Exhibit 10.7.5


 


FIFTH
AMENDMENT TO


EMPLOYMENT
AGREEMENT


 


This Fifth
Amendment to Employment Agreement is
made as of the 28th day of January, 2009, by and between Standard Parking Corporation, a Delaware corporation (the “Company”), and Robert N. Sacks
(the “Executive”).


 


RECITALS


 


A.                                    Executive
and APCOA, Inc., a Delaware corporation (“APCOA”),
previously executed a certain Employment Agreement dated as of May 18,
1998 (the “Original Employment Agreement”).  The Original Employment Agreement was
modified by that certain First Amendment To Employment Agreement dated as of November 7,
2001 by and between APCOA/Standard Parking, Inc., a Delaware corporation
formerly known as APCOA, Inc. (“A/SP”) and
Executive (the “First Amendment”), that certain
Second Amendment To Employment Agreement dated as of August 1, 2003 by and
between A/SP and Executive (the “Second Amendment”),
that certain Third Amendment To Employment Agreement dated as of April 1,
2005 by and between the Company and Executive (the “Third
Amendment”), and that certain Fourth Amendment To Employment
Agreement dated December 29, 2008 by and between the Company and Executive
(the “Fourth Amendment”).  The Original Employment Agreement, as
modified by the First Amendment, Second Amendment, Third Amendment and Fourth
Amendment, is hereafter referred to as the “Agreement”.  The Company is the successor-in-interest to
all of APCOA’s and A/SP’s rights and obligations under the Agreement.


 


B.                                    The
Company and Executive have agreed to modify certain provisions of the Agreement
as set forth below.


 


NOW,
THEREFORE, in consideration of the Recitals, the mutual
promises and undertakings herein set forth, and the sum of Ten Dollars ($10.00)
in hand paid, the receipt and sufficiency of which consideration are hereby acknowledged,
the parties hereby agree that the Agreement shall be deemed modified and
amended, effective immediately, as follows:


 


1.                                       Section 6
of the Agreement shall be amended to read, in its entirety as so amended, as
follows:


 


                        “6.                                 Protection
of Company Assets.


 


(a)                                  Trade
Secret and Confidential Information. 
The Executive recognizes and acknowledges that the acquisition and
operation of, and the providing of consulting services for, parking facilities
is a unique enterprise and that there are relatively few firms engaged in these
businesses in the primary areas in which the Parking Companies operates.  The Executive


 

















 


further recognizes
and acknowledges that as a result of his employment with the Parking Companies,
the Executive has had and will continue to have access to confidential
information and trade secrets of the Parking Companies that constitute
proprietary information that the Parking Companies are entitled to protect,
which information constitutes special and unique assets of the Parking Companies,
including without limitation (i) information relating to the Parking
Companies’ manner and methods of doing business, including without limitation,
strategies for negotiating leases and management agreements; (ii) the
identity of the Parking Companies’ clients, customers, prospective clients and
customers, lessors and locations, and the identity of any individuals or
entities having an equity or other economic interest in any of the Parking
Companies to the extent such identity has not otherwise been voluntarily
disclosed by any of the Parking Companies; (iii) the specific confidential
terms of management agreements, leases or other business agreements, including
without limitation the duration of, and the fees, rent or other payments due
thereunder; (iv) the identities of beneficiaries under land trusts; (v) the
business, developments, activities or systems of the Parking Companies,
including without limitation any marketing or customer service oriented
programs in the development stages or not otherwise known to the general
public; (vi) information concerning the business affairs of any individual
or firm doing business with the Parking Companies; (vii) financial data
and the operating expense structure pertaining to any parking facility owned,
operated, leased or managed by the Parking Companies or for which the Parking
Companies have or are providing consulting services; (viii) information
pertaining to computer systems, including but not limited to computer software,
used in the operation of the Parking Companies; and (ix) other
confidential information and trade secrets relating to the operation of the
Company’s business (the matters described in this sentence hereafter referred
to as the “Trade Secret and Confidential Information”).


 


(b)                                 Customer
Relationships.  The Executive
understands and acknowledges that the Company has expended significant
resources over many years to identify, develop, and maintain its clients.  The Executive additionally acknowledges that
the Company’s clients have had continuous and long-standing relationships with
the Company and that, as a result of these close, long-term relationships, the
Company possesses significant knowledge of its clients and their needs.  Finally, the Executive acknowledges the
Executive’s association and contact with these clients is derived solely from
his employment with the Company.  The
Executive further acknowledges that the Company does business throughout the
United States and that the Executive personally has significant contact with
the Company customers solely as a result of his relationship with the Company.


 


(c)                                  Confidentiality.  With respect to Trade Secret and Confidential
Information, and except as may be required by the lawful order of a court of
competent jurisdiction, the Executive agrees that he shall:


 


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(i)                         hold all Trade Secret and
Confidential Information in strict confidence and not publish or otherwise
disclose any portion thereof to any person whatsoever except with the prior
written consent of the Company;


 


(ii)                      use all
reasonable precautions to assure that the Trade Secret and Confidential
Information are properly protected and kept from unauthorized persons;


 


(iii)                   make no use of
any Trade Secret and Confidential Information except as is required in the
performance of his duties for the Company; and


 


(iv)                  upon termination
of his employment with the Company, whether voluntary or involuntary and
regardless of the reason or cause, or upon the request of the Company, promptly
return to the Company any and all documents, and other things relating to any
Trade Secret and Confidential Information, all of which are and shall remain
the sole property of the Company.  The
term “documents” as used in the preceding sentence shall mean all forms of
written or recorded information and shall include, without limitation, all
accounts, budgets, compilations, computer records (including, but not limited
to, computer programs, software, disks, diskettes or any other electronic or
magnetic storage media), contracts, correspondence, data, diagrams, drawings,
financial statements, memoranda, microfilm or microfiche, notes, notebooks,
marketing or other plans, printed materials, records and reports, as well as
any and all copies, reproductions or summaries thereof.


 


Notwithstanding
the above, nothing contained herein shall restrict the Executive from 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


 


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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 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


 


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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 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 March 30,
2018 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 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), 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 March 30, 2018 by


 


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reason of any
Notice of Nonrenewal given pursuant to Section 1, the Salary Continuation
Payments shall be reduced to the agreed total amount of $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.”


 


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


 


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.


 


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


 


	
  COMPANY:

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
  STANDARD PARKING CORPORATION,

  	
   

  	
   

  
	
  a Delaware
  corporation

  	
   

  	
   

  
	
   

  	
   

  	
  Robert
  N. Sacks

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  James
  A. Wilhelm

  	
   

  	
   

  
	
   

  	
  President
  and Chief Executive Officer

  	
   

  	
   

  



 


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