Exhibit 10.2


 


SECOND AMENDMENT TO AMENDED AND


RESTATED EMPLOYMENT AGREEMENT


 


This
Second Amendment to Amended and Restated
Employment Agreement is made as of the 28th day of January, 2009, by and between Standard Parking Corporation, a Delaware corporation (the “Company”), and G. Marc Baumann
(the “Executive”).


 


RECITALS


 


A.            Executive and APCOA/Standard Parking, Inc.,
a Delaware corporation (“A/SP”),
previously executed a certain Amended and Restated Employment Agreement dated
as of October 1, 2001 (the “Initial Agreement”).  The Company is the successor-in-interest to
all of A/SP’s rights, and has assumed all of A/SP’s obligations, under the
Initial Agreement.  The Initial Agreement
has been modified by that certain First Amendment to Amended and Restated Employment
Agreement dated December 29, 2008 between the Company and Executive (the
Initial Agreement as modified by said First Amendment being hereafter referred
to as 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:


 


(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;


 


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(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 using, at any time after his
termination of employment with the Company, information which is in the public
domain or knowledge acquired during the course of his employment with the
Company which is generally known to persons of his experience in other
companies in the same industry.


 


(d)           Assignment
of Intellectual Property Rights.  The
Executive agrees to assign to the Company any and all intellectual property
rights including patents, trademarks, copyright and business plans or systems
developed, authored or conceived by the Executive while so employed and
relating to the business of the Company, and the Executive agrees to cooperate
with the Company’s attorneys to perfect ownership rights thereof in the Company
or any one or more of the Company. This agreement does not apply to an
invention for which no equipment, supplies, facility or Trade Secret and
Confidential Information of the Company was used and which was developed
entirely on the Executive’s 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 Parking Companies, or (ii) the invention
results from any work performed by the Executive for the Parking Companies.


 


(e)           Inevitable
Disclosure.  Based upon the Recitals
to this Agreement and the representations the Executive has made in Sections


 


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6(a) and 6(b) above, the Executive
acknowledges that the Company’s business is highly competitive and that it
derives significant value from both its Trade Secret and Confidential
Information not being generally known in the marketplace and from their
long-standing near-permanent customer relationships.  Based upon this acknowledgment and his
acknowledgments in Sections 6(a) and 6(b), the Executive further
acknowledges that he inevitably would disclose the Company’s Trade Secret and
Confidential Information, including trade secrets, should the Executive serve
as director, officer, manager, supervisor, consultant, independent contractor,
owner of greater than 1% of the stock, representative, agent, or executive
(where the Executive’s duties as an employee would involve any level of
strategic, advisory, technical, creative sales, or other similar input) for any
person, partnership, joint venture, firm, corporation, or other enterprise
which is a competitor of the Company engaged in providing parking facility
management services because it would be impossible for the Executive to serve
in any of the above capacities for such a competitor of the Company without
using or disclosing the Company’s Trade Secret and Confidential Information,
including trade secrets.  The above acknowledgment
concerning inevitable disclosure is a rebuttable presumption.  Executive may, in particular circumstances,
rebut the presumption by proving by clear and convincing evidence that the
Executive would not inevitably disclose trade secret or confidential
information were he to accept employment or otherwise act in a capacity that
would arguably violate this Agreement


 


(f)            Non-Solicitation.  The Executive
agrees that while he is employed by the Company and for a period of twenty-four
(24) months after the Date of Termination, the Executive shall not, directly or
indirectly:


 


(i)        without first obtaining the express written permission of the
Company’s General Counsel, which permission may be withheld solely in the
Company’s discretion, directly or indirectly contact or solicit business from
any client or customer of the Company with whom the Executive had any contact
or about whom the Executive acquired any Trade Secret or Confidential
Information during his employment with the Company or about whom the Executive
has acquired any information as a result of his employment with the
Company.  Likewise, the Executive shall
not, without first obtaining the express written permission of the Company’s
General Counsel which permission may be withheld solely in the Company’s
discretion, directly or indirectly contact or solicit business from any person
responsible for referring business to the Company or who regularly refers
business to the Company with whom the Executive had any contact or about whom
the Executive acquired any Trade Secret or Confidential Information during his
employment with the Company or about whom the Executive has acquired any
information as a result of his employment with the Company.  The Executive’s obligations set forth in


 


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this Section are in addition to those
obligations and representations, including those regarding Trade Secret and
Confidential Information and inevitable disclosure of the Trade Secret and
Confidential Information of the Parking Companies set forth in this Section 6;
or


 


(ii)       take any action to recruit or to directly or indirectly assist
in the recruiting or solicitation for employment of any officer, employee or
representative of the Parking Companies.


 


It is not the intention of the Company to
interfere with the employment opportunities of former employees except in those
situations, described above, in which such employment would conflict with the
legitimate interests of the Company.  If
the Executive, after the termination of his employment hereunder, has any
question regarding the applicability of the above provisions to a potential
employment opportunity, the Executive acknowledges that it is his
responsibility to contact the Company so that the Company may inform the
Executive of its position with respect to such opportunity.


