shall have the
primary responsibility for the day-to-day management and direction of the
Parking Operations. The Manager agrees that it will cooperate, and will cause
the Surviving Employee to cooperate, with the New Employee to the fullest
extent possible in the provision of the Management Activities. The Company
agrees that it will cooperate, and will cause the New Employee to cooperate,
with the Surviving Employee to the fullest extent possible in the provision of
the Management Activities. The Company further agrees that it will cause the
New Employee to report to, and to take direction from, the Surviving Employee.
If an Employee ceases to have a Temporary Disability, then the Manager agrees
to cause such Employee to resume providing Management Activities promptly
following such cessation. In such event, the Company agrees to terminate the
New Employee upon, or as soon thereafter as shall be reasonably possible,
following such resumption.


 


ARTICLE


3.


Term and Termination


 


                3.1.     The
term of this Agreement shall commence as of the Closing Date and shall continue
through April 30, 2007. The foregoing notwithstanding, this Agreement shall earlier
terminate upon the first to occur of the following events:


 


                            (a)        the
date upon which both of the Employees are deceased and/or have a Total
Disability; or 


 


                            (b)        the date upon which the Company
terminates this Agreement for cause by delivery of written notice to the
Manager, and without further liability of the Company to the Manager, including
any liability for payment of any as yet unaccrued portion of the Base Fee or
Incentive Fee, as set forth in Article 4, which fee is to be prorated and paid through
the date of termination, in the event:


 


                                        (i)    The Manager has materially failed or
materially neglected to perform and/or breached a material obligation hereunder
and has failed to make such performance or to remedy such breach (1) within
thirty (30) days after


 


6

















 


receipt from the Company of
written notice of such breach or nonperformance or (2) if thirty (30) days
shall not be sufficient time to remedy such breach or nonperformance but if the
Manager shall have commenced such remedy during such initial 30 day period and
at all times thereafter shall diligently prosecute such remedy, then within
ninety (90) days after receipt from the Company of written notice of such
breach or nonperformance; or  


 


                                        (ii)   Either Employee materially breaches a
material individual covenant contained herein and fails to remedy such breach
(1) within thirty (30) days after receipt from the Company of written notice of
such breach or (2) if thirty (30) days shall not be sufficient time to remedy
such breach but if such Employee shall have commenced such remedy during such
initial 30 day period and at all times thereafter shall diligently prosecute
such remedy, then within ninety (90) days after receipt from the Company of
written notice of such breach; or


 


                                        (iii)  Either Employee (1) is convicted of, or enters
a plea of nolo contendere for, any crime involving moral turpitude in the
conduct of his official duties; (2) commits any material act of fraud against
the Manager or the Company, its parent or Affiliates, or materially misuses his
position for the personal gain of himself or any third party; or (3)
intentionally commits any other act materially contrary to the best interests
of the Company.


 


                           (c)        the
date upon which the Company terminates this Agreement for any reason, other
then a reason as set forth in Sections 3. 1 (a) or (b), provided that the
Company shall give the Manager thirty (30) days written notice prior to such
date of its intention to terminate this Agreement. If the Agreement is
terminated pursuant to this Section 3.1(c), the Manager shall be entitled to
(i) any unpaid portion of the Base Fee, the Incentive Fee and any and all other
amounts accrued or otherwise due hereunder, prorated through the effective date
of termination, and (ii) the continuation of the Base Fee and payment of the
Fixed Fee, payable monthly by the Company for the remainder of the stated term
of this Agreement without set off or reduction other than pursuant to the
Purchase Agreement or this Agreement.


 


3.2.        
No Waiver of Remedies. Termination of
the Agreement shall not constitute a waiver of the Company’s rights under this
Agreement and shall not release the Manager or either Employee from its or his
obligations hereunder.


 


3.3.
    No
Waiver of Vested Rights. The termination of this Agreement shall not
adversely effect any vested rights Manager or the Employees may have as of the
effective date of termination pursuant to any insurance, stock option or other
benefit plans, subject to the terms and conditions of such plans.


 


                3.4      Payments Following Termination. If the
Agreement is terminated pursuant to Sections 3.1(a) or (b), the Manager shall
be entitled to receive the Base Fee, the Incentive Fee and any and all other
amounts accrued or otherwise due hereunder, prorated through the effective date
of termination. In addition, if the Agreement is terminated pursuant to Section
3. 1 (a) or (b),


 


7

















 


the
Manager shall be entitled to receive the Net Fees, if any, payable monthly by
the Company for the remainder of the stated term of this Agreement.


