FORM OF VOTING AGREEMENT
Exhibit 10.2
FORM OF
VOTING AGREEMENT
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”) is dated as of February 20, 2007, by and
among KCPC Holdings, Inc., a Delaware (“Parent”), KCPC Acquisition, Inc., a Tennessee
corporation and a wholly owned subsidiary of Parent (“Merger Sub”) and •
(“Shareholder”).
RECITALS
WHEREAS, simultaneously with the execution of this Agreement, Parent, Merger Sub, and Central
Parking Corporation, a Tennessee corporation (the “Company”), have entered into an
Agreement and Plan of Merger (as it may be amended, supplemented, modified or waived from time to
time the “Merger Agreement”), which provides, among other things, for the Merger of Merger
Sub with and into the Company, upon the terms and subject to the conditions set forth therein;
WHEREAS, Shareholder is the record owner of, and has the sole right to vote and dispose of,
that number of shares of Company Common Stock set forth below Shareholder’s name on the signature
page hereto (the “Owned Securities”) and is the Beneficial Owner of that number of shares
of Company Common Stock set forth on Exhibit A attached hereto the (“Beneficially
Owned Securities”);
WHEREAS, Shareholder acknowledges that Parent has agreed, subject to the conditions set forth
in the Merger Agreement, to pay substantial consideration for the shares of Company Common Stock
that are Beneficially Owned by Shareholder pursuant to the Merger and that payment of such
consideration will inure to Shareholder’s best interests and Shareholder is, therefore, willing to
execute this Agreement and abide by and be bound by the covenants and agreements contained herein;
and
WHEREAS, as an inducement to Parent and Merger Sub entering into the Merger Agreement and
incurring the obligations therein, Parent and Merger Sub have required that Shareholder enter into
this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
I. CERTAIN DEFINITIONS
Section 1.1 Capitalized Terms. Capitalized terms used in this Agreement and not
defined herein have the meanings ascribed to such terms in the Merger Agreement.
Section 1.2 Other Definitions. For the purposes of this Agreement:
(a) “Beneficial Owner” or “Beneficial Ownership” or “Beneficially
Owned” with respect to any securities means having “beneficial ownership” of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act).
(b) “Expiration Time” has the meaning set forth in Section 2.1.
(c) “Owned Securities” has the meaning set forth in the Recitals.
(d) “Permitted Transferee” has the meaning set forth in Section 2.3.
(e) “Representative” means, with respect to any particular Person, any director,
officer, employee, consultant, accountant, legal counsel, investment banker or other representative
of such Person.
(f) “Transfer” means, with respect to a security, the sale, grant, assignment,
transfer, pledge, encumbrance, hypothecate or other disposition of such security or the Beneficial
Ownership thereof (including by operation of Law), or the entry into any Contract to effect any of
the foregoing, including, for purposes of this Agreement, the transfer or sharing of any voting
power of such security or other rights in or of such security.