 


(g)           Salary
Continuation Payments.  As additional
consideration for the representation and restrictions contained in this Section 6,
if Executive’s termination occurs for any reason (including without limitation
the Company’s effective termination of Executive’s employment at the end of any
Employment Period expiring prior to October 1, 2020 by reason of the
Company’s election to give a Notice of Nonrenewal pursuant to Section 1)
other than for Cause or by reason of Executive’s voluntary termination as
provided in Section 4(c) (“Voluntary Termination”),
then in addition to any amounts payable by the Company to the Date of
Termination as provided in Section 4(d) and without in any manner
releasing, impairing or altering to any extent any of Executive’s rights
pursuant to any other provisions of this Agreement, the Company agrees to pay
Executive amounts (the “Salary Continuation
Payments”) which, when combined with all any and all amounts that may
be payable to Executive by the Company pursuant to Section 5(a) or Section 5(e),
will total Executive’s Annual Base Salary and Annual Target Bonus as in effect
immediately preceding the Date of Termination for a period of twenty-four (24)
months following (i) the Date of Termination, or (ii) the last day of
the Employment Period if the Company gives a Notice of Nonrenewal (the “Salary Continuation Payments”).  The Salary Continuation Payments shall be
payable as and when such amounts would be paid in accordance with Section 3(a) and
(b) above.  In the event of a
Voluntary Termination, or if Executive is terminated for Cause, or if the
Company terminates Executive’s employment at the end of any Employment Period
expiring on or after October 1, 2020 by reason of any Notice of Nonrenewal
given pursuant to Section 1, the Salary Continuation Payments shall be
reduced to the agreed total amount of


 


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$50,000, payable over a 12-month period following the Date of Termination
in equal monthly installments.  In the
event Executive breaches this Agreement at any time during the 24-month period
following the Date of Termination, the Company’s obligation to continue any
Salary Continuation Payments shall immediately cease, and the Executive shall
immediately return to the Company all Salary Continuation Payments paid up to
that time.  The termination of Salary
Continuation Payments shall not waive any other rights at law or equity which
the Company may have against Executive by virtue of his breach of this
Agreement. The Company’s obligation to make Salary Continuation Payments shall
also cease with respect to periods after Executive’s death.


 


(h)           Remedies.  The Executive acknowledges that the Company
would be irreparably injured by a violation of the covenants of this Section 6
and agrees that the Company, or any one or more of the Parking Companies, in
addition to any other remedies available to it or them for such breach or
threatened breach, shall be entitled to a preliminary injunction, temporary
restraining order, or other equivalent relief, restraining the Executive from
any actual or threatened breach of any of the provisions of this Section 6.  If a bond is required to be posted in order
for the Company or any one or more of the Company to secure an injunction or
other equitable remedy, the parties agree that said bond need not exceed a
nominal sum.  This Section shall be
applicable regardless of the reason for the Executive’s termination of
employment, and independent of any alleged action or alleged breach of any
provision hereby by the Company.  If at
any time any of the provisions of this Section 6 shall be determined to be
invalid or unenforceable by reason of being vague or unreasonable as to
duration, area, scope of activity or otherwise, then this Section 6 shall
be considered divisible (with the other provisions to remain in full force and
effect) and the invalid or unenforceable provisions shall become and be deemed
to be immediately amended to include only such time, area, scope of activity
and other restrictions, as shall be determined to be reasonable and enforceable
by the court or other body having jurisdiction over the matter, and the
Executive expressly agrees that this Agreement, as so amended, shall be valid
and binding as though any invalid or unenforceable provision had not been
included herein.


 


(i)            Attorneys’
Fees.  In the event of litigation in
connection with or concerning the subject matter of this Agreement, the
prevailing party shall be entitled to recover all costs and expenses of
litigation incurred by it, including without limitation attorneys’ fees and, in
the case of the Company, reasonable compensation for the services of its
internal personnel.”


 


2.                                       The
third sentence of Section 5(a) of the Agreement is hereby deleted in
its entirety.


 


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3.                                       Except
as expressly modified above, all of the remaining terms and provisions of the
Agreement are hereby ratified and confirmed in all respects, and shall remain
in full force and effect in accordance with their terms.


 


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IN WITNESS WHEREOF, the Company and Executive have executed this Second Amendment to
Amended and Restated Employment Agreement as of the day and year first above
written.


 


	
  COMPANY:

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
  STANDARD
  PARKING CORPORATION,

  	
   

  	
   

  
	
  a Delaware corporation

  	
   

  	
  /s/ G. Marc Baumann

  
	
   

  	
   

  	
  G. Marc Baumann

  
	
  By:

  	
  /s/ James
  A. Wilhelm

  	
   

  	
   

  
	
   

  	
  James A. Wilhelm

  	
   

  	
   

  
	
   

  	
  President and Chief Executive Officer

  	
   

  	
   

  



 


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