 


ARTICLE


4.


Management Fees 


 


                4.1.     Base Fee.


 


                           (a)        As
consideration for the Manager engaging the Employees to perform the Management
Activities pursuant to this Agreement and as consideration for the Manager’s,
Stark’s and Simmons’ agreement not to solicit, the Company agrees to pay the
Manager an annual amount (the ‘‘Base Fee’’), which
shall be computed according to the following chart and shall be subject to
reduction in the event of the death or Disability of either of the Employees,
as provided in Section 4. 1 (b) hereof.


 


 




	
   

  	
   

  	
  Annual Base Fee

  	
   

  
	
   

  	
   

  	
  (before reduction, if any,

  	
   

  
	
  Year

  	
   

  	
  pursuant to Section I 1 (b))

  	
   

  
	
  1

  	
   

  	
  $

  	
  500,000

  	
   

  
	
  2

  	
   

  	
  570,000

  	
   

  
	
  3

  	
   

  	
  580,000

  	
   

  
	
  4

  	
   

  	
  601,000

  	
   

  
	
  5

  	
   

  	
  622,000

  	
   

  
	
  6

  	
   

  	
  643,000

  	
   

  
	
  7

  	
   

  	
  665,000

  	
   

  
	
  8

  	
   

  	
  687,000

  	
   

  
	
  9

  	
   

  	
  719,000

  	
   

  
					






 


                The annual Base Fee shall be payable in substantially
equal monthly installments, on the last business day of each month during which
this Agreement remains in effect or as otherwise provided in Section 3.1(c).
The foregoing notwithstanding, the monthly Base Fees due hereunder shall be
prorated based on the actual number of days during which this Agreement is in
effect during the first and last months of the term of this Agreement.  


 


                The Manager shall pay all salaries and benefits of
the Employees and other employees of Manager, including without limitation
payroll taxes, health and life insurance, entertainment not constituting
ordinary and necessary business expenses incurred for the benefit of the
Company, club dues, automobiles of Employees and costs of repairs, gas and oil
related thereto, and other costs not directly attributable to the Parking
Operations. To the extent they are eligible to participate, the Employees shall
be afforded the right to participate, at the Manager’s cost, in any group
health and/or life insurance benefit plans the Company provides its Senior Vice
Presidents. The Company shall bear the cost of ordinary and necessary business
expenses incurred by the


 


8

















 


Manager in connection with
and for the benefit of the Company in accordance with its business expense
reimbursement policy in effect from time to time from its Senior Vice
Presidents.


 


                            (b)       The
Manager acknowledges and agrees that payment of the Base Fee pursuant to
Section 4. I (a) is dependent upon the continued performance of the Management
Activities by both of the Employees. Therefore, the Manager agrees that the
Base Fee may be reduced as set forth in this Section 4.1(b). If, during the
term of this Agreement, either Employee dies or becomes Disabled, the Base Fee
otherwise required by Section 4. 1 (a) shall be reduced by an annual amount
equal to $162,500 or, if death or Disability occurs after calendar year 1998,
by an annual amount equal to $162,500 increased at the rate of 3% per year
compounded annually beginning in 1999 and through the year in which death or
Disability occurs. Such reduction shall be effective on the date of such death
or Disability, and the amount of such reduction shall be prorated as of such
date for such year. If an Employee ceases to have a Temporary Disability, then
such reduction shall cease on the date such Employee resumes providing
Management Activities, and the amount of such reduction shall be prorated as of
such date for such year.


 


                4.2.      Incentive Fee. In addition to the Base Fee
set forth in Section 4.1 hereof, the Manager shall be entitled to an annual ‘‘Incentive Fee’’ for as long as at least
one of the Employees continues to perform services under this Agreement. The
Incentive Fee shall be equal to the Applicable Percentage (as hereinafter
defined) of the annual Operating Profits generated by all the Parking
Operations and the Outside Activities in excess of a Base Amount (as
hereinafter defined). In the event either one of the Employees ceases to
perform services hereunder, the Incentive Fee payable pursuant to this Section
4.2 shall be reduced by fifty percent (50%). The ‘‘Applicable Percentage’’ with respect to the Incentive Fee
for the first five (5) years of the term of this Agreement shall be twelve
percent (12%); for all years thereafter during which this Agreement remains in
effect the Applicable Percentage shall be seven percent (7%). The foregoing
notwithstanding, if both of the Employees have delivered notice (the
‘‘Notice’’) to the Company not less than ninety (90) days before the fifth
anniversary of the effective date of this Agreement, terininating any and all
rights they may have to be granted any additional stock options with respect to
stock of the Company, the Applicable Percentage shall remain at twelve percent
(12%) for the term of this Agreement; provided, however, that any unexercised
stock options granted to the Employees prior to the date of such Notice shall
continue to be exercisable under the terms, including vesting provisions, as in
effect prior to the date of Notice.