II. AGREEMENT TO VOTE
Section 2.1 Agreement to Vote. Subject to the terms and conditions hereof,
Shareholder irrevocably and unconditionally agrees that from and after the date hereof and until
the earliest to occur of (x) the Effective Time, (y) the termination of the Merger Agreement in
accordance with its terms and (z) any reduction in the amount, or any change in the form, of the
consideration to be paid to the shareholders pursuant to the Merger Agreement without the written
consent of the Shareholder ( such earlier time, the “Expiration Time”), (i) at any meeting
(whether annual or special, and at each adjourned or postponed meeting) of the Company’s
Shareholders, however called, or in connection with any written consent of the Company’s
Shareholders (a “Shareholder Meeting”), Shareholder will vote, or cause to be voted
(including by written consent, if applicable), all of such Shareholder’s Owned Securities and will
use Shareholder’s reasonable best efforts to cause to be voted Shareholder’s Beneficially Owned
Securities that are not Owned Securities (I) in favor of the approval of the Merger Agreement
(whether or not recommended by the Board of Directors of the Company or any committee thereof) and
the approval of the transactions contemplated thereby, including the Merger, (II) in favor of the
approval of any other matter that is required by applicable Law or a Governmental Entity to be
approved by the Shareholders of the Company to facilitate the transactions contemplated by the
Merger Agreement, including the Merger, (III) against any proposal made in opposition to, or in
competition or inconsistent with, the Merger or the Merger Agreement, including the approval
thereof or the consummation thereof, (IV) against any action or agreement that would reasonably be
expected to result in any condition to the consummation of the Merger set forth in Articles VI, VII
or VIII of the Merger Agreement not being fulfilled, and (V) against any other action that would
reasonably be expected to impede, interfere with, delay, postpone or attempt to discourage the
consummation of the transactions contemplated by the Merger Agreement, including the Merger, or
result in a breach of any of the covenants, representations, warranties or other obligations or
agreements of the Company under the Merger Agreement, which would materially and adversely affect
the Company or Parent or their respective abilities to consummate the transactions contemplated by
the Merger Agreement prior to the Termination Date and (ii) at any Shareholder Meeting, Shareholder
will (x) appear at such meeting or otherwise cause its Owned Securities, and will use Shareholder’s reasonable best
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efforts to cause Shareholder’s Beneficially Owned Securities that are not Owned Securities, to be present
thereat for purposes of calculating a quorum, and respond to each request by the Company for
written consent, if any and (y) vote, or cause to be voted (including by written consent) all of
the Shareholder’s Owned Securities, and will use Shareholder’s reasonable best efforts to cause to
be voted Shareholder’s Beneficially Owned Securities that are not Owned Securities, against (A) any
Acquisition Proposal and (B) any extraordinary dividend by the Company or change in the capital
structure of the Company in each case except for the Merger Agreement.
Section 2.2 Additional Equity Securities. Shareholder hereby agrees, while this
Agreement is in effect, to promptly notify Parent of the number of any new Equity Securities with
respect to which Beneficial Ownership is acquired by Shareholder, if any, after the date hereof and
before the Expiration Time. Any such Equity Securities shall automatically become subject to the
terms of this Agreement as though owned by Shareholder as of the date hereof and shall be deemed to
be Owned Securities.
Section 2.3 Restrictions on Transfer, Etc. Shareholder agrees, from the date hereof
until the Expiration Time, not to (i) directly or indirectly Transfer any Owned Securities or
Beneficially Owned Securities, other than any Transfer to members of Shareholder’s immediate family
or a family trust of Shareholder (each a “Permitted Transferee”), but only if, in each
case, prior to the effectiveness of the Transfer, the Permitted Transferee of such Owned Securities
or Beneficially Owned Securities agrees in writing to be bound by the terms hereof (or an agreement
that is substantively identical to this Agreement) and notice of such Transfer, including the name
and address of the Permitted Transferee, is delivered to Parent pursuant to Section 6.1 hereof;
provided that Transfers to minor children shall be to their legal custodians who have the capacity
and authority to be bound by the terms hereof on behalf of such minor children; and provided,
further, that Shareholder shall remain liable for the breaches of any Permitted Transferees of the
terms hereof, (ii) tender any Owned Securities or Beneficially Owned Securities into any tender or
exchange offer or (iii) grant any proxy with respect to the Owned Securities or Beneficially Owned
Securities, deposit the Owned Securities or Beneficially Owned Securities into a voting trust,
enter into a voting agreement with respect to any of the Owned Securities or Beneficially Owned
Securities or otherwise restrict the ability of Shareholder freely to exercise all voting rights
with respect thereto. Any action attempted to be taken in violation of the preceding sentence will
be null and void. Shareholder further agrees to authorize and request Parent and the Company to
notify the Company’s transfer agent that there is a stop transfer order with respect to all of the
Owned Securities or Beneficially Owned Securities (other than in respect of Transfers expressly
permitted by this Section 2.3) and that this Agreement places limits on the voting of the Owned
Securities or Beneficially Owned Securities.
