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CONFIDENTIALITY AND NONCOMPETE AGREEMENT
This Confidentiality and Noncompete Agreement is entered into as of
the ______ day of ____________, 199__, between ___________________
("Shareholder"), and Central Parking Corporation, a Tennessee corporation
("Purchaser") and ________________, a New York corporation (the "Surviving
Corporation").
WHEREAS, Purchaser, Square Industries, Inc., a New York corporation
(the "Company"), and Central Parking System -- Empire State, Inc., a New York
corporation and a wholly-owned subsidiary of the Purchaser ("Merger Sub")
entered into an Agreement and Plan of Merger (the "Merger Agreement"), dated
as of December 6, 1996 pursuant to which Company will merge with and into
Merger Sub with Company surviving as a wholly owned subsidiary of Purchaser;
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements made herein and in the Merger Agreement, the Offer Price, the Merger
Consideration and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound thereby, agree as follows:
1. Non-Compete.
(a) Shareholder recognizes and acknowledges that all
information pertaining to the parking ownership and management business of the
Company, Purchaser and Surviving Corporation (the "Business") and the related
affairs, clients, customers or other relationships of Company, Purchaser and
Surviving Corporation that is not generally known to the real estate or parking
industries or to the public generally is confidential and is a unique and
valuable asset of Purchaser and Surviving Corporation. Access to and knowledge
of this information were and are essential to the performance of Surviving
Corporation's operation. Shareholder will not give to any person, firm,
association, or governmental agency any information concerning the affairs,
business, clients, customers or other relationships of Purchaser, Company or
Surviving Corporation except as required by law. Shareholder will not make use
of this type of information for its own purposes or for the benefit of any
person or organization other than Surviving Corporation. Shareholder shall use
its best efforts to prevent the disclosure of this information by others. All
records, memoranda, etc. relating to the Business which is deemed confidential
hereunder whether made by Company, Shareholder or otherwise coming into its
possession will remain the property of Surviving Corporation.
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(b) Shareholder hereby covenants and agrees with
Purchaser and Surviving Corporation that, during the "NONCOMPETE PERIOD" and
within the "NONCOMPETE AREA," it shall not directly or indirectly: (i) acquire,
lease, manage, consult for, serve as agent or subcontractor for, finance,
invest in, own any part of or exercise management control over any parking
business or business that provides any services competitive with the services
provided by the Business; (ii) solicit for employment or employ any nonclerical
person who at Closing or thereafter became an employee of Purchaser or
Surviving Corporation unless such person is no longer employed by Purchaser or
Surviving Corporation for at least six (6) months; or (iii) with respect to any
customer, supplier or property owner with whom Purchaser or Surviving
Corporation contracts in connection with the Business, either solicit the same
in a manner that reasonably could adversely affect Purchaser or Surviving
Corporation, or make statements to the same that disparage Purchaser or
Surviving Corporation or its operations in any way. The "NONCOMPETE PERIOD"
shall commence at Closing and terminate on the fifth anniversary thereof. The
"NONCOMPETE AREA" shall mean a fifty (50) mile radius of each location from
which the Business of Company is operated as of Closing. Ownership of less
than five percent (5%) of the stock of a publicly-held company shall not be
deemed a breach of this covenant. Provided; however, nothing in the Agreement
shall prohibit Shareholder from engaging in the activities disclosed on Exhibit
1 attached hereto.
(c) In the event Purchaser or Surviving Corporation
materially breaches that certain Consultancy Agreement dated ____________,
199__, between Purchaser and Shareholder, then paragraph 1(b) of this Agreement
shall terminate and be of no further force and effect. [THIS PROVISION WOULD BE
IN LOWELL'S AND XXXXXXX'X AGREEMENTS ONLY]
2. Enforcement.
(a) Shareholder acknowledges that its breach or
threatened or attempted breach of any provision of Section 1 would cause
irreparable harm to Purchaser or Surviving Corporation not compensable in
monetary damages and that Purchaser and Surviving Corporation 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 1. Nothing herein contained shall be construed as prohibiting
Purchaser or Surviving Corporation from pursuing any other remedy available to
it for such breach or threatened breach.
(b) All parties hereto acknowledge the necessity of
protection against the competition of Shareholder and that the nature and scope
of such protection as been carefully considered by the parties. The period
provided and area covered are expressly acknowledged and agreed to be fair,
reasonable and necessary. In the event any covenant contained in Section 1 is
held to be invalid, illegal or unenforceable because of the duration of such
covenant, the geographic area covered thereby or otherwise, the parties agree
that the court making such determination shall have the power to reduce the
duration, the area and/or other provision(s) of any such covenant to the
maximum permissible and to include
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as much of its nature and scope as will render it enforceable, and, in its
reduced form said covenant shall be valid, legal and enforceable.