 


                For purposes of calculating the Incentive Fee, the ‘‘Base Amount’’ shall initially be equal to
the Operating Profits of Executive Parking for calendar year 1997, increased by
(i) fees in excess of $500,000 paid by Executive Parking during calendar year
1997 under the Prior Management Agreement and (ii) the amount of any management
fees paid by Executive Parking to the Company for calendar year 1997. The Base
Amount shall be adjusted thereafter as necessary to reflect the impact of
Subsequent Acquisitions. The Adjustments (as defined below) resulting from any
given Subsequent Acquisition shall be determined by the Company within sixty
(60) days after the end of the first full calendar year following the calendar
year in which that Subsequent Acquisition closes. Such Base Amount, including
Adjustments, shall thereafter be used to calculate the Incentive Fee until ftirther
Adjustments are made to the Base Amount


 


9

















 


resulting
from additional Subsequent Acquisitions. The ‘‘Adjustments’’
shall include, but not be limited to:


 


                                (a)           Increases to the Base Amount for the
following items:


 


                                                (1)           the Operating Profits of the Parking
Services of the Subsequent Acquisition
                                                for
the fiscal year immediately preceding the year in which the Subsequent
                                                Acquisition
closes; 


 


                                                (2)           the annual reduction in expenses of
the Subsequent Acquisition resulting
                                                from
the elimination of duplicative operations through the Company’s operation of
the
                                                acquired
Parking Services;


 


                                                (3)           the annual reduction in salary
expense attributable to the elimination of
                                                positions
attributable to the Subsequent Acquisition;


 


                                                (4)           any extraordinary, non-recurring
items of expense or expenses which are not
                                                ordinary
and necessary with respect to the Parking Services of the Subsequent
                                                Acquisition
for the fiscal year immediately preceding the year in which the
                                                Subsequent
Acquisition closes; and


 


                                                (5)           such other items as determined by the
Company in its sole and good faith
                                                discretion,
which result in a reduction in annual expenses and which are attributable to
                                                operation
of the Parking Services on a basis consistent with the Company’s
                                                established
practices.


 


                                (b)           Decreases to the Base Amount in an
amount, to be determined in good faith by the Company, and the Employees, which
accounts for the negative impact, if any, of a Subsequent Acquisition on the
financial performance of the Parking Operations in the Region.


 


                The Incentive Fee shall be
payable in one single sum within seventy five (75) days after the end of each
calendar year during the term of this Agreement. For any calendar year in which
one or more Subsequent Acquisitions close (an ‘‘Acquisition
Year’’), the Incentive Fee shall initially be determined and paid as
if the Subsequent Acquisition(s) had not occurred. Thereafter, once the
Adjustments for such Subsequent Acquisition(s) are determined (in the manner
and within the time set forth above), the Company shall recalculate the
Incentive Fee separately for each portion of such Acquisition Year occurring
before and after the closing of the Subsequent Acquisition(s) based upon a
proration of Operating Profits and the Base Amount for each portion of such
Acquisition Year. In calculating the Incentive Fee for that portion of such
Acquisition Year following the closing of a Subsequent Acquisition, (i)
Operating Profits shall include the actual Operating Profits derived from the
Subsequent Acquisition during such period, and (ii) the Base Amount shall
include a proration of the Adjustments resulting from the Subsequent
Acquisition. The Incentive Fee so determined, less any amounts previously paid
in regard thereto, shall be paid immediately to the Manager, or the Manager
shall refund immediately to the Company any overpayment. The Incentive Fee
shall be prorated for any


 


10

















 


given
calendar year during the term of this Agreement which is less than twelve (12)
full calendar months. 


 


                The foregoing may be illustrated
by the following example: assume that a Subsequent Acquisition occurs on
September 1, 1999, and that Operating Profits and the Base Amount (excluding
the Subsequent Acquisition) for 1999 are $1,000,000 and $750,000, respectively.
Prior to March 1, 2000, the Company would pay Manager an Incentive Fee for 1999
equal to $30,000 ($1,000,000 - $750,000 X 12% = $30,000).


