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EXHIBIT 10.1(M)
EMPLOYMENT CONTRACT
THIS AGREEMENT made and entered into effective this 12th day of June, 2000, by
and between CENTRAL PARKING SYSTEM, INC., a Tennessee corporation with its
principal place of business in Nashville, Tennessee ("EMPLOYER"), and Xxxxx X.
Xxxxx ("EMPLOYEE").
WITNESSETH:
WHEREAS, the parties hereto have reached an understanding as to their contract
of employment, and desire to reduce same to writing.
NOW THEREFORE, in consideration of the premises, the parties hereto have agreed
as follows:
(1) EMPLOYER does hereby employ EMPLOYEE as Senior Vice President and Chief
Financial Officer.
(2) DUTIES. EMPLOYEE agrees to serve in such capacity, and to perform all
the duties required thereof. EMPLOYEE'S duties and powers in that
capacity will be determined by EMPLOYER, and will include, but not
limited to, managing the accounting, tax, treasury and investor
relations functions. EMPLOYEE'S responsibilities shall include, but not
be limited to, (i) ensuring that EMPLOYER'S financial reporting
processes are timely and accurate and its accounting practices are in
conformity with GAAP; (ii) ensuring the adequacy of the EMPLOYER'S
financial controls and policies; (iii) assisting EMPLOYER in evaluating
new business opportunities and potential acquisitions and joint
ventures; (iv) establishing and maintaining relationships with bankers,
securities analysts and the financial community as a whole; (v)
directing the selection, hiring, training and development of all
personnel within the finance function; (vi) directing the budgeting
process; and (vii) performing such other duties from time to time as
may be required by EMPLOYER.
(3) COMPENSATION. EMPLOYER agrees to pay EMPLOYEE for said services a base
salary for FY 2000 and FY 2001 equal to Three Hundred Fifty Thousand
Dollars ($350,000) gross per year (which base salary for FY 2000 shall
be pro rated based on the period of time actually worked by EMPLOYEE in
FY 2000) plus a potential bonus based upon EMPLOYER'S earnings per
share (EPS) realized in the fiscal year. A sample calculation of the
EPS bonus is
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attached for reference purposes. Notwithstanding the above, EMPLOYEE
shall be entitled to an annual bonus of not less than $175,000 for each
FY 2000 (which bonus shall be pro rated based on the period of time
actually worked by EMPLOYEE in FY 2000) and FY 2001. EMPLOYEE may elect
to borrow, in advance, a portion of this potential bonus in an amount
agreed upon by the EMPLOYER through the course of EMPLOYER'S fiscal
year. Should such advance exceed the amount actually due EMPLOYEE based
on the computation of EMPLOYER'S EPS for the period covered by this
Agreement, EMPLOYEE agrees to repay the borrowed amount upon
notification by the EMPLOYER.
It is EMPLOYER'S policy that bonuses will not be earned by two people
during a job change transition period. Therefore, in reference to
EMPLOYEE'S position, if the outgoing manager is to continue working for
EMPLOYER in a similar position or is promoted, then the outgoing
manager will continue to earn toward a bonus until leaving the current
position, and the incoming manager will not begin to earn toward a
bonus until the day after the outgoing manager's last day in the
position. If the outgoing manager resigns, retires, or is removed form
the position, then the incoming manager will begin to earn toward the
bonus from the time he or she commences work and the outgoing person
will not have earned any bonus attributable to the period in which he
has not worked in the position.
(4) DURATION. This Agreement shall continue through September 30, 2001, and
shall continue on a month-to-month basis thereafter until a new
agreement is entered into or until this Agreement is terminated
pursuant to the terms of this paragraph. This Agreement may be
terminated by either party upon thirty (30) days' written notice unless
EMPLOYEE is discharged or resigns as a result of the commission by him
or her of an act involving theft, embezzlement, fraud, intentional
mishandling of EMPLOYER funds, any breach of this Agreement or
conviction of a criminal offense which adversely affects the EMPLOYEE'S
job-related responsibilities in which event such termination will be
effective immediately. EMPLOYER retains in its sole discretion the
option to substitute for the thirty (30) days' written notice of
termination of this Agreement.
(5) EXTENT OF SERVICES. EMPLOYEE shall devote his entire attention and
energy to the business and affairs of EMPLOYER and shall not be engaged
in any other business activity, whether or not such business activity
is pursued for gain, profit or other pecuniary advantage, unless
EMPLOYER consents to EMPLOYEE's involvement in such business activity
in writing. This restriction shall not be construed as preventing
EMPLOYEE from investing his assets in a form or manner that will not
require EMPLOYEE's services in the operation of any of the companies in
which such investments are made.
