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EXHIBIT 10.20
CONSULTING AGREEMENT
This CONSULTING AGREEMENT (this "Agreement") made effective as of
February 12, 1998 by and between Central Parking Corporation (the "Company"),
and Xxxxx Xxxx (the "Consultant").
In consideration of the mutual covenants contained in this Agreement,
the parties hereby agree as follows:
SECTION I
ENGAGEMENT
The Company agrees to engage the Consultant and the Consultant agrees
to be engaged by the Company for the Period of Consulting as provided below upon
the terms and conditions provided in the Agreement.
SECTION II
TERMS AND DUTIES
A. Period of Consulting.
The period of the Consultant's employment under this Agreement will
commence as of February 12, 1998, and shall continue through February 12, 2003,
subject to termination as provided in this Agreement ("Period of Consulting").
B. Duties.
During the Period of Consulting, the Consultant
(a) shall, at Consultant's option, oversee the day to day
management of those locations on Exhibit "A";
(b) may, at Consultant's option, seek new business
opportunities in the form of leases in or management of parking facilities and
shall present such opportunities to the Company; and
(c) shall offer to the Company, for the greater of the Period
of Consulting or five (5) years from the date hereof, the option to acquire up
to 50% of the interest, if any, proposed to be acquired by the Consultant in
commercial real property or a long-term leasehold in respect of commercial
property in excess of 50 years in each case that is reasonably likely to be used
in the Company's parking business, wherever located, under the procedures and
terms described in Section
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7.12 of the Agreement and Plan of Merger among Company, affiliates of Consultant
and others dated as of November 7, 1997 ("Merger Agreement").
The Consultant will perform faithfully the duties which may be required
hereunder. The Consultant shall not be required to perform services hereunder at
any specific location or at any office of the Company. Consultant shall be
permitted to perform the services hereunder by telephone or other method.
Consultant shall be available on a reasonable basis from time to time.
SECTION III
COMPENSATION
A. Consulting Fee.
For all services rendered by the Consultant in any capacity during the
Period of Consulting, the Consultant shall be paid an annual fee (the "Base
Consulting Fee") of Two Hundred Thousand Dollars ($200,000.00), payable in years
two through five only, inclusive, of the Period of Consulting, in equal monthly
installments.
B. Participating Consulting Fee.
In addition to the Base Consulting Fee, the Consultant shall be
entitled to an annual fee in respect of opportunities presented pursuant to
Section II(B)(b) (the "Participating Consulting Fee") equal to (a) (i) 10% of
all Adjusted Operating Income (defined as Net Operating Income less a G & A cost
equal to 5% of the location's normal cost of operations. "Net Operating Income"
shall be defined as the amount computed by deducting from the gross receipts
realized from ongoing parking operations all normal costs of operations,
including, but not limited to, Profit Sharing Plan contributions, depreciation
and/or amortization expense on equipment or other up front costs or capital
expenditures, and taxes except for federal, state and city income taxes.)
derived from new leases where Consultant was primarily responsible for such
lease, and (ii) 10% of all Adjusted Operating Income derived from new management
agreements where Consultant was primarily responsible for securing the
management agreement; less (b) the Base Consulting Fee. The Participating
Consulting Fee will be paid to Consultant for five years from the date of
commencement of operation pursuant to the lease or management agreement. The
Participating Consulting Fee shall be computed and payable within 75 days of the
end of each fiscal year during the period such fees are due. Any properties in
which Consultant is an investor shall not be included in calculation of the
Participating Consulting Fee.
SECTION IV
BUSINESS EXPENSES
A. The Company will reimburse the Consultant for all reasonable travel
and other expenses incurred by the Consultant in connection with the performance
of his duties and obligations under this Agreement, subject to usual and
customary Company reimbursement policies.
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B. The Company shall provide Consultant with an office, a telephone, a
parking pass and a secretary during the Period of Consulting.
SECTION V
DEATH OR DISABILITY
In the event of the death or disability of the Consultant during the
Period of Consulting, the Company's obligation to make payments under this
Agreement shall cease as of the date of death or disability, except for earned
but unpaid Base Consulting Fee, which will be paid on a pro-rated basis for that
year, and the Participating Consulting Fee payable with respect to previously
secured leases and/or management agreements, which shall continue to be paid
until the fifth anniversary of the date such lease and/or management agreements
were secured. The term "disability" will have the same meaning as provided in
the United States Internal Revenue Code.