 


                Assume ftu-ther that before
March 1, 2001, it is determined that the Operating Profits derived from the
Subsequent Acquisition for the period from September 1, 1999 through December
31, 1999 were $100,000 and the Adjustments to the Base Amount total $300,000
(i.e. the new Base Amount would become $1,050,000). The Incentive Fee for 1999
would be recalculated as follows:


 


                           1.  Determine Incentive Fee for portion of 1999
occurring prior to Subsequent Acquisition (i.e. l/l/99 through 8/31/99 = 8/12
or 3/4):


 


                                (a)   Operating Profits equals $750,000 ($1,000,000
X 3/4 =  $750,000);


 


                                (b)   Base Amount equals $562,500 ($750,000 X 3/4 =
$562,500);


 


                                (c)   Incentive Fee equals $22,500 ($750,000 -
$562,500 X 12% = $22,500);


 


                                        PLUS


 


                 2.  Determine Incentive Fee for portion of 1999 occurring from
Subsequent Acquisition (i.e. 9/l/99 through 12/31/99 = 3/12 or 1/4):


 


                                (a)   Operating Profits equals $350,000 ($1,000,000
X 1/4 + $100,000 =  $350,000);


 


                                (b)   Base Amount following Adjustments equals
$262,500 ($750,000 X 1/4 =  $187,500), plus $300,000 X
1/4 = $75,000 ($187,500 + $75,000 =  $262,500);


 


                                (c)   Incentive Fee equals $10,500 ($350,000 -
$262,500 X 12% = $10,500);


 


                                3.     Recalculated Incentive Fee for 1999 equals
$33,000 (total from 1(c) and 2(c) above).


 


                                4.     Net amount due Manager for 1999 equals $3,000.


 


                4.3.     Stock Option or Other Similar,
Benefit Plan. The Manager (or at the Company’s election, the
Employees), shall be granted options to purchase stock of the Company under the
Company’s stock option plan or stock appreciation rights plan, or other similar
benefits afforded under a Company sponsored plan if and when adopted by the
Company. The options or


 


11

















 


other
similar benefits, if any, shall be granted in amounts and on terms consistent
with option grants or other similar benefits granted to the Company’s Senior
Vice Presidents generally, provided, however, that if only officers at a level
higher than Senior Vice Presidents are granted such stock options or similar benefits,
the Mangers (or the Employees) shall be granted options or similar benefits in
a quantity equal to the next higher level of officers above Senior Vice
Presidents that are granted such benefits. To the extent that the terms such
stock option or similar plan is not available to consultants of the Company,
then the Company will convert the economic benefits of this Agreement to
employment terms which qualify the Employees for such plan and which are
substantially equivalent to the economic benefits afforded under this
Agreement.


 


ARTICLE


5.


Confidentiality and Disclosure of Information


 


                5.1      Protection of Corporate Assets. Each Employee acknowledges
and agrees that the Company has acquired from S&S all services, materials,
products and techniques developed by S&S through the efforts of the
Employees. Each Employee further acknowledges that it will substantially
benefit, financially and otherwise, from the consummation of the Purchase
Agreement and the transactions contemplated thereby and that the Company would
not enter into and consummate this Agreement or the Purchase Agreement if the
Employees would not agree to be bound by the conditions set forth in this
Section 5. The Manager and each Employee acknowledge and agree that the Company
desires to keep secret all information divulged to employees of the Manager
about the Company’s business so as not to aid competitors of the Company if and
to the extent such information (a) has not already been made public, other than
as a result of a breach by the Manager or the Employees of this Agreement, (b)
is not readily ascertainable by a third party through legal means and efforts
and (c) may reasonably be considered material to the operations of the Company.
The Manager and each Employee ftirther acknowledge that the business of owning,
managing and/or operating parking lots, parking garages and/or parking
concessions is a highly competitive and unique business and that there are
relatively few firms engaged in these businesses in the Region. The Manager and
each Employee recognize and acknowledge that as a result of the Manager’s
engagement by the Company and the Manager’s and the Employees’ prior
relationships with S&S, the Manager and each of the Employees has had and
will continue to have access to confidential information and trade secrets of
the Company that constitute proprietary information that the Company is
entitled to protect, which information constitutes special and unique assets of
the Company, including without limitation (i) information relating to the
Company’s manner and methods of doing business; (ii) the identity of the
Company’s clients, customers, lessors and locations; (iii) the specific
confidential terms of management agreements, leases and other business
agreements, including without limitation the duration thereof and the fees,
rent and other payments due thereunder; (iv) the identities of beneficiaries
under land trusts; (v) the business, developments, activities or systems of the
Company, 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