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(6) SEVERANCE. In the event EMPLOYEE is discharged by EMPLOYER without
CAUSE (as defined below), EMPLOYEE shall be entitled to receive
severance pay equal to a maximum of 24 months base salary which amount
shall be reduced on a pro rata basis for the period of time actually
worked by EMPLOYEE; however, the amount of such severance pay shall not
be less than 12 months of base salary. As an example, in the event
EMPLOYEE is discharged without Cause after working six months, EMPLOYEE
would receive 18 months of base salary. For purposes of this Agreement,
"Cause" shall be defined as the commission by EMPLOYEE of an act
involving theft, embezzlement, fraud, intentional mishandling of
EMPLOYER funds, conviction of a criminal offense which adversely
affects EMPLOYEE'S job-related responsibilities or a violation by
EMPLOYEE of any of the covenants set forth in paragraphs 7 or 8 of this
Agreement. Notwithstanding anything else herein to the contrary,
EMPLOYEE shall not be entitled to receive severance pay in the event he
violates any of the covenants set forth in paragraphs 7 or 8 of this
Agreement.
(7) RESTRICTIVE COVENANTS. During the term of this Agreement and for a
period of one (1) year after termination of employment (or one (1) year
after EMPLOYER is granted injunctive relief to enforce the provisions
of this paragraph, whichever is later.), EMPLOYEE shall not, either as
an individual on his own account or as a partner, joint venturer,
employee, agent, officer, director or shareholder, directly or
indirectly:
a. solicit or attempt to solicit any of EMPLOYER's clients or
customers, whether located within the territory of the
Operation or outside such territory, with the intent or
purpose to perform services for such clients or customers
which are the same or similar to those provided to the
customer by EMPLOYER;
b. hire, solicit or attempt to solicit for the purpose of hiring,
any of EMPLOYER's employees, whether located within the
territory of the operations or outside such territory or to
perform any services as an employee, agent, consultant,
independent contractor, or in any other capacity;
c. enter into, or engage in, any business competitive with that
of EMPLOYER or provide services to any business competitive
with that of EMPLOYER.
(8) CONFIDENTIAL INFORMATION. EMPLOYEE acknowledges and agrees that all
information of a technical or business nature, such as know-how, trade
secrets, business plans, data, processes, techniques, financial
information, information regarding customers, suppliers, consultants,
joint venture partners and employees, inventions, sales and marketing
concepts, discoveries,
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formulas, patterns, and devices (collectively the "Confidential
Information") acquired by EMPLOYEE in the course of his employment
under this Agreement is valuable proprietary information of EMPLOYER.
EMPLOYEE agrees that such Confidential Information, whether in written,
verbal or model form, shall not be disclosed to anyone outside the
employment of EMPLOYER without EMPLOYER's written consent unless the
Confidential Information has been made generally available to the
public through no fault of the EMPLOYEE.
(9) RETURN OF COMPANY PROPERTY. Upon termination of EMPLOYEE's employment
with or without cause, EMPLOYEE shall immediately return and deliver to
EMPLOYER and shall not retain any originals or copies of any books,
papers, price lists, customer contracts, bids, customer lists, files,
notebooks, computer files, computer hardware or software, or any other
documents or computer records which are company property, which
contains Confidential Information, or which otherwise relate to
EMPLOYEE's performance of duties under this Agreement. EMPLOYEE further
acknowledges and agrees that all such documents and computer records
are EMPLOYER's sole and exclusive property.
(10) NOTICE. All notices, demands and communications required, desired or
permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given on the date received, if delivered personally,
or on the third day after mailing, if sent by registered or certified
mail, return receipt requested, postage prepaid, and addressed to the
parties at the addresses set forth below or to such other person at
such location as either party hereto may subsequently designate in a
similar manner.
(11) CONSTRUCTION OF AGREEMENT. This Agreement shall be interpreted,
construed and governed by and under the laws of the State of Tennessee
without reference to the choice of law doctrine of such state, and
EMPLOYEE unconditionally submits to the jurisdiction of the courts
located in the State of Tennessee in all matters relating to or arising
from this Agreement, except to the extent that an issue is subject to
the arbitration clause set out herein.
a. If any provision or clause of this Agreement or the
application thereof to either party is held to be invalid by a court of
competent jurisdiction, then such provision shall be severed herefrom,
and such invalidity shall not affect any other provision of this
Agreement, the balance of which shall remain in and have its intended
full force and effect.
b. In the event that the provisions of Paragraphs 7, 8 or 9 of
this Agreement shall ever be deemed to exceed the time or geographical
limits permitted by applicable law, then such provisions shall be
reformed to the maximum time and geographical limits permitted by
applicable law.
