EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT executed as of May 31, 2001 by and between
CENTRAL PARKING CORPORATION, a Tennessee corporation (the "Company"), and XXXXX
X. XXXX, an individual residing in Nashville, Tennessee, (the "Executive").
In consideration of the mutual covenants contained in this Agreement, the
parties hereby agree as follows:
SECTION I
EMPLOYMENT
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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
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During the Period of Employment (as such term is defined herein below), the
Executive agrees to serve as President and Chief Operating Officer of the
Company, and to be the typical management responsibilities expected of an
officer holding such positions and such other responsibilities as may be
assigned to Executive from time to time by the Chief Executive Officer of the
Company (in each case consistent with past practice).
SECTION III
TERMS AND DUTIES
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A. Period of Employment.
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The period of Executive's employment under this Agreement will commence as of
January 1,2001, and shall continue through December 31,2003 ("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 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.
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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 Chief Executive Officer of the Company,
consistent with Section II above.
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SECTION IV
COMPENSATION: BENEFITS
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For all services rendered by the Executive in any capacity during the
Period of Employrnent, the Executive shall be compensated as follows:
A. Base Salary. The Company shall pay the Executive an annual base
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salary ("Base Salary") in the amount of Four Hundred Fifty Thousand Dollars
($450,000). 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 period and shall be subject to
increase according to the policies and practices adopted by the Company from
time to time.
B. Annual Incentive Award. 1. The Company will pay an annual
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incentive compensation award or bonus ("Annual Incentive Award") to the
Executive consistent with the Company's EPS Compensation Program for Senior
Executives or such other bonus plan (providing benefits substantially similar to
bonus plans for other Senior Executives) as may be adopted from time to time by
the Company. Executive may elect to draw, in advance, a portion of this Annual
Incentive Award, agreed upon by the Company through the course of Company's
fiscal year. Should such advance draw exceed the amount actually due Executive
for the relevant period covered by this Agreement, Executive agrees to promptly
repay the overdraw upon notification by the Company.
2. It is Company's policy that Annual Incentive Awards will not be paid
to an executive during a job change transition period, if any. Therefore, in
reference to Executive's position, if Executive is leaving his position and is
to continue working for the Company in a similar position or is promoted, then
Executive will continue to be paid the Annual Incentive Award until he has left
his current position, and any incoming executive will not begin to earn an
Annual Incentive Award until the date of Executive's departure. If Executive is
leaving his position due to resignation, retirement or removal, then the
incoming executive will be eligible to earn the Annual Incentive Award from the
time he or she commences work and Executive will not be paid any Annual
Incentive Award attributable to the transition period.
C. Additional Benefits. The Executive will be entitled to participate
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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 and profit sharing plans, sick
leave plans, travel or accident insurance, disability insurance, stock purchase
programs and stock option 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 an annual paid vacation as established by the Board of Directors of
the Company.
SECTION V
BUSINESS
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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
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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 applicable to senior executive officers
generally as in effect on the date hereof, Executive's employment shall
tern1inate 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 earned but unpaid Base
Salary and Annual Incentive Awards which would be 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
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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 earned but unpaid Base Salary
and Annual Incentive Award which will be paid on a prorated basis for that year.
SECTION VIII
EFFECT OF TERMINATION OF EMPLOYMENT
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A. If the Executive's employment terminates due to either a Without Cause
Termination or a Constructive Discharge (as such terms are defined later in this
Agreement), the Company shall continue to pay to the Executive upon such
termination for 24 months, the sum of (i) his monthly Base Salary, plus (ii) an
amount equal to one-twelfth (1/12) of the Annual Incentive Award that Executive
received during the Company's immediately preceding fiscal year. Earned but
unpaid Base Salary and unreimbursed expenses through the date of termination
will also be paid in a lump sum at such time and earned but unpaid Annual
Incentive Award through the date of termination shall be paid at the time the
Company pays such awards to its executive officers.
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 disability (subject to
Section VI above) or voluntary termination by Executive (but not Constructive
Discharge) any earned but unpaid Base Salary and unreimbursed expenses through
the date of termination will be paid in a lump sum to Executive and earned but
unpaid Annual Incentive Award through the date of termination shall be paid at
the time the Company pays such awards to its executive officers. 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, shall terminate on such date.
E. For this Agreement, the following terms have the following meanings:
1. "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
willful dishonesty, fraud, or misconduct with respect to the business or affairs
of the Company which is directly harmful to the Company, (b) Employee's
conviction of a felony or other crime involving moral turpitude or (c) a
violation by Executive of the covenants set forth in Section IX of this
Agreement. 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 done, or omitted to be
done, by the Executive not in good faith and without reasonable belief that the
Executive's action or omission was in the best interest of the Company.