 


12

















 


with
the Company; (vii) financial data pertaining to any parking facility owned,
operated, leased or managed by the Company or for which the Company has
provided or is providing consulting services; and (viii) 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 Secrets’’). With respect to the
Trade Secrets, and except as may be required by the lawful order of a court of
competent jurisdiction, the Manager and each Employee shall:


 


                           (a)        hold all Trade Secrets 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;


 


                           (b)        use all reasonable precautions to assure
that the Trade Secrets are properly protected and kept from unauthorized p
ersons;


 


                           (c)        make no use of any Trade Secrets except
as is required in the performance of the Manager’s duties for the Company; and


 


                           (d)        upon termination of the Manager’s
engagement by the Company or upon termination of the services of either
Employee by the Manager, whether voluntary or involuntary and regardless of the
reason or cause therefor, or upon the request of the Company, promptly return
to the Company any and all documents, and other things relating to the Trade
Secrets, 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, but shall not be limited
to, all accounts, budgets, compilations, computer records and disks,
contracts, correspondence, data, diagrams, drawings, financial statements,
memoranda, notes, notebooks, marketing or other plans, printed materials,
records and reports, as well as any and all copies, reproductions or summaries
thereof


 


                5.2.     Assignment of Property Rights.
The Manager and each of the Employees agree to assign to the Company
any and all intellectual property rights, including without limitation patents,
trademarks, copyright and business plans or systems developed, authorized or
conceived by the Employees or any other employees of the Manager while so
engaged and relating to the business of the Company, and Manager and each of
the Employees agree to cooperate with the Company’s attorneys to perfect
ownership rights thereof in the Company. This Agreement does not apply to an
invention for which no equipment, supplies, facility or trade secret
information of the Company was used and which was developed entirely on the
Managers or Employees’ own time, unless (i) the invention relates either to the
business of the Company or to actual or demonstrably anticipated research or
development of the Company, or (ii) the invention results from any work
performed by the Employees or the Manager for the Company.


 


                5.3.     Injunctive Relief. In
the event of any breach of the covenants set forth in this Section 5 or in
Section 2.3(b), the Parties agree that monetary damages will be difficult to
determine and for that reason, they agree that the Company will be irreparably
damaged in the event that this Section 5.3 is not specifically enforced. Should
any dispute arise concerning any alleged breach by the Manager or either
Employee of this Section 5 or Section 2.3(b), the Company or its successors or
assigns may, in addition to all other rights and remedies existing in


 


13

















 


its
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof. Such remedy shall, however, be cumulative and not
exclusive, and shall be in addition to any other remedy which the Company may
have, including the recovery of damages.


 


            The Manager and each of the
Employees agree that the restrictions in this Section 5.3 are reasonable
protections under the circumstances of the transactions as contemplated in the
Purchase Agreement and in this Agreement. In the event that the agreements
found in this Section 5.3 are found to exceed any applicable limitations as to
their enforceability, the Parties intend that the scope of such agreements
shall be reduced to the extent necessary to eliminate any such excess and that
such agreements, as so reduced in scope, will be fully enforceable.


 


ARTICLE


6.


Alternative Dispute Resolution And Binding Arbitration


 


            Subject to the provisions of Section
5.3, the following provisions shall be applicable upon the execution of this
Agreement:


 


            6.1.     Executive Review. Any Party shall have the
right, at any time after good faith efforts have failed to resolve a dispute
over a material matter arising under this Agreement to request a formal review
of such matter by the Parties (‘‘Executive Review’’). Any Party may exercise
its right to request Executive Review by providing a written notice to the
other Parties. The Employees and senior executive officers of the Company and
the Manager shall meet within thirty (30) days of the date such notice is delivered
to the other Parties, and shall engage in good faith efforts to resolve the
dispute. Within thirty (30) days of such meeting, such senior executive
officers of the Company and the Manager, and the Employees, shall deliver
written notices to the other Parties stating whether they have been able to
resolve the dispute, and the nature of their decision if they have resolved the
dispute. Any such decision shall be binding on the Parties.


