EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT by and between CENTRAL PARKING CORPORATION, a
Tennessee corporation (the "Company"), and XXXXXXX X. XXXX, an individual
residing in Brentwood, Tennessee (the "Executive"), is effective as of August 2,
2005.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:
SECTION I
EMPLOYMENT
Executive is currently employed by the Company. The Company desires to
continue to employ the Executive, and the Executive agrees to continue to be
employed by the Company upon the terms and conditions provided in the Agreement.
SECTION II
POSITION AND RESPONSIBILITIES
During the Period of Employment (as such term is defined herein below), the
Executive agrees to serve as President and Chief Executive Officer of the
Company, and to be responsible for the typical management responsibilities
expected of an officer holding such position(s) and such other responsibilities
as may be assigned to Executive from time to time by the Board of Directors of
the Company (in each case consistent with past practice).
SECTION III
TERMS AND DUTIES
A. Period of Employment.
The period of Executive's employment under this Agreement will commence as
of the date of this Agreement and shall continue through August 1, 2006
("Initial Term"), subject to extension or termination as provided in this
Agreement ("Period of Employment"). On each anniversary of the commencement of
the Period of Employment, the period of Executive's employment shall be
automatically extended for additional one (1) year periods, unless either party
gives notice thirty (30) days in advance of such anniversary date of such
party's intent not to extend the Period of Employment.
B. Duties.
During the Period of Employment, the Executive shall devote substantially
all of his business time, attention and skill to the business and affairs of the
Company. The Executive will perform faithfully the duties which may be assigned
to him from time to time by the Board of Directors of the Company, consistent
with Section II above.
SECTION IV
COMPENSATION; BENEFITS
For all services rendered by the Executive in any capacity during the
Period of Employment, the Executive shall be compensated as follows:
A. Base Salary. The Company shall pay the Executive an annual base salary
("Base Salary") in the amount Five Hundred Fifty Thousand Dollars ($550,000).
The Base Salary shall be payable according to the customary payroll practices of
the Company, but in no event less frequently than once each month. The Base
Salary shall be reviewed each fiscal year and shall be subject to increase
according to the policies and practices adopted by the Company from time to
time. For the purposes of this Agreement, "Base Salary" shall mean the amount
set above and, to the extent it is subsequently increased, such increased
amount.
B. Annual Incentive Award. The Company will pay an annual incentive
compensation award or bonus ("Annual Incentive Award") to the Executive in
accordance with the Company's bonus plan or program providing benefits
substantially similar to bonus plans as may be adopted from time to time by the
Company.
C. Additional Benefits. The Executive will be entitled to participate in
all employee benefit plans or programs and receive all benefits and perquisites
for which senior executives of the Company are eligible under any existing or
future plan or program established by the Company for senior executives. The
Executive will participate to the extent permissible under the terms and
provisions of such plans or programs in accordance with program provisions.
These may include, among others, group hospitalization, health, dental care,
vision, life or other insurance plans, auto allowance, profit sharing plans,
401(k) plans or other retirement plans, sick leave plans, travel or accident
insurance, disability insurance, stock purchase programs and stock option or
other long-term incentive plans. Nothing in this Agreement will preclude the
Company from amending or terminating any of the plans or programs applicable to
salaried or senior executives as long as such amendment or termination is
applicable to all salaried employees or senior executives. The Executive will be
entitled to annual paid vacation as established by the Company and consistent
with past practices.
SECTION V
BUSINESS
The Company will reimburse the Executive for all reasonable travel,
accommodations and other expenses incurred by the Executive in connection with
the performance of his duties and obligations under this Agreement.
SECTION VI
DISABILITY
A. In the event the Executive becomes disabled during the Period of
Employment to an extent which entitles him to benefits under the Company's
long-term disability benefit plan
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applicable to senior executive officers generally as in effect from time to
time, Executive's employment shall terminate automatically and Executive shall
be entitled to receive amounts payable pursuant to the terms of a long-term
disability insurance policy or similar arrangement which the Company maintains
during the Period of Employment. In this case, normal compensation will cease
except for (i) earned but unpaid Base Salary, (ii) the greater of (a) the target
Annual Incentive Award, or (b) the Annual Incentive Award actually earned, and
(iii) any other earned but unpaid incentive plan awards, all payable on a
prorated basis for the year in which the disability occurred.