Section 2.4 Proxies. Shareholder hereby revokes any and all previous proxies granted
with respect to its Owned Securities or Beneficially Owned Securities. By entering into this
Agreement, subject to the last sentence of this Section 2.4, Shareholder hereby grants a proxy
appointing the President of Parent or any other officer of Parent designated for such purpose by
the Board of Directors of Parent, as Shareholder’s attorney-in-fact and proxy, for and in
Shareholder’s name, to be counted as present, vote, express consent or dissent with respect to its
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Owned Securities solely on the matters set forth in, and in the manner contemplated by, Section 2.1. The proxy granted by Shareholder pursuant to this Section 2.4 is, subject to the last
sentence of this Section 2.4, irrevocable and is coupled with an interest, in accordance with
Section 48-17-203(d) of the Tennessee Business Corporation Act, and is granted in order to secure
Shareholder’s performance under this Agreement and also in consideration of Parent entering into
this Agreement and the Merger Agreement. If Shareholder fails for any reason to be counted as
present, consent or vote the Owned Securities in accordance with the requirements of Section 2.1
above (or anticipatorily breaches such section), then Parent shall have the right to cause to be
present, consent or vote Shareholder’s Owned Securities in accordance with the provisions of
Section 2.1. The proxy granted by Shareholder shall be automatically revoked upon termination of
this Agreement in accordance with its terms.
III. REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of Shareholder. Shareholder represents and
warrants to Parent as of the date of this Agreement, as of the date of any Shareholder Meeting
(and as of the date of any adjournment or postponement thereof) and as of the date of the execution
of any written Shareholder consent or any proxy permitted under this Agreement or consented to by
Parent, as follows:
(a) Shareholder has the requisite capacity and authority to execute and deliver this Agreement
and to fulfill and perform its obligations hereunder. This Agreement has been duly and validly
executed and delivered by Shareholder and constitutes a legal, valid and binding agreement of
Shareholder enforceable by Parent against Shareholder in accordance with its terms.
(b) Shareholder is the record and Beneficial Owner, free and clear of any Liens (other than
those arising under this Agreement) of the Owned Securities and, except as provided in this
Agreement, has full and unrestricted power to dispose of and vote all of the Owned Securities
without the consent or approval of, or any other action on the part of any other Person, and has
not granted any proxy inconsistent with this Agreement that is still effective or entered into any
voting or similar agreement with respect to, the Owned Securities or Beneficially Owned Securities.
The Owned Securities and Beneficially Owned Securities set forth on Exhibit A constitute
all of the capital stock of the Company that is Beneficially Owned by Shareholder as of the date
hereof, and other than as may be reflected on Exhibit A, Shareholder does not have any
right to acquire (whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the foregoing), any Securities
or any Convertible Securities.
(c) Other than the filing by Shareholder of any reports with the SEC required by Section 13(d)
or 16(a) of the Exchange Act, none of the execution and delivery of this Agreement by Shareholder,
the consummation by Shareholder of the transactions contemplated hereby or compliance by
Shareholder with any of the provisions hereof (i) requires any consent or other Permit of, or
filing with or notification to, any Governmental Entity or any other Person by Shareholder, (ii)
results in a violation or breach of, or constitutes (with or without notice or lapse of time or
both) a default (or gives rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions of any
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organizational document or Contract to which Shareholder is a party or by which Shareholder or
any of Shareholder’s properties or assets (including the Owned Securities) may be bound, (iii)
violates any Order or Law applicable to Shareholder or any of Shareholder’s properties or assets
(including the Owned Securities), or (iv) results in an Encumbrance upon any of Shareholder’s
properties or assets (including the Owned Securities or Beneficially Owned Securities).
IV. ADDITIONAL COVENANTS OF SHAREHOLDER
Section 4.1 Disclosure. Shareholder hereby authorizes Parent and the Company to
publish and disclose in any announcement or disclosure required by the SEC, including the Proxy
Statement, Shareholder’s identity and ownership of the Owned Securities or Beneficially Owned
Securities and the nature of Shareholder’s obligation under this Agreement, provided that
Shareholder is provided with a reasonable opportunity to review and comment on such disclosure.