 


            6.2.     Mediation. If a claim, dispute or
disagreement arising out of, or relating to this Agreement or the performance
thereof (collectively ‘‘Dispute’’) exists
between the Parties and such Dispute cannot be settled by Executive Review, any
Party may elect to submit the Dispute to mediation before a neutral retired
judge of the Superior Court of Los Angeles County (the ‘‘Mediator’’). if any Party so elects, the
other Parties shall submit to mediation before a Mediator selected by mutual
agreement of the Parties or, if no agreement on the selection of a Mediator has
been reached within thirty (30) days, before a Mediator selected by Judicial
Arbitration & Mediation Services, Inc. (‘‘JAAIS’’)
located at 3340 Ocean Park Blvd., Suite 1050, Santa Monica, CA 90405
(or any successor organization). The mediation,shall be conducted as follows:


 


                       (a)        Notwithstanding any legal decision to
the contrary, including, without limitation, Bowles Financial Group v.
Stifel Nicolaus & Co. 22 F.3d 1010 (10th Cir. 1994), the Parties hereby
agree, pursuant to,-without limitation, California Evidence Code
Sections 1152 and 1152.5, that any communications, written or oral, including,
but not limited to, statements


 


14

















 


made
and evidence introduced, during the course of any mediation conducted pursuant
to these provisions of the Agreement shall be conclusively deemed to constitute
privileged and confidential settlement discussions made in the course of
mediation and shall not be admissible in any subsequent proceeding pursuant to
the provisions of this Agreement;


 


                           (b)        The Mediator shall not have authority to
impose a settlement upon the Parties, but will assist in attempting to reach a
satisfactory resolution of the Dispute. The Mediator shall end the mediation
whenever, in his judgment, ftu-ther efforts at mediation would not contribute
to a resolution of the Dispute;


 


                           (c)        Any agreement reached in mediation shall
be binding upon the Parties;


 


                           (d)        Each Party shall bear all of its or his
own legal fees, costs and expenses of mediation and one-half of the costs of
the Mediator.


 


                6.3.     Binding Arbitration. If
good faith negotiations among any Parties do not resolve such Dispute in
accordance with Sections 6.1 and 6.2, such unresolved Dispute, including, but
not limited to, questions as to whether a matter is governed by this
arbitration clause, shall be subject to arbitration. Such arbitration shall be
conducted by a neutral retired judge of the Superior Court of Los Angeles
County (the ‘‘Arbitrator’’) in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then pertaining (the ‘‘Rules’’),
insofar as such Rules are not inconsistent with the provisions
expressly set forth in this Agreement, unless the Parties involved in the
unresolved Dispute (the ‘‘Arbitration
Parties’’) mutually agree otherwise, and pursuant to the following
procedures:


 


                           (a)        Within fifteen (15) days after the
commencement of arbitration, the Arbitrator shall be selected by the mutual
agreement of the Arbitration Parties. If the Arbitration Parties are unable or
fail to agree upon the Arbitrator, then the Arbitrator shall be appointed in
the manner provided in California Code of Civil Procedure Section
1281.6. Prior to the commencement of hearings, the Arbitrator appointed shall
take an oath of impartiality;


 


                           (b)        All proceedings before the Arbitrator
appointed shall be held in Los Angeles, California. The governing law shall be
as specified in Section 7.1 of the Agreement;


 


                           (c)        The Arbitration Parties shall allow and
participate in reasonable discovery in accordance with the Federal Rules of
Civil Procedure for a period of thirty (30) days after filing the answers or
other responsive pleadings. Such discovery shall be coordinated by the
Arbitrator in a pre-hearing conference. Unresolved discovery disputes may be
brought to the attention of and resolved by the Arbitrator;


 


                           (d)        Each Party shall bear all of its or his
own legal fees, costs and expenses of arbitration and one-half of the costs of
the Arbitrator;


 


                           (e)        The award rendered by the Arbitrator shall
be final, and judgment may be entered in accordance with applicable law and in
any court having jurisdiction thereof,


 


15

















 


                           (f)         The
existence and resolution of the arbitration shall be kept confidential by the
Company, the Manager and the Employees and shall also be kept confidential by
the Arbitrator;


 


                           (g)        The
Arbitrator shall have no authority to award punitive damages or any other
damages not measured by the prevailing Party’s actual damages, and may not make
any ruling, finding or award that does not conform to terms and conditions of
the Agreement.


 


ARTICLE


7.


Miscellaneous Provisions


 


                7.1.     Governing Law. This Agreement
and the rights and obligations of the Parties hereunder shall be governed by
the internal laws of the State of California and without regard to its
principles on conflicts of laws.


