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EMPLOYMENT CONTRACT
THIS AGREEMENT made and entered into effective this 1st day of October, 2000, by
and between CENTRAL PARKING SYSTEM, INC., a Tennessee corporation with its
principal place of business in Nashville, Tennessee ("EMPLOYER"), and Xxxxxxx X.
Xxxx ("EXECUTIVE").
W I T N E S S E T H:
WHEREAS, EMPLOYER desires to induce EXECUTIVE to serve or continue to serve as
an executive officer of EMPLOYER;
WHEREAS, EXECUTIVE has access to trade secrets and confidential information of
EMPLOYER including, but not limited to, the terms of, and the parties to,
EMPLOYER's leases, management contracts and other contracts pursuant to which
EMPLOYER operates its business, and EXECUTIVE has the ability to influence the
goodwill of EMPLOYER with such parties;
WHEREAS, in consideration of his continued employment at will upon the terms and
conditions hereinafter set forth, and the payment of the amounts hereinafter set
forth, including but not limited to, the Termination Amount (as hereinafter
defined), EXECUTIVE has agreed to be bound by such terms and conditions,
including but not limited to, the restrictive covenants set forth hereinafter;
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, EMPLOYER and EXECUTIVE agree as follows:
(1) TITLE. Subject to the terms and conditions of this Agreement, EMPLOYER
does hereby employ EXECUTIVE during the Term (as defined below) as Executive
Vice President.
(2) DUTIES. EXECUTIVE agrees to serve in such capacity, and to perform all
the duties required thereof. EXECUTIVE'S duties and powers in that capacity
will be determined by EMPLOYER, and are expected to include, but not be limited
to, managing EMPLOYER's operations in certain geographical areas and managing
certain administrative functions as may be determined from time to time by
EMPLOYER.
(3) COMPENSATION. During the Term, EMPLOYER agrees to pay EXECUTIVE for
said services a base salary ("Base Salary") of $350,000 gross per year. Base
Salary shall be payable in accordance with the ordinary payroll practices of
EMPLOYER but no less frequently than biweekly. Any increase in Base Salary
shall be in the discretion of EMPLOYER and, as so increased, shall constitute
"Base Salary" hereunder. During the Term, in addition to his Base Salary,
EXECUTIVE shall, with respect to each fiscal year beginning on or about October
1, be eligible to receive an annual bonus (the "Bonus") in accordance with the
Company's bonus program as may be in effect from time-to-time. For the fiscal
year beginning on October 1, 2000, EXECUTIVE's Bonus shall be determined as set
forth in Exhibit A to this Agreement. EXECUTIVE may elect to draw, in advance,
up to fifty percent (50%) of the Bonus through the course of EMPLOYER'S fiscal
year. Should such advance exceed the amount actually due EXECUTIVE based on the
computation of EXECUTIVE'S Bonus, EXECUTIVE agrees to repay the borrowed amount
upon notification by 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 EXECUTIVE'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
from 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) ADDITIONAL COMPENSATION AND BENEFITS. During the Term, EXECUTIVE shall
be eligible to participate in any additional compensation and benefits plans or
programs maintained by EMPLOYER from time to time in which other senior
executives of EMPLOYER participate on terms comparable to those applicable to
such other senior executives generally (commensurate with EXECUTIVE's position
with EMPLOYER).
(5) STOCK OPTIONS. During the Term, EXECUTIVE shall be eligible to receive
stock options under EMPLOYER'S 1995 Incentive and Nonqualified Stock Option Plan
for Key Employees or substitute plan (the "Plan") in amounts and on terms
comparable to other senior executives generally (commensurate with EXECUTIVE'S
position with EMPLOYER). In accordance with the Plan, such stock options shall
have a term of ten (10) years and shall vest as determined by the Board of
Directors at the date of grant; provided, however, that in the event of
EXECUTIVE'S termination without Cause or for Good Reason (as such terms are
defined below), all unvested options held by EXECUTIVE on the termination date
shall vest as of such date and EXECUTIVE shall have the right to exercise all
vested options during the one-year period following termination.
(6) TERM. This Agreement shall continue through September 30, 2001;
provided, however, that the Term shall be automatically renewed for a one-year
period on October 1, 2001, and on each anniversary thereof and, as so renewed,
shall constitute the "Term" hereunder, unless EMPLOYER has notified EXECUTIVE in
writing prior to the thirty-day period ending on the expiration of the then Term
that such Term shall not be so renewed and that EXECUTIVE's employment shall be
terminated. Notwithstanding the foregoing, this Agreement may be terminated at
any time by either EMPLOYER or EXECUTIVE upon thirty days' prior written
notice (except that such notice is not required in the event EXECUTIVE's
employment is terminated for Cause (as defined below)); provided, however,
EMPLOYER retains in its sole discretion the option to substitute for the thirty
(30) days' written notice of termination an amount of pay, with normal
withholdings, as pay in lieu of notice. Notwithstanding any of the foregoing,
Sections 9, 10, 11, 12, 13 and 14 shall survive the termination of this
Agreement.