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c. References herein to "Paragraphs" or "Subparagraphs" mean the
various paragraphs and subparagraphs of this Agreement. The headings
and titles of the Paragraphs of this Agreement are not a part of this
Agreement, but are for convenience only and are not intended to define,
limit or construe the contents of the various Paragraphs. The term
"including" means including, without limitation, unless the context
clearly indicates otherwise.
d. If EMPLOYEE defaults in the performance of its covenants,
agreements, or other obligations described in paragraphs 7, 8 or 9 of
this Agreement, then in addition to any and all other rights or
remedies which the EMPLOYER may have against the EMPLOYEE, EMPLOYEE
will be liable to and will pay to the EMPLOYER a sum equal to the
EMPLOYER's court costs and the reasonable fees of its attorneys and
their support staff incurred in enforcing the covenants, agreements and
other obligations set out in paragraphs 6,7 or 8 of this Agreement.
e. EMPLOYEE acknowledges and agrees that it is impossible to
measure completely in money, the damages which will accrue to the
EMPLOYER if EMPLOYEE shall breach or be in default of the provisions
set forth in paragraphs 7, 8 or 9 of this Agreement. Accordingly, if
any action or proceeding is instituted by or on behalf of the EMPLOYER
to enforce any provisions in paragraphs 7, 8 or 9 of this Agreement,
EMPLOYEE hereby waives any claim or defense thereto that EMPLOYER has
adequate remedy at law or that EMPLOYER has not been, or is not being,
irreparably injured thereby. The rights and remedies of the EMPLOYER
pursuant to this paragraph are cumulative, in addition to, and shall
not be deemed to exclude any other right or remedy which the EMPLOYER
may have pursuant to this Agreement or otherwise, at law or in equity,
including, without limitation, the rights and remedies available to the
EMPLOYER under Tennessee statutory or common law.
(12) ARBITRATION. EMPLOYEE and EMPLOYER knowingly and voluntarily agree to
submit to binding arbitration any claims, disputes, or controversies
arising out of or relating to this employment relationship or this
Agreement, or alleged breach thereof, including any present or future
claim of employment discrimination by EMPLOYEE under either federal or
state law. Although workers' compensation issues are not within the
scope of this provision, workers' compensation retaliation claims are
intended to be arbitrable. Arbitration shall serve as the exclusive
forum for claims described above, with the exception that EMPLOYER need
not submit issues relating to a breach or threatened breach of
paragraphs 7, 8 or 9 to arbitration.
Any arbitration under this paragraph must be instituted within the
applicable statute of limitations governing the dispute under state or
federal law. The laws of the State of Tennessee
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shall govern all issues relating to such arbitration, including but not
limited to the applicability and enforceability of this arbitration
provision, without reference to the choice of law doctrine of such
state. Such arbitration shall be conducted in Nashville, Tennessee (or
such other location designated by EMPLOYER) in accordance with the
governing rules of the Federal Mediation and Conciliation Service
("FMCS") then in effect, except for any rule in conflict with this
paragraph. If for any reason FMCS cannot provide a panel from which to
select an arbitrator, EMPLOYER may utilize any other arbitrator
selection services, including the American Arbitration Association. One
arbitrator shall be selected, using an alternating-strike method, from
a list of arbitrators provided by FMCS. EMPLOYEE and EMPLOYER will have
the right of representation of their own choosing at such hearing as
well as the right to present and cross examine witnesses and to submit
relevant evidence. Both parties shall have the right, unless waived at
the hearing, to file a post-hearing brief and the selected arbitrator
shall not limit this right. Judgment may be entered on the arbitrator's
award in any court of competent jurisdiction.
The arbitrator shall have full and complete power to settle any claim
presented, including any federal or state claim of employment
discrimination or retaliation by EMPLOYEE, and to fashion an
appropriate remedy. However, the arbitrator shall not have the power to
amend or modify this Agreement. In any dispute concerning the
termination of EMPLOYEE, the arbitrator may not award reinstatement or
any other remedy unless he or she determines that EMPLOYER was not
entitled to terminate EMPLOYEE under this Agreement. Fees and costs for
the arbitration will be split equally between the parties; however,
each party will be responsible for their own attorney's fees.
(13) ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties hereto with respect to the subject matter hereof, and there
are no understandings, representations or warranties of any kind
between the parties except as expressly set forth herein.
(14) NO ORAL NOTIFICATION. This Agreement may not be modified except by a
writing duly signed by both parties hereto.
(15) NO ASSIGNMENT. Neither this Agreement nor any right or obligation of
EMPLOYEE hereunder may be assigned by EMPLOYEE without the prior
written consent of EMPLOYER. Subject thereto, this Agreement and the
covenants and conditions herein contained shall inure to the benefit of
and shall be binding upon the parties hereto and their respective
successors and permitted assigns.
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(16) All references herein to payment or sums of money shall mean in U.S.
currency only. All references herein to calendar year, month, week or
day shall mean the calendar and parts thereof as observed in the U.S.
All references herein to date and time shall mean the date and time in
Nashville, Tennessee, U.S.
(17) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall constitute one
and the same agreement.
(18) The waiver by either party of a breach or default by the other party of
any provision of this Agreement shall not operate or be construed as a
waiver of any other, continuing or subsequent breach or default by such
party.
WITNESS our hands the day and date first above written.
CENTRAL PARKING SYSTEM, INC. XXXXX X. XXXXX
By: /s/ Monroe J. Carell, Jr. /s/ Xxxxx X. Xxxxx
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Title: Chief Executive Officer
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