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EMPLOYMENT CONTRACT
THIS AGREEMENT made and entered into effective this 28th day of February, 2001,
by and between CENTRAL PARKING SYSTEM, INC., a Tennessee corporation with its
principal place of business in Nashville, Tennessee ("EMPLOYER"), and William J.
Vareschi ("EXECUTIVE").
W I T N E S S E T H:
WHEREAS, EMPLOYER desires to induce EXECUTIVE to serve as an executive officer
of EMPLOYER;
WHEREAS, EXECUTIVE will have 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 Vice Chairman
and Chief Executive Officer.
(2) DUTIES. EXECUTIVE agrees to serve in such capacity, and to perform all
the duties required thereof.
(3) COMPENSATION. During the Term