SECTION VI
EFFECT OF TERMINATION OF THIS AGREEMENT
A. If this Agreement is terminated due to a Without Cause Termination,
the Company will pay the Consultant the Base Consulting Fee for the balance of
the five year term and Consultant will continue to receive any previously earned
Participating Consulting Fees payable with respect to previously secured leases
and/or management agreements until the fifth anniversary of the date such lease
and/or management agreements were secured.
B. If this Agreement is terminated due to a Termination for Cause or
resignation or voluntary termination by Consultant, earned but unpaid Base
Consulting Fee will be paid on a pro-rated basis through the date of
termination. No other payments will be made or benefits provided by the Company,
and all Participating Consulting Fees shall terminate.
C. For this Agreement, the following terms have the following meanings:
1. "Termination for Cause" means termination of this Agreement
by the Company's Board of Directors acting in good faith by written notice to
the Consultant due to material breach of this Agreement or the Consultant's
misconduct with respect to his duties under this Agreement, that constitutes
theft, embezzlement, fraud, intentional mishandling of Company funds, or any
other material act or omission which is materially injurious to the financial
condition or business reputation of the Company.
2. "Without Cause Termination" means termination of this
Agreement by the Company other than due to death, disability or Termination for
Cause.
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SECTION VII
OTHER DUTIES OF THE CONSULTANT DURING
AND AFTER THE PERIOD OF CONSULTING
A. The Consultant will, with reasonable notice during or after the
Period of Consulting, furnish information as may be in his possession and
cooperate with the Company as may reasonably be requested in connection with any
claims or legal actions in which the Company is or may become a party.
B. The Consultant recognizes and acknowledges that all information
pertaining to the affairs, business, clients, customers or other relationships
of the Company and its subsidiaries and affiliates, other than that which has
been publicly disclosed, is confidential and is a unique and valuable asset of
the Company. Access to and knowledge of this information are essential to the
performance of the Consultant's duties under this Agreement. The Consultant will
not during the Period of Consulting or after except to the extent reasonably
necessary in performance of the duties under this Agreement, give to any person,
firm, association, corporation or governmental agency any information concerning
the affairs, business, clients, customers or other relationships of the Company,
except as required by law or court order. The Consultant will not make use of
this type of information for his own purposes or for the benefit of any person
or organization other than the Company. All records, memoranda and other
writings relating to the business of the Company, whether made by the Consultant
or otherwise coming into his possession, which are confidential and will remain
the property of the Company.
C. During the Period of Consulting, the Consultant will not use his
status with the Company to obtain loans, goods or services from another
organization on terms that would not be available to him in the absence of his
relationship to the Company. The Consultant will not (a) throughout the Period
of Consulting; (b) with respect to (i) and (iii) below only, for a thirty-six
(36) month period following the termination of the Period of Consulting, as it
relates to any managed or leased parking location or operation of the Company as
such exists at the termination date; and (c) for a twelve (12) month period
following the termination of the Period of Consulting within a 50 mile radius of
any parking location acquired by the Company under the terms of the Merger
Agreement engage in any of the following activities: (i) perform any acts
intended to advance the interests of any existing competitors of the Company in
any way that will materially injure the interests of the Company; (ii) directly
or indirectly own or hold any proprietary interest in, provide advice or
consulting services, operate or manage or be employed or receive compensation
from any business or activity engaged in the same or similar business as the
Company; or (iii) solicit the business of any manager, owner or lessor of the
Company, solicit any employee or members of then current managers, owners or
lessors of or to the Company, in each case with respect to existing contracts or
locations of the Company. For the purposes of the Agreement, proprietary
interest Means legal or equitable ownership, whether through stock holdings or
otherwise, of a debt or equity interest (including options, warrants, rights and
convertible interests) in a business firm or entity, or ownership of more than
5% of any class of debt or equity interest in a publicly-held company. The
Consultant acknowledges that the covenants contained herein are reasonable as to
geographic and temporal scope. For a thirty-six (36) month period after
termination of the Period of Consulting the
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Consultant will not directly or indirectly hire any then current employee of the
Company or solicit or encourage any such employee to leave the employ of the
Company.
D. If Consultant breaches, or threatens to commit a breach of, any of
the provisions contained in this Article VII, the Company shall have the
following rights and remedies with respect to, each of which rights and remedies
shall be independent of the others and severally enforceable, and each of which
is in addition to, and not in lieu of, any other rights and remedies available
to Company under law or in equity.