Section 4.2 Non-Interference; Further Assurances. Shareholder agrees that prior to
the termination of this Agreement, Shareholder shall not take any action that would make any
representation or warranty of Shareholder contained herein untrue or incorrect or have the effect
of preventing, impeding, interfering with or adversely affecting the performance by Shareholder of
its obligations under this Agreement. Shareholder agrees, without further consideration, to
execute and deliver such additional documents and to take such further actions as necessary or
reasonably requested by Parent to confirm and assure the rights and obligations set forth in this
Agreement or to consummate the transactions contemplated by this Agreement.
Section 4.3 No Solicitation. Subject to Section 6.13, the Shareholder agrees and
covenants that the Shareholder :
(a) shall (x) immediately cease and cause to be terminated all activities, discussions or
negotiations with any parties with respect to any Acquisition Proposal, other than the Merger and
(y) notify the Parent immediately if any Person makes any proposal, offer, inquiry or contact with
Shareholder with respect to any of the foregoing (whether solicited or unsolicited); and
(b) shall not, and shall direct and use its reasonable best efforts to cause the
Representatives of the Shareholder not to, directly or indirectly, (i) initiate, solicit,
entertain, encourage or facilitate (including by way of furnishing information) an Acquisition
Proposal, (ii) enter into, consider, continue or otherwise participate in or pursue in any manner
any discussions or negotiations regarding, or provide any confidential information or data to any
person relating to, an Acquisition Proposal, knowingly facilitate any effort or attempt to make or
implement an Acquisition Proposal; or otherwise cooperate in any way with, any Acquisition
Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition
Proposal or (iv) approve or recommend, or propose to approve or recommend, or execute or enter
into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option
agreement or other similar agreement related to any Acquisition Proposal or propose or agree to do
any of the foregoing.
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Section 4.4 No Knowledge of Claims. The Shareholder acknowledges that as of the
date hereof, the Shareholder has no knowledge of any facts or circumstances that would form the basis of any claim (including claims by any third party against the Shareholder for which the
Shareholder would be entitled to indemnification from the Company) by the Shareholder against the
Company or any of its Subsidiaries. Notwithstanding the foregoing, the Shareholder is not waiving
the Shareholder’s right to bring any such claims, including any rights and claims that Shareholder
has had, now has or might now have against the Company or any of its Subsidiaries including (a)
rights and claims arising from or in connection with the Merger Agreement, (b) rights and claims
for indemnification to the extent Shareholder is entitled to be indemnified by the Company or any
of its Subsidiaries under their respective organizational documents, (c) rights or claims under the
Employment Agreement dated December 13, 2004, as amended, the Revised Deferred Compensation
Agreement dated December 14, 2004, as amended, (d) any and all other rights and claims for payment
of accrued and unpaid wages and compensation earned by the Shareholder and/or coverage to which the
Shareholder may be entitled under the Plans, and (e) any rights and claims arising from any
agreement between the Shareholder and the Company or any of its Subsidiaries which may be entered
into with the Parent or the Surviving Corporation at or following the Closing.
V. TERMINATION
Section 5.1 Termination. This Agreement will terminate without further action at the
Expiration Time.
Section 5.2 Effect of Termination. Upon termination of this Agreement, the rights and
obligations of all the parties will terminate and become void without further action by any party
except for the provisions of Section 4.1, this Section 5.2 and Article VI, which will survive such
termination. For the avoidance of doubt, the termination of this Agreement shall not relieve any
party of liability for any breach of this Agreement prior to the time of termination.