B. During the period the Executive is receiving payments of either regular
compensation or disability insurance described in this Agreement and as long as
he is physically and mentally able to do so, the Executive will furnish
information and assistance to the Company and from time to time will make
himself available to the Company to undertake assignments consistent with his
prior position with the Company and his physical and mental health. If the
Company fails to make a payment or provide a benefit required as part of the
Agreement, the Executive's obligation to fulfill information and assistance will
end.
C. The term "disability" will have the same meaning as under any long-term
disability insurance provided pursuant to this Agreement or otherwise.
SECTION VII
DEATH
In the event of the death of the Executive during the Period of Employment,
the Company's obligation to make Base Salary and bonus payments under this
Agreement shall cease as of the date of death, except for: (i) earned but unpaid
Base Salary, (ii) the greater of (a) the target Annual Incentive Award, or (b)
the Annual Incentive Award actually earned, and (iii) any other earned but
unpaid incentive plan awards, all payable on a prorated basis for the year in
which the Executive's death occurred.
SECTION VIII
TERMINATION AND EFFECT OF TERMINATION OF EMPLOYMENT
A. If the Executive's employment terminates due to a Without Cause
Termination (as such term is defined later in this Agreement), the Company shall
continue to pay to the Executive upon such termination for twenty-four (24)
months, on the first day of each month, the sum of (i) his monthly Base Salary,
plus (ii) an amount equal to one-twelfth (1/12) of the lesser of (a) the three
year average of Annual Incentive Awards that Executive received during the
Company's immediately preceding three fiscal years, or (b) the target Annual
Incentive Award for the fiscal year in which the termination occurs, though in
no case shall the total Base Salary and Annual Incentive Award paid to Executive
equal less than one hundred twenty-five per cent (125%) of Executive's Base
Salary. Earned but unpaid Base Salary and unreimbursed expenses and unpaid
Annual Incentive Award through the date of termination will also be paid in a
lump sum within thirty (30) days of such the termination. In addition, the
Company shall continue to provide for a period of twenty-four (24) months all
welfare benefits customarily provided to Company executives, including group
hospitalization, healthcare insurance, dental care, vision, life insurance and
disability insurance ("Welfare Benefits") and shall provide outplacement
assistance of up to $25,000. [In addition, if Executive's employment terminates
due to a Without Cause Termination, all unvested
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options held by Executive on the date of termination shall vest as of such date
and Executive shall have the right to exercise all vested options during the
one-year period following termination.]
B. If the Executive's employment terminates due to a Termination for Cause
any earned but unpaid Base Salary and unreimbursed expenses through the date of
termination will be paid in a lump sum to Executive. No other payments will be
made by the Company.
C. If the Executive's employment terminates due to a voluntary termination
by Executive (but not Constructive Discharge) any earned but unpaid Base Salary
and unreimbursed expenses through the date of termination, earned but unpaid
Annual Incentive Award through the date of termination, and any other incentive
plan awards earned will all be paid in a lump sum to Executive and shall be paid
within thirty days of the termination. No other payments will be made by the
Company.
D. Upon termination of the Executive's employment, the Period of Employment
will cease as of the date of the termination and all benefits other than as
specifically provided herein or in other agreements between the Executive and
the Company, shall terminate on such date.
E. The Company may terminate the Executive by complying with either the
"Termination for Cause" or "Without Cause Termination" as defined below.
Executive may terminate this Agreement at any time by providing thirty (30) days
prior written notice to the Company of a voluntary termination, a termination in
accordance with Section XI herein, or a "Constructive Discharge" as defined
below:
1. A "Termination for Cause" means termination of the Executive's
employment by the Company, acting in good faith, by written notice to the
Executive specifying the events relied upon, as a result of (a) Executive's
embezzlement, intentional mishandling of Company funds, or theft or fraud with
respect to the business or affairs of the Company, (b) Executive's conviction of
a felony or other crime involving moral turpitude which adversely affects the
Executive's job-related responsibilities, (c) a violation by Executive of the
covenants set forth in Section IX of this Agreement, or (d) following written
notice by the Company, the Executive's deliberate and willful continuing refusal
to substantially perform the duties and obligations of his position. The Company
must provide such notice thirty (30) days prior to termination. For purposes of
this definition, no act, or failure to act, on the Executive's part will be
considered "willful" unless it is done, or omitted to be done, by the Executive
in bad faith and without reasonable belief that the Executive's action or
omission was in the best interest of the Company.