 


                7.2.     No Waiver or Estoppel;
Remedies Cumulative. The Company and the Manager only in writing may
waive any obligation of or restriction upon the other under this Agreement. Any
failure in the exercise by any Party of its rights to terminate this Agreement
or to enforce any provision of this Agreement for default or violation by the
other Party shall not prejudice such Party’s right of termination or enforcement
for any further default or violation. The rights and remedies provided to the
Parties herein shall be cumulative and in addition to any other rights and
remedies provided by law or otherwise.


 


                7.3.     Violation by Affiliates. Each
of the Manager and each Employee acknowledges and agrees that a violation of
the material restrictions contained in this Agreement by any Affiliate of
Manager, ,or either Employee, or by any other employee of the Manager shall
constitute a breach of this Agreement by Manager and/or each Employee.


 


                7.4.     Participation In Funding. The
Employees shall be permitted on a case by case basis, as may be mutually agreed
upon from time to time by the Company and the Employees, to participate in
funding capital costs at and/or for parking facilities in the Region.


 


                7.5.     Invalidity. The
territorial, time and other limitations contained in Article 2 and Article 5
hereof are reasonable and properly required for the adequate protection of the
business and affairs of 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 to such an area, period, or other
limitation as such court may determine to be reasonable. In the event that any
limitation under such Articles 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.


 


16

















 


 


                7.6.     Severability. If any provision, term,
clause or part of this Agreement is invalid, it shall not affect the remainder
of said provision, term or clause of this Agreement, and the remainder shall be
binding and effective against both parties hereto.


 


                7.7.     Entire Agreement. This Agreement and the
Purchase Agreement constitute the entire understanding among the Parties with
respect to the subject matter hereof and supersede any prior understandings and
agreements, whether written or oral, with respect to such subject matter.


 


                7.8.     Notices. Any
notice or communication required or permitted to be given by any provision of
this Agreement shall be deemed to have been given and received for all purposes
when delivered personally to the party to whom the same is directed or when
mailed or sent by overnight delivery service, charges prepaid, addressed to the
party to whom the same is directed at the address set forth below, or such
other address as the parties to this Agreement have received written notice
from time to time:


 


	
  If to Compmy: 

  	
   

  	
  APCOA, Inc.

  
	
   

  	
   

  	
  I 000 McDonald Investment Center

  
	
   

  	
   

  	
  800 Superior Avenue

  
	
   

  	
   

  	
  Cleveland, Ohio 44114-2601

  
	
   

  	
   

  	
  Attention: Robert Sacks, Esq.

  
	
   

  	
   

  	
  Fax: (216) 523-8080

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Sachnoff & Weaver

  
	
   

  	
   

  	
  30 S. Wacker Drive, Suite 2900

  
	
   

  	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  	
  Attn: Stewart Dolin, Esq.

  
	
   

  	
   

  	
  Fax: (312) 207-6400

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to ManaL,er:

  	
   

  	
  D&E Parking, Inc.

  
	
   

  	
   

  	
  I I 00 Glendon Avenue, Suite 762

  
	
   

  	
   

  	
  Los Angeles, California 90024

  
	
   

  	
   

  	
  Attn: President

  
	
   

  	
   

  	
  Fax: (310) 208-6179

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  If to Employtes:

  	
   

  	
  Edward Simmons

  
	
   

  	
   

  	
  3190 Mountain Park Drive

  
	
   

  	
   

  	
  Calabasas, California 91302

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dale G. Stark

  
	
   

  	
   

  	
  293 1 0 Wagon Road

  
	
   

  	
   

  	
  Agoura, California 91301

  



 


 


17

















 


	
  With:

  	
  t

  	
  Resch Polster Alpert & Berger LLP

  
	
   

  	
   

  	
  10390 Santa Monica Boulevard, 4th Floor

  
	
   

  	
   

  	
  Los Angeles, California 90025

  
	
   

  	
   

  	
  Attn: Lee Polster, Esq.

  
	
   

  	
   

  	
  Fax: (310) 552-3209

  



 


                7.9.     Construction. Whenever the singular is used
in this Agreement and when required by the context, the same shall include the
plural and vice versa; and the masculine gender shall include the feminine or
neuter genders and vice versa. The headings in this Agreement are for
convenience only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any of its provisions.


 


                7.10.   Counterparts. This Agreement may be
executed in multiple counterparts, each of which shall be deemed an original
but all of which shall constitute one and the same instrument.