2. "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 other than
reductions not to exceed fifteen percent (15%) applicable to all executive
officers of the Company or (ii) the reduction in the title and/or duties of 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.
3. "Without Cause Termination" means termination of the Executive's
employment by the Company other than due to death, disability, Termination for
Cause, Constructive Discharge, termination under Section XI, or failure of
Company to renew this Agreement under Section IlIA.
SECTION IX
OTHER DUTIES OF THE EXECUTIVE DURING
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AND AFTER THE PERIOD OF EMPLOYMENT
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A. The Executive will, with reasonable notice during or after the
Period of Employment, furnish information as may be 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, etc. 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, any period during which payments are
made to the Executive pursuant to Section VIII.A or Section XI.A of this
Agreement, 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 ofhis
relationship to the Company. In the event (x) Executive's employment is
terminated due to a Without Cause Termination or a Constructive Discharge, then
during the Period of Employment, any period during which payments are made to
the Executive pursuant to Section VIII.A or Section XI.A of this Agreement, and
for a twelve (12) month period following the later of such termination or period
during which payments are made; or (y) Executive's employment terminates for any
reason other than Without Cause Termination or Constructive Discharge, then
during the Period of Employment and, in the case of(i) and (ii) below, for a
twenty-four (24) month period, and in the case of (iii) and (iv) below, for a
thirty-six (36) month period, following such termination the Executive will not:
(i) within a 50-mile radius of each location of Company's operations as of the
date of termination, make any statements or perform any acts intended to advance
the interest of any existing or prospective competitors of the Company; (ii)
directly or indirectly own or hold any proprietary interest in or be employed by
or receive compensation from any party engaged in the same or any similar
business in the same geographic areas the Company does business as of the date
of termination; (iii) solicit any members of the then current clients of the
Company as of the date of termination or discuss with any employee of the
Company as of the date of termination information or operation of any business
intended to compete with the Company; and (vi) directly or indirectly hire any
employee of the Company as of the date of termination or solicit or encourage
any such employee to leave the employ of the Company. 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.
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.
SECTION X
INDEMNIFICA TION, LITIGATION
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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.
SECTION XI
CHANGE IN CONTROL
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A. In the event there is a Change in Control (as such term is defined
below) and within the eighteen (18) month period following such event Executive
terminates his employment for any reason, or is terminated due to a Without
Cause Termination, the Company shall in a lump sum pay to the Executive upon
such termination, the sum of (i) two times his Base Salary, plus (ii) an amount
equal to two times the Annual Incentive Award that Executive received during the
Company's immediately preceding fiscal year. All other benefits, other than as
required by law, shall terminate immediately upon such termination.
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) of the Company or of the Company and 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") (other than Monroe
Carell, Jr., members of the Carell family, related entities, affiliates, and
trusts or foundations created by or for any of the foregoing) of common stock 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 a
majority of the outstanding voting stock of the Company; (iv) the consummation
of a consolidation or merger of the Company with another corporation, unless the
consummation of such consolidation or merger would result in the stockholders of
the Company immediately before such consolidation or merger owning, in the
aggregate, more than fifty percent (50%) of the outstanding voting stock of the
surviving entity immediately after such consolidation or merger.
C. Notwithstanding anything to the contrary herein, Executive shall not
be entitled to receive benefits under both Sections VIII and XI.
SECTION XII
WITHHOLDING TAXES
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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
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This Agreement contains the entire understanding between the Company and the
Executive with respect to the subject matter and supersedes any prior employment
or severance agreements between the Company, its affiliates and the Executive.
Notwithstanding the foregoing, the parties acknowledge and agree that the
provisions set forth in (A) the Company's 1995 Nonqualified Stock Option Plan
and all previous grants to Executive arising out of such plan; and (B) that
certain Performance Unit Agreement by and between Executive and Company, dated
June 25, 1986, as amended by those certain Modifications of Performance Unit
Agreement by and between Executive and the Company dated October 10, 1995 and
May ___, 2001, are in full force and effect.
SECTION XIV
CONSOLIDATION, MERGER OR SALE OF ASSETS
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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 corporation which 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 corporation and
this Agreement shall continue in full force and effect.
SECTION XV
MODIFICATION
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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
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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.
Any dispute among the parties hereto shall be settled by 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.
SECTION XVII
NOTICES
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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: Chief Executive Officer, 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 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000 or such other address as may have been furnished to the Company by the
Executive in writing.
SECTION XVIII
BINDING AGREEMENT
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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: /s/ Monroe J. Carell, Jr.
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Monroe J. Carell, Jr.
Chairman of the Board
EXECUTIVE:
/s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