2. A "Without Cause Termination" means (i) a termination of the
Executive's employment by the Company other than a Termination for Cause or
other than a termination due to death or disability; (ii) a Constructive
Discharge; or (iii) the failure of the Company to renew this Agreement under
Section IIIA.
3. A "Constructive Discharge" means termination of the Executive's
employment by the Executive due to a failure of the Company to fulfill its
obligations under this Agreement in any material respect, including without
limitation (i) any reduction of the Executive's Base Salary or any reduction in
Executive's Annual Incentive Award target or any other Company incentive plan
target (except that the target may be reduced up to twenty-five per cent if it
is reduced
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by the same percentage for all other similarly situated executive officers),
(ii) a substantial reduction of benefits (other than a reduction in benefits
applicable to all employees), or (iii) the reduction in the title, authority,
and/or duties of the Executive other than isolated, insubstantial or inadvertent
action that is remedied by the Company following written notice by the
Executive. The Executive will provide the Company a written notice which
describes the circumstances being relied on for the termination with respect to
the Agreement within thirty (30) days after the event giving rise to the notice.
The Company will have thirty (30) days to remedy the situation prior to the
termination for Constructive Discharge.
F. Executive shall not be required to offset against amounts due from the
Company under this Section for any salary, bonus or other benefits (other than
the Welfare Benefits) received by Executive from a third-party, and Executive
shall be under no duty to mitigate by seeking or accepting another position.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE DURING
AND AFTER THE PERIOD OF EMPLOYMENT
A. The Executive will, with reasonable notice during or after the Period of
Employment, furnish information as is 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 Executive recognizes and acknowledges that all proprietary
information pertaining to the affairs, business, clients, customers or other
relationships of the Company, as hereinafter defined, is confidential and is a
unique and valuable asset of the Company. Access to and knowledge of this
proprietary information are essential to the performance of the Executive's
duties under this Agreement. The Executive will not during the Period of
Employment 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. The Executive 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. The Executive will also use his reasonable best efforts to prevent the
disclosure of this information by others. All records, memoranda, and documents
of any kind relating to the business of the Company whether made by the
Executive or otherwise coming into his possession in the course of his
employment are confidential and will remain the property of the Company.
C. During the Period of Employment and for a twelve (12) month period
thereafter, the Executive 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. During the
Period of Employment and, in the case of (i) through (iii) below, for a twelve
(12) month period, and in the case of (iv) through (vi) below, for a twenty four
(24) month period, following termination of employment, the Executive will not,
directly or indirectly, either as an individual for his own account or as a
consultant, partner, joint venturer, employee, agent, officer, director,
shareholder or member: (i) make any statements or perform any acts intended to
advance the interest of any existing or prospective competitors of the Company;
(ii) own or hold any
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proprietary interest in or be employed by, consult with or receive compensation
from, any party engaged in the same or any similar business as the Company as of
the date of termination, in the United States and other areas where the Company
conducts its business; (iii) solicit any members of the then current clients,
customers or landlords of the Company as of the date of termination or discuss
with any employee or consultant of the Company as of the date of termination
information or operation of any business intended to compete with the Company;
(iv) solicit or attempt to solicit any clients, customers or landlords of the
Company existing on the date of 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 the Company or its affiliates, or encourage or
attempt to encourage any such clients, customers or landlords to not continue or
otherwise modify adversely its business relationship with the Company; (v) enter
into any lease, sublease, license agreement, service 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
the Company or its affiliates on the date of Executive's termination; or (vi)
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 the Company's or its affiliates employees or consultants.
For purposes of this Section IX, "Company" shall include any of the Company's
subsidiaries, joint ventures, partnerships or affiliates, to the extent that the
Company has an interest of 50% or greater in such entities. 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 equity interest in a
publicly-held company. The Executive acknowledges that the covenants contained
herein are reasonable as to geographic and temporal scope and the sufficiency of
the consideration for such covenants.
D. The Executive acknowledges that his breach or threatened or attempted
breach of any provision of Section IX would cause irreparable harm to the
Company not compensable in monetary damages and that the Company shall be
entitled, in addition to all other applicable remedies, to a temporary and
permanent injunction and a decree for specific performance of the terms of
Section IX without being required to prove damages or furnish any bond or other
security. If any provision of this Section IX or any other section of this
Agreement is held to be invalid by a court of competent jurisdiction, then such
provision shall be severed from this Agreement, and such invalidity shall not
affect any other provision of this Agreement, the balance of which shall remain
in full force and effect. In the event that any provision of this Section IX
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. In the event of the material
breach by Executive of a provision of this Section IX, which remains uncured
after thirty days' notice to Executive, the Company shall be entitled to cease
all payments of severance and the provision of benefits to Executive.