 


                7.11.   Fax Signature. For purposes of executing
and delivering this Agreement (including any subsequent amendments thereto),
any signed document transmitted by facsimile machine (‘‘FAX’) shall be treated
in all manner and respects as an original document. The signature of any party
by FAX shall be considered for these purposes as an original signature. Any
such FAX document shall be considered to have the same binding legal effect as
an original document. At the request of either party, any FAX document subject
to this Assignment shall be re-executed by both parties in an original form.
The undersigned parties hereby agree that neither shall raise the use of the FAX
or the fact that any signature or document was transmitted or communicated
through the use of a FAX as a defense to the formation of this Agreement.


 


                7.12.   No Third Party Beneficiaries. No provision of
this Agreement is for the benefit of any third party, and no third party shall
have any rights under this Agreement.


 


                7.13.   Actions
of Parties. The Company, the Manager and the Employees each agrees to act in
good faith and in a reasonable and fair manner in carrying out its obligations
and enforcing its rights hereunder. 


 


                7.14.   Indemnification. The Company shall
indemnify, defend, with counsel reasonably satisfactory to the’Manager, and
hold harmless the Manager, its officers, directors, shareholders and employees,
including the Employees from and against any losses, costs, expenses,
liabilities or penalties, including without limitation legal counsel fees,
(collectively, ‘‘Damages’’) incurred
by any of such indemnified parties arising out of or in any way connected with
the provision of the Management Activities, except for any Damages arising out
of or in any way connected with (a) any act or omission of any such indemnified
party not taken in good faith which involves intentional misconduct or knowing
violation of law, (b) any transaction from which any such indemnified party has
derived an improper benefit and/or (c) any material breach of this Agreement or
the Purchase Agreement (each of (a), (b) and (c) the ‘‘Non-Covered Damages’’). The Manager and the Employees shall
indemnify the Company with respect to any losses, costs, expenses, liabilities
or penalties, including without limitation legal counsel fees,


 


18

















 


with respect to any
Non-Covered Damages. Fees, costs and expenses incurred by an indemnified party
shall be advanced as incurred if the indemnified party shall deliver to the
indemnifying party a written undertaking to repay such amounts if it is later
determined that indemnification hereunder was not required by this Section
7.13.


 


                7.15.   Assignment. The Manager and each of the
Employees acknowledge that the services to be rendered by each of them are
unique and personal. Accordingly, the Manager and the Employees may not assign
any of their rights or delegate any of their duties or obligations under this
Agreement, provided that upon written notice to the Company, the Manager may
assign its rights and obligations to another entity wholly owned and controlled
by the Employees. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.


 


 


19

















 


                IN WITNESS
WHEREOF, each of the parties hereto has executed this Agreement as of the date
first above written.


 


	
  APCOA, Inc.,

  
	
  a Delaware corporation

  
	
   

  
	
  By

  	
  /s/ ILLEGIBLE

  
	
   

  	
  Its President

  
	
   

  
	
   

  
	
  ME Parking, Inc.

  
	
  a California corporation

  
	
   

  
	
  By

  	
   

  
	
   

  	
  Its

  	
   

  
	
   

  
	
   

  
	
   

  
	
  Ed E. Simmons

  
	
   

  
	
   

  
	
   

  
	
  Dale G. Stark

  



 


20

















 


                IN WITNESS
WHEREOF, each of the parties hereto has executed this Agreement as of the date
first above written.


 


	
  APCOA, Inc.,

  
	
  a Delawarecorporation

  
	
   

  
	
  By

  	
   

  
	
   

  	
  Its President

  
	
   

  
	
   

  
	
  D&E Parking, Inc.

  
	
  a California corporation

  
	
   

  
	
  By

  	
  /s/ ILLEGIBLE

  
	
   

  	
  Its

  	
  ILLEGIBLE

  
	
   

  
	
   

  
	
  /s/ Ed Simmons

  
	
  Ed E. Simmons

  
	
   

  
	
   

  
	
  /s/ ILLEGIBLE

  
	
  Dale G. it”i V

  



 


 


21

















 


JOINDER


 


The undersigned, the
corporate parent of APCOA, Inc., hereby guarantees &H perfo=ance by APCOA,
W. of afl payment obligations under and pursuant to Section 4.1 and 4.2 of the
foregoing Executivc Parking Management Agreement- The undersigned has all requisite
corporate power and authority to execute and deliver fl& Jobuler
and to perfarm 1w obligations bereundcr. This Joinder consti           the valid and legally binding
obligadon of the undersigned enfaroeable against it in swotdance with its
tornz.


 


 


	
  Holberg Industries, Inc.

  
	
   

  
	
   

  
	
  By:

  	
  /s/ ILLEGIBLE

  
	
  Its:

  	
  I

  



 


22