(a) the right and remedy to have the provisions of Article VII
specifically enforced by any court of competent jurisdiction, it being agreed
that any breach or threatened breach of the provisions of Article VII would
cause irreparable injury to the Company and that money damages would not provide
an adequate remedy to the Company; and
(b) the right and remedy to require Consultant to account for
and pay over to the Company, all compensation, profits, monies, accruals,
increments or other benefits derived or received by Consultant as the result of
any action constituting a breach of Article VII.
E. Consultant acknowledges and agrees that the provisions of Article
VII are reasonable and valid in geographical and temporal scope and in all other
respects. If any court determines that the provisions of Article VII, or any
part thereof, is unenforceable because of the duration or geographical scope of
such provision, such court shall have the power to reduce the duration or scope
of such provision, as the case may be, and, in its reduced form, such provision
shall be enforceable.
F. If any court determines that the provisions of Article VII, or any
part thereof, is invalid or unenforceable, the remainder of the provisions of
Article VII shall not thereby be affected and shall be given full effect without
regard to the invalid portions.
G. Notwithstanding the provisions of this Section VII, the Consultant
may, in accordance with the terms of the Shareholders Agreement and Agreement
Not to Compete among Company, Consultant and others dated February _, 1998
("Shareholders Agreement"), make the investments described in Section 4.01(b)
of the Shareholders Agreement.
H. The expiration of the term of any restrictive provision contained
herein shall not impair or affect the continuing validity or application of the
same, similar or related provisions contained in any other agreement entered
into between the parties hereunder.
SECTION VIII
INDEMNIFICATION, LITIGATION
The Company will indemnify the Consultant to the fullest extent
permitted by the laws of the state of incorporation in effect at that time, or
certificate of incorporation and by-laws of the Company, whichever affords the
greater protection to the Consultant.
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SECTION IX
INDEPENDENT CONTRACTOR
The Consultant is an independent contractor and not an employee of the
Company. The Company will not withhold from any payments under this Agreement
any federal, state, city or other taxes that would be required to be withheld or
paid pursuant to any law or governmental regulation relating to employees. The
Consultant shall be responsible for all such amounts and shall indemnify and
hold the Company harmless with respect to such amounts and the failure of
Company to withhold or pay such amounts.
SECTION X
EFFECTIVE PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company
and the Consultant with respect to the subject matter and supersedes any prior
employment, consulting or severance agreements between the Company and its
affiliates, and the Consultant.
SECTION XI
CONSOLIDATION, MERGER OR SALE OF ASSETS
Nothing in this Agreement shall preclude the Company from consolidating
or merging into or with, or transferring all or substantially all of its assets
to, another corporation or entity which assumes this Agreement and all
obligations and undertakings of the Company hereunder. Upon such a
Consolidation, Merger or Sale of Assets, the term "the Company" as used will
mean the other corporation or entity and this Agreement shall continue in full
force and effect.
SECTION XII
MODIFICATION
This Agreement may not be modified or amended except in writing signed
by the parties. No term or condition of this Agreement will be deemed to have
been waived, except in writing by the party charged with waiver. A waiver shall
operate only as to the specific term or condition waived and will not constitute
a waiver for the future or act on anything other than that which is specifically
waived.
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SECTION XIII
GOVERNING LAW
This Agreement has been executed and delivered in the State of New York
and its validity, interpretation, performance and enforcement shall be governed
by the internal laws of that state. The parties consent to the exclusive venue
and jurisdictions of the federal and state courts of the State of New York.
SECTION XIV
NOTICES
All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed to have been made when delivered or
mailed first-class postage prepaid by registered mail, return receipt requested,
or when delivered if by hand, overnight delivery service or confirmed facsimile
transmission, to the following:
(a) If to the Company, at 0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Chairman, or at such other address as may
have been furnished to the Consultant by the Company in writing, copy to Xxxx
Manner, Xxxxxxx, Xxxxxx, Xxxx, Xxxxxxx & Manner, P.C., 1800 First American
Center, 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000; or
(b) If to the Consultant, at the address designated for
notices in the Shareholders Agreement, or such other address as may have been
furnished to the Company by the Consultant in writing.
SECTION XV
BINDING AGREEMENT
This Agreement shall be binding on the parties' successors, heirs and
assigns.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMPANY:
CENTRAL PARKING CORPORATION
By: /s/ Monroe J. Carell, Jr.
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Title: Chairman & C.E.O.
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CONSULTANT
/s/ XXXXX XXXX
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XXXXX XXXX
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