SECTION X
INDEMNIFICATION
The Company will indemnify the Executive to the fullest extent permitted by
the laws of the state of Tennessee in effect at that time, or charter and bylaws
of the Company whichever affords the greater protection to the Executive.
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SECTION XI
CHANGE IN CONTROL
A. In the event there is a Change in Control (as such term is defined
below) and within the twenty four (24) month period following such event
Executive terminates his employment for "Good Reason," as defined below, or is
terminated due to a Without Cause Termination, the Company shall in a lump sum
pay on the date of termination to the Executive the sum of (i) three times his
Base Salary, plus (ii) an amount equal to three times the Executive's target
Annual Incentive Award that Executive was to receive during the Company's fiscal
year in which the Change in Control took place, plus (iii) a continuation of
Welfare Benefits and other perquisites of employment (including payment on the
date of termination of the Company portion of 401k contributions that would have
been made over the subsequent three years based on the Executive's compensation
and Company contribution rate in effect prior to the Change in Control) for a
period of three years following the termination, plus (iv) up to $25,000 in
outplacement assistance, plus (v) an amount equal to the greater of (i) the
target Annual Incentive Award, or (ii) actual earned Annual Incentive Award,
calculated on a pro-rated basis for the period commencing on the Change in
Control for a termination in the same fiscal year in which the Change in Control
occurs and commencing with the beginning of the fiscal year in which the
termination occurs for a termination following a fiscal year in which there is a
Change in Control and ending on the date of termination. Further, in the event
of a Change in Control followed by a termination as described above, the Company
shall pay to Executive in a lump sum upon the Change in Control an amount equal
to the greater of (i) the target Annual Incentive Award calculated on a
pro-rated basis for the fiscal year in which the Change in Control occurs and
ending on the date of the Change in Control, or (ii) the actual earned Annual
Incentive Award calculated for the fiscal year in which the Change in Control
occurs and ending on the date of the Change in Control. In addition, in the
event there is a Change in Control, (i) all unvested deferred stock units, (ii)
all unvested stock options other than Special Options, as is hereafter defined,
(iii) all vested but currently unexercisable special options granted on February
6, 2002 (the "Special Options"), (iv) all unvested Special Options with an
accelerated vesting target price or exercise price equal to or less than the
price per share established for the Company stock in the Change in Control
transaction, shall immediately vest and become exercisable upon the Change in
Control.
B. For purposes of this Agreement, "Change in Control" shall mean the first
to occur of the following events: (i) the consummation of a plan of liquidation
with respect to the Company; (ii) the sale or other divestiture of all or
substantially all of the assets (excluding the sale of assets in the ordinary
course of business or sale and lease back and other transactions that are
primarily a financing transaction for the Company or related to an acquisition
by an employee benefit plan of the Company) of the Company, including the sale
of its direct or indirect majority-owned subsidiaries; (iii) the acquisition by
any person or affiliated group of persons as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended (the "1934 Act") of thirty per cent
(30%) or more of the outstanding voting power of the Company so that such person
or affiliated group shall become the beneficial owner, as defined in Rule 13d-3
of the 1934 Act, directly or indirectly, of such voting power of the Company
other than acquisitions by the Company, a subsidiary of the Company, an employee
benefit plan of the Company, or Monroe J. Carell, Jr. or his family members or
any entity owned directly or indirectly by Mr. Carell or his family members or
his or their estates; (iv) the consummation of a consolidation or merger of the
Company with another entity, or the
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reorganization of the Company, unless (a) the consummation of such
consolidation, merger, or reorganization would result in the stockholders of the
Company immediately before such consolidation or merger owning, in the
aggregate, more than seventy percent (70%) of the outstanding voting power of
the surviving entity immediately after such consolidation, merger or
reorganization; (b) the individuals who, as of the date hereof, constitute the
Board of the Company (the "Incumbent Board") continue to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person or group other
than the Board; and (c) following the consummation of a consolidation or merger
or reorganization, no person or affiliated group of persons as defined in 1934
Act owns thirty percent (30%) or more (other than Mr. Carell or his family
members or any entity owned directly or indirectly by Mr. Carell or his family
members or his or their estates) of the outstanding voting power of the Company;
or (v) the members of the Incumbent Board cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person or group other
than the Board.