(7) EXTENT OF SERVICES. EXECUTIVE 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
EXECUTIVE's involvement in such business activity in writing. This restriction
shall not be construed as preventing EXECUTIVE from investing his assets in a
form or manner that will not require EXECUTIVE's services in the operation of
any of the companies in which such investments are made.
(8) TERMINATION OF EMPLOYMENT.
8.1 Termination without Cause; Resignation for Good Reason. (a) In the
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event that EXECUTIVE's employment is terminated (i) by EMPLOYER other than for
Cause (as defined below), including without limitation a termination of this
Agreement pursuant to a notice by EMPLOYER that the then Term will not be
renewed, and other than as a result of EXECUTIVE's death or Permanent Disability
(as defined below), or (ii) by EXECUTIVE for Good Reason (as defined below),
EXECUTIVE shall receive the following amounts:
(i) a cash lump sum payment in respect of EXECUTIVE's Base Salary
earned but not yet paid (the "Compensation Payment"), in each case through the
effective date of such termination;
(ii) such payments, if any, under applicable plans or programs,
including but not limited to those referred to in Section 4 hereof, to which he
is entitled pursuant to the terms of such plans or programs;
(iii) an amount (the "Termination Amount") equal to one hundred
and twenty-five percent (125%) of EXECUTIVE's Base Salary; and
(iv) the Bonus in respect of the fiscal year in which his
termination of employment occurs, prorated by a fraction, the numerator of which
is the number of days from the beginning of the then current fiscal year through
and including the date of his termination and the denominator of which is 365,
less any amounts drawn in advance under Section 3 of this Agreement.
(b) The Compensation Payment shall be paid by EMPLOYER to
EXECUTIVE within thirty (30) days after the termination of EXECUTIVE's
employment by check payable to the order of EXECUTIVE or by wire transfer to an
account specified by EXECUTIVE. The Termination Amount shall be payable in
equal installments during the one-year period following termination of
employment in accordance with the ordinary payroll practices of EMPLOYER, but no
less frequently than bi-weekly. The Bonus shall be paid following the end of
the fiscal year in which EXECUTIVE's employment terminated in accordance with
EMPLOYER's ordinary practices, but in no event later than December 15 of such
year. Notwithstanding anything else herein to the contrary, EXECUTIVE shall not
be entitled to receive the Termination Amount in the event he violates any of
the covenants set forth in Sections 9 or 10 of this Agreement.
(c) For purposes of this Agreement, "Good Reason" shall mean a
reduction by EMPLOYER in excess of fifteen (15%) in the amount of EXECUTIVE's
Base Salary or Bonus Potential (as defined below) unless the reduction in the
amount of Bonus Potential is part of a program in which the Bonus Potential of
at least ninety percent (90%) of the senior executives of EMPLOYER is reduced.
Bonus Potential means the amount of Bonus EXECUTIVE would earn if he meets the
budget objectives or other objectives as may be set forth in the bonus plan as
amended from time-to-time. It is understood that the actual amount of Bonus
earned by EXECUTIVE can vary from year to year depending upon performance and
such variance, regardless of amount, shall not constitute "Good Reason." It is
further understood that the amount of EXECUTIVE's Bonus Potential may be reduced
for factors such as the closure or loss of cities or locations, sale of cities
or properties, or as a result of economic conditions and that any such
reduction, regardless of amount, shall not constitute "Good Reason."
8.2 Permanent Disability. In the event that EXECUTIVE becomes disabled
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during the Term to an extent which entitles him to benefits under EMPLOYER's
long-term disability benefit plan applicable to senior executive officers
generally as in effect on the date hereof ("Permanent Disability"), Executive's
employment shall terminate automatically, and EXECUTIVE shall receive or
commence receiving, as soon as practicable:
(i) amounts payable pursuant to the terms of a long-term
disability insurance policy or similar arrangement which EMPLOYER maintains
during the Term;
(ii) the Compensation Payment;
(iii) such payments, if any, under applicable plans or programs,
including but not limited to those referred to in Section 4 hereof, to which he
is entitled pursuant to the terms of such plans or programs; and
(iv) the Bonus in respect of the fiscal year in which his
termination occurs prorated by a fraction, the numerator of which is the number
of days from the beginning of the then current fiscal year through and including
the date of his termination and the denominator of which is 365, less any
amounts drawn in advance under Section 3 of this Agreement.