VI. GENERAL
Section 6.1 Notices. Any notice, request, instruction or other communication under
this Agreement will be in writing and delivered by hand or overnight courier service or by
facsimile, (i) if to Shareholder, to the address set forth below its name on the signature page
hereto, and (ii) if to Parent or Merger Sub, in accordance with Section 10.1 of the Merger
Agreement, or to such other Persons, addresses or facsimile numbers as may be designated in writing
by the Person entitled to receive such communication as provided above. Each such communication
will be effective (A) if delivered by hand or overnight courier service, when such delivery is made
at the address specified in accordance with this Section 6.1, or (B) if delivered by facsimile,
when such facsimile is transmitted to the facsimile number specified in accordance with this
Section 6.1 and confirmation of receipt is received by the sender.
Section 6.2 No Third Party Beneficiaries, Etc. This Agreement is not intended to
confer any rights or remedies upon any Person other than the parties to this Agreement, or to make
Shareholder responsible for any of the Company’s obligations under the Merger Agreement.
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Section 6.3 Governing Law. This Agreement will be governed by, and construed in
accordance with, the Laws of the State of Tennessee.
Section 6.4 Severability. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable Law, but in case any
one or more of the provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and
purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be affected by such
invalidity, and this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained in this Agreement.
Section 6.5 Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto without the prior written
consent of the other party. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors or assigns, heirs,
legatees, distributees, executors, administrators and guardians.
Section 6.6 Interpretation. The Section and Article headings contained in this
Agreement are inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or Articles contained in this
Agreement mean Sections or Articles of this Agreement, unless otherwise stated.
Section 6.7 Amendments. This Agreement, and the terms and provisions of this
Agreement, may be modified, waived or amended only by an instrument or instruments in writing
signed by the party against whom enforcement of any such modification or amendment is sought (or,
in the case of a waiver, by the intended beneficiary of the waived term or provision). The failure
of any party hereto to enforce at any time any provision of this Agreement shall not be construed
to be a waiver of such provision, nor in any way to affect the validity of this Agreement or any
part of this Agreement or the right of any party thereafter to enforce each and every such
provision. The waiver by any party hereto of a breach of any term or provision of this Agreement
shall not be construed as a waiver of any subsequent breach.
Section 6.8 Fees and Expenses. Each party shall be responsible for and shall pay all
costs and expenses incurred by such party in connection with this Agreement and the transactions
contemplated by this Agreement, whether the Merger is or is not consummated.
Section 6.9 Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter of this Agreement and supersede all prior
agreements, understandings, and negotiations, both written and oral, between the parties with
respect to the subject matter of this Agreement
Section 6.10 Counterparts; Effectiveness; Execution. This Agreement may be executed
in one or more counterparts, all of which shall be considered one and the same agreement, and
shall become effective against the parties that have executed and delivered the Agreement when one
or more counterparts have been signed by each party hereto.
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Section 6.11 Specific Performance. The parties to this Agreement agree that
irreparable damage would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It is accordingly
agreed that the parties to this Agreement will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Section 6.12 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT
(i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (ii) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) IT
MAKES SUCH WAIVER VOLUNTARILY AND (iv) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 6.12.
Section 6.13 Action in Shareholder Capacity Only. The parties acknowledge that this
Agreement is entered into by Shareholder solely in such Shareholder’s capacity as the Beneficial
Owner of such Shareholder’s Owned Securities and nothing in this Agreement restricts or limits any
action taken by such Shareholder in its capacity as a director or officer of the Company or any of
its Affiliates and the taking of any actions (or failure to act) in its capacity as an officer or
director of the Company, or any of its Affiliates, will not be deemed to constitute a breach of
this Agreement, regardless of the circumstances thereto.
[Remainder of page intentionally left blank. Signature Page Follows.]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be signed as of the date
first written above.
| KCPC HOLDINGS, INC. | ||||||
| By: | /s/ | |||||
| Name: | ||||||
| Title: | ||||||
| KCPC ACQUISITION, INC. | ||||||
| By: | /s/ | |||||
| Name: | ||||||
| Title: | ||||||
| SHAREHOLDER: | ||||||
| [SHAREHOLDER NAME] | ||||||
| By: | /s/
|
|||||
| Owned Securities: | ||||||
EXHIBIT A
Beneficially Owned Securities