C. Notwithstanding anything to the contrary herein, Executive shall not be
entitled to receive benefits under both Sections VIII and XI.
D. Any dispute related to the benefits to be paid under this Section shall
be governed by the arbitration provisions of Section XVI.
E. "Good Reason" means the occurrence after a Change in Control of any of
the events or conditions described in clauses (1) through (7) hereof:
1. any (i) change in the Executive's status, title, position or
responsibilities which, in the Executive's reasonable judgment, represents an
adverse change from the Executive's status, title, position or responsibilities
as in effect at any time within 180 days preceding the date of the Change in
Control or at any time thereafter, (ii) assignment to the Executive of duties or
responsibilities which, in the Executive's reasonable judgment, are inconsistent
with the Executive's status, title, position or responsibilities as in effect at
any time within 180 days preceding the date of the Change in Control or at any
time thereafter, or (iii) removal of the Executive from or failure to reappoint
or reelect the Executive to any of such offices or positions, in each case
except in connection with the termination by the Company of the Executive's
employment for death, disability, or Termination for Cause;
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2. a reduction in the Executive's Base Salary or Annual Incentive
Award opportunity (a reduction in Executive's target Annual Incentive Award);
the actual payment of less than 75% of the greater of (i) Executive's target
Annual Incentive Award; or (ii) the average of the three prior Annual Incentive
Awards earned by Executive (or, to the extent Executive has not been employed
for three full fiscal years, the average of the actually completed fiscal
years); or a reduction in target awards under any other incentive plan(s)); or
any failure to pay the Executive any compensation or benefits to which the
Executive is entitled within ten (10) days after the date when due;
3. the imposition of a requirement that the Executive be based at any
place outside a 50-mile radius of the Company's current principal office, except
for reasonably required travel on Company business which is not materially
greater in frequency or duration than prior to the Change in Control;
4. the failure by the Company to (i) continue in effect (without
reduction in benefit level or reward opportunities) any material compensation or
employee benefit plan in which the Executive was participating at any time
within 180 days preceding the date of the Change in Control or at any time
thereafter, unless such plan is replaced with a plan that provides substantially
equivalent compensation or benefits to the Executive or (ii) provide the
Executive with compensation and benefits, in the aggregate, at least equal (in
terms of benefit levels and reward opportunities) to those provided for under
each other employee benefit plan, program and practice in which the Executive
was participating at any time within 180 days preceding the date of the Change
in Control or at any time thereafter;
5. the insolvency or the filing (by any party, including the Company)
of a petition for bankruptcy with respect to the Company, which petition is not
dismissed within sixty (60) days;
6. any material breach by the Company of any provision of this
Agreement; or
7. any purported Termination for Cause of the Executive's employment
by the Company which does not comply with the terms of this Agreement.
Any event or condition described in clauses (1) through (7), or a Without
Cause Termination, that occurs prior to a Change in Control but which the
Executive reasonably demonstrates (a) was at the request or direction of a
person (or group) who indicated the intention to, or took takes steps reasonably
calculated to, effect a Change in Control and who subsequently effects a Change
in Control, or (b) otherwise arose in connection with, or in anticipation of, a
Change in Control which subsequently occurs, will constitute Good Reason for
purposes of this Agreement notwithstanding that it occurred prior to the Change
in Control.
F. Notwithstanding anything herein to the contrary, in the event a Without
Cause Termination occurs following a Change in Control or a termination for Good
Reason occurs, Executive shall not be bound by the provisions of Section IX
following termination of Executive's employment.