.
8.3 Death. In the event of EXECUTIVE's death during the Term,
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EXECUTIVE's employment shall terminate automatically, and EXECUTIVE's estate or
designated beneficiaries shall receive or commence receiving, as soon as
practicable:
(i) any death benefits provided under the employee benefit plans,
programs and practices referred to in Section 4 hereof, in accordance with their
terms;
(ii) the Compensation Payment;
(iii) such payments, if any, under applicable plans or programs,
including but not limited to those referred to in Section 4 hereof, to which
EXECUTIVE's estate or designated beneficiaries are entitled pursuant to the
terms of such plans or programs; and
(iv) the Bonus in respect of the fiscal year in which his death
occurs, prorated by a fraction, the numerator of which is the number of days
from the beginning of the then current fiscal year through and including the
date of his death and the denominator of which is 365, less any amounts drawn in
advance under Section 3 of this Agreement.
8.4 Resignation Without Good Reason. In the event that EXECUTIVE's
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employment is terminated by EXECUTIVE other than for Good Reason and other than
as a result of EXECUTIVE's death or Permanent Disability, EXECUTIVE shall
receive the following amounts:
(i) the Compensation Payment;
(ii) such payments, if any, under applicable plans or programs, including
but not limited to those referred to in Section 4 hereof, to which he is
entitled pursuant to the terms of such plans or programs; and
(iii) the Bonus in respect of the fiscal year in which his termination of
employment occurs, prorated by a fraction, the numerator of which is the number
of days from the beginning of the then current fiscal year through and including
the date of his termination and the denominator of which is 365, less any
amounts drawn in advance under Section 3 of this Agreement.
8.5 Termination for Cause. EMPLOYER shall have the right to terminate
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the employment of EXECUTIVE for Cause. In the event that EXECUTIVE's employment
is terminated by EMPLOYER for Cause, EXECUTIVE shall only be entitled to
receive the following amounts and shall not be entitled to the payment of any
other compensation otherwise included under this Agreement:
(i) the Compensation Payment; and
(ii) such payments, if any, under applicable plans or programs,
including but not limited to those referred to in Section 4 hereof, to which he
is entitled pursuant to the terms of such plans or programs.
After the termination of EXECUTIVE's employment under this Section 8.5, the
obligations of EMPLOYER under this Agreement to make any further payments or
provide any benefits specified herein to EXECUTIVE shall thereupon cease and
terminate.
For purposes of this Agreement, "Cause" shall be defined as (i) the
commission by EXECUTIVE of an act involving theft, embezzlement, fraud or
intentional mishandling of EMPLOYER funds; (ii) conviction of a criminal offense
which adversely affects EXECUTIVE's job-related responsibilities; (iii) a
violation by EXECUTIVE of the covenants set forth in Sections 9 or 10 of this
Agreement; or (iv) EXECUTIVE's deliberate and intentional continuing refusal to
substantially perform his duties and obligations, which continues beyond ten
days after a written demand for substantial performance is delivered to
EXECUTIVE by EMPLOYER.
(9) RESTRICTIVE COVENANTS.
9.1. Covenant Not-to-Compete. During the term of this Agreement and
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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
Section, whichever is later), EXECUTIVE shall not, directly or indirectly,
either as an individual for his own account or as a consultant, partner, joint
venturer, employee, agent, officer, director or shareholder, engage in the same
or similar business of EMPLOYER or any of its parents, subsidiaries,
partnerships, joint ventures, affiliates or related companies (collectively
referred to hereinafter as "Affiliated Entities") within fifty (50) miles of the
perimeter of any county or any independent city in which he is rendering or has
rendered services to or for EMPLOYER during the one-year period prior to
termination of his employment.
9.2 Non-solicitation and Other Covenants. During the term of this
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Agreement and for a period of two (2) years after termination of employment (or
two (2) years after EMPLOYER is granted injunctive relief to enforce the
provisions of this Section, whichever is later), EXECUTIVE shall not, directly
or indirectly, either as an individual for his own account or as a consultant,
partner, joint venturer, employee, agent, officer, director or shareholder:
(i) solicit or attempt to solicit any clients, customers or
landlords of EMPLOYER or any of its Affiliated Entities existing on the date of
EXECUTIVE's termination with the intent or purpose to perform services for such
clients, customers or landlords which are the same or similar to those provided
by EMPLOYER or any of its Affiliated Entities, or encourage or attempt to
encourage any such clients, customers or landlords to not continue or otherwise
modify adversely its business relationship with EMPLOYER or its Affiliated
Entities;
(ii) enter into any lease, sublease, license agreement,
services agreement, option agreement, management or operating agreement relating
to, or otherwise acquire any rights with respect to, any of the parking
facilities managed or operated by EMPLOYER or any of its Affiliated Entities on
the date of EXECUTIVE's termination; or
(iii) engage, hire, solicit or attempt to solicit for the purpose
of hiring or engaging, as an employee, agent, consultant, independent
contractor, or in any other capacity, any of EMPLOYER's or its Affiliated
Entities' employees or consultants.