3. No Agency. Shareholder shall have no right, authority or
power to act for or on behalf of Surviving Corporation.
4. General Assistance. Shareholders will furnish information as
may be in its possession and cooperate with Surviving Corporation as may be
requested in connection with any claims or legal actions in which Surviving
Corporation is or may become a party.
5. Assignment; Successors and Assigns. The obligations of
Shareholder hereunder are personal in nature and are not assignable or
delegable by it. Any prohibited assignment or delegation will be null and
void. Purchaser or Surviving Corporation may assign and delegate this
Agreement to a successor of substantially all of its business assets or to a
party involved in the parking industry. The provisions hereof shall inure to
the benefit of and be binding upon the permitted successors and assigns of the
parties hereto.
6. Governing Law. This Agreement shall be interpreted under,
subject to and governed by the substantive laws of the State of Tennessee, and
all questions concerning its validity, construction, and administration shall
be determined in accordance thereby.
7. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts, each of which shall be deemed an original but
all of which shall together constitute one and the same instrument.
8. Invalidity. The invalidity or unenforceability of any
provision of this Agreement shall not affect any other provision hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision was omitted. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision there shall be added automatically as a
part of this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and be legal, valid and
enforceable.
9. Exclusiveness. [SUBJECT TO PROVISION OF SECTION 1(C),] this
Agreement constitutes the entire understanding and agreement between the
parties with respect to the subject matter hereof and supersedes any and all
other agreements, oral or written, between the parties. [BOLD LANGUAGE FOR
LOWELL'S AND XXXXXXX'X AGREEMENTS ONLY]
10. Modification; Waiver. 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
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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.
11. Arbitration. Any dispute among the parties hereto shall be
settled by binding arbitration in Nashville, Tennessee in accordance with the
then effective rules of the American Arbitration Association, and judgment upon
the award rendered may be entered in any court having jurisdiction thereof. In
any action or proceeding brought to enforce any provision of this Agreement,
the prevailing party shall be entitled to recover its costs from the opposing
party, including reasonable legal fees and expenses.
12. 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 Purchaser or Surviving Corporation, x/x Xxxxxxx
Xxxxxxx, Xxxxxxx Parking Corporation at 0000 00xx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, Attention: Chairman, or at such other address as may
have been furnished to Shareholder by Purchaser or Surviving Corporation in
writing; or
(b) If to Shareholder, at ______________________________
or such other address as may have been furnished to Purchaser or Surviving
Corporation by Shareholder in writing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
CENTRAL PARKING CORPORATION
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By:
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Title:
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EXHIBIT 1
EXCLUSIONS FROM NONCOMPETE AGREEMENT
1. Shareholder may acquire, own and lease real estate
used in the Business in the Noncompete Area, provided that
Central Parking Corporation is offered right of first refusal
to operate or manage parking located thereon unless the real
estate is subject to an existing agreement at the time of the
acquisition, in which case, Central Parking Corporation's
right of first refusal will be delayed until the termination
of such existing agreement
2. Shareholder may broker real estate located in the
Noncompete Area, provided Central Parking Corporation is
offered right of first refusal to manage parking located
thereon unless the real estate is subject to an existing
agreement at the time of the acquisition, in which case,
Central Parking Corporation's right of first refusal will be
delayed until the termination of such existing agreement
3. Shareholder may continue to own and lease real estate
currently owned or leased by Shareholder within the Noncompete
Area with parking operations, provided that Central Parking
Corporation is offered right of first refusal to operate or
manage parking located thereon. The parties acknowledge that
the currently owned properties consist of the following:
Location City/State
000 X. 00xx Xxxxxx Xxx Xxxx/XX
000 Xxx Xxxxxx Xxxxxx City/NJ
000 Xxxxxxx Xxxxxx Xxxx,/XX
000 Xxxxxxxxxx Xxxxxx Xxxxxx/ XX
000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxxxxx/XX
20th and Market Street Philadelphia/PA
For purposes of this Confidentiality and Noncompete Agreement, Central Parking
shall notify Shareholder of its intention to exercise its right of first
refusal as provided in paragraphs 1, 2 or 3 above within fifteen (15) business
days of its receipt of notice of such right.
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