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G. If the Internal Revenue Service asserts, or if Executive or the Company
is advised in writing by an accounting firm of regional standing, that any
payment in the nature of compensation to, or for the benefit of, Executive from
the Company (or any successor in interest) constitutes an "excess parachute
payment" under section 280G of the Internal Revenue Code, whether paid pursuant
to this Agreement or any other agreement, and including property transfers
pursuant to securities and other employee benefits that vest upon a change in
the ownership of effective control of the Company (collectively, the "Excess
Parachute Payments") the Company shall pay to Executive, on demand, a cash sum
sufficient (on a grossed-up basis) to indemnify Executive and hold him harmless
from the following (the "Tax Indemnity Payment"):
1. The amount of excise tax under section 4999 of the Internal Revenue
Code on the entire amount of the Excess Parachute Payments and all Tax Indemnity
Payments to Executive pursuant to this Section:
2. The amount of all local, state, and federal income and FICA taxes
on all Tax Indemnity Payments to Executive pursuant to this Section (determined
in each case at the highest marginal tax rate);
3. The amount of any fines, penalties, and interest that have been or
potentially will be, assessed in respect of any excise or income tax described
in the preceding clauses (1) or (2) so that the amounts of Excess Parachute
Payments received by Executive will not be diminished by an excise tax imposed
under section 4999 of the Internal Revenue Code or by any local, state, or
federal income tax or FICA tax or fines, penalties or interest payable in
respect of the Tax Indemnity Payments received by Executive pursuant to this
Section.
H. Executive shall not be required to offset against amounts due from the
Company under this Section for any salary, bonus or other benefits (other than
the welfare benefits) received by Executive from a third-party, and Executive
shall be under no duty to mitigate by seeking or accepting another position.
SECTION XII
WITHHOLDING TAXES
The Company may directly or indirectly withhold from any payments under
this Agreement all federal, state, city or other taxes that shall be required
pursuant to any law or governmental regulation.
SECTION XIII
EFFECTIVE PRIOR AGREEMENTS
This Agreement contains the entire understanding between the Company and
the Executive with respect to the subject matter herein and supersedes any prior
agreement of any kind (other than those written option agreements previously
entered into between the Company and Executive which will remain in force and
effect), including any other employment or severance agreements between the
Company, its affiliates and the Executive.
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SECTION XIV
CONSOLIDATION, MERGER OR SALE OF ASSETS; COOPERATION IN CONNECTION
WITH CHANGE IN CONTROL TRANSACTION
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 entity that 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 entity and this Agreement
shall continue in full force and effect. In the event that the Company is
involved in a transaction that if consummated would constitute a Change in
Control, the Executive agrees to use his good faith efforts consistent with his
duties as a director, officer or employee to cooperate with the Company, and as
directed by the board of directors, the potential acquirer, in the due diligence
process related thereto. In the event that there is a Change in Control and the
Executive thereafter terminates his employment for "Good Reason" or voluntarily
resigns, the Executive agrees to remain with the Company for a period of time
after the date of such termination or resignation as requested by the Company or
its acquirer, not to exceed three (3) months from the date of such termination
or resignation, provided that the Company has paid to Executive all amounts due
to him in connection with such termination or resignation, together with an
additional amount equal to three months Base Salary and pro rated Annual
Incentive Award together with all employment benefits and perquisites
("Transition Payment"). In the event that the Company or acquirer does not
request Executive to remain after Executive's termination for Good Reason or
resignation, then the Company shall pay Executive the Transition Payment in a
lump sum upon his departure.
SECTION XV
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.
SECTION XVI
GOVERNING LAW; ARBITRATION
This Agreement has been executed and delivered in the State of Tennessee
and its validity, interpretation, performance and enforcement shall be governed
by the laws of that state, without regard to conflict of law doctrines.
Executive and the Company unconditionally submit to the jurisdiction of the
courts of the State of Tennessee with respect to all matters relating to or
arising from this Agreement, except to the extent that an issue is subject to
arbitration as provided herein. The parties hereby agree that the prevailing
party's attorneys' fees and costs will be paid by the other party.
Any dispute among the parties hereto shall be settled by final and binding
arbitration in Nashville, Tennessee, in accordance with the rules of the
American Arbitration Association and judgment upon the award rendered may be
entered in any court having jurisdiction thereof, except that Company shall not
be required to submit to arbitration the matters under Section IX.
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SECTION XVII
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, XX
00000, Attention: Executive Chairman, or at such other address as may have been
furnished to the Executive by the Company in writing; or
(b) If to the Executive, at: 000 Xxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, or such other address as may have been furnished to the Company by the
Executive in writing.
SECTION XVIII
BINDING AGREEMENT
This Agreement shall be binding on the parties' successors, heirs and
assigns.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
CENTRAL PARKING CORPORATION
By:
------------------------------------
Xxxxx Xxxxxx
Chairman, Compensation Committee of
the Board of Directors
EXECUTIVE:
----------------------------------------
Xxxxxxx X. Xxxx
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