EXECUTIVE acknowledges and agrees that the provisions of Sections 9 and 10 of
this Agreement are intended to protect EMPLOYER's interest in certain
confidential information and established landlord, client and other contractual
relationships and goodwill and that such provisions are reasonable and valid in
geographical and temporal scope and in all other respects.
(10) CONFIDENTIAL INFORMATION. EXECUTIVE 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 clients, customers, landlords, suppliers, consultants, joint venture
partners and employees, contracts, leases, inventions, sales and marketing
concepts, discoveries, formulae, patterns, and devices (collectively, the
"Confidential Information'') acquired by EXECUTIVE in the course of his
employment under this Agreement is valuable proprietary information of EMPLOYER.
EXECUTIVE 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
EXECUTIVE.
(11) RETURN OF COMPANY PROPERTY. Upon termination of EXECUTIVE's employment
with or without Cause, EXECUTIVE 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 EXECUTIVE's performance of duties
under this Agreement. EXECUTIVE further acknowledges and agrees that all such
documents and computer records are EMPLOYER's sole and exclusive property.
(12) 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:
EMPLOYER: EXECUTIVE:
Central Parking System, Inc. Xxxxxxx X. Xxxx
0000 00xx Xxxxxx Xxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000 Xxxxxxxxx, XX 00000
Attn: Monroe J. Carell, Jr.
(13) 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 EXECUTIVE
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 and have its intended full force and effect.
b. In the event that the provisions of Sections 9 or 10 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.
c. References herein to "Sections" or "Subsections" mean the various
Sections and subsections of this Agreement. The headings and titles of the
Sections 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 Sections. The term "including" means including, without
limitation, unless the context clearly indicates otherwise.
d. If EXECUTIVE defaults in the performance of the covenants,
agreements, or other obligations described in Sections 9 or 10 of this
Agreement, then in addition to any and all other rights or remedies which
EMPLOYER may have against the EXECUTIVE, (i) EXECUTIVE will be liable to and
will pay to EMPLOYER a sum equal to 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 Sections 9 or 10 of this
Agreement; and (ii) EMPLOYER shall be entitled to discontinue the payment of the
Termination Amount and to institute an action to recover any portion of the
Termination Amount already paid under this Agreement.
e. EXECUTIVE acknowledges and agrees that it is impossible to measure
completely in money the damages which will accrue to EMPLOYER if EXECUTIVE shall
breach or be in default of the provisions set forth in Sections 9 or 10 of this
Agreement. Accordingly, if any action or proceeding is instituted by or on
behalf of EMPLOYER to enforce any provisions in Sections 9 or 10 of this
Agreement, EXECUTIVE hereby waives any claim or defense thereto that EMPLOYER
has an adequate remedy at law or that EMPLOYER has not been, or is not being,
irreparably injured thereby. The rights and remedies of EMPLOYER pursuant to
this Section are cumulative, in addition to, and shall not be deemed to exclude
any other right or remedy which EMPLOYER may have pursuant to this Agreement or
otherwise, at law or in equity, including, without limitation, the rights and
remedies available to EMPLOYER under Tennessee statutory or common law.
(14) ARBITRATION. EXECUTIVE 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 EXECUTIVE 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 Sections 9 or 10 to arbitration.
Any arbitration under this Section must be instituted within the applicable
statute of limitations governing the dispute under state or federal law. The
laws of the State of Tennessee 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 Section. 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. EXECUTIVE 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 EXECUTIVE, 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 EXECUTIVE, the arbitrator may not award
reinstatement or any other remedy unless he or she determines that EMPLOYER was
not entitled to terminate EXECUTIVE 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.
(15) 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.
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(16) NO ORAL NOTIFICATION. This Agreement may not be modified except by a
writing duly signed by both parties hereto.
(17) NO ASSIGNMENT. Neither this Agreement nor any right or obligation of
EXECUTIVE hereunder may be assigned by EXECUTIVE 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.
(18) 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.
(19) 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.
(20) 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.
EMPLOYER: EXECUTIVE:
CENTRAL PARKING SYSTEM, INC.
/s/ Monroe J. Carell /s/ Xxxxxxx X. Xxxx
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Monroe J. Carell Xxxxxxx X. Xxxx
Title: Chairman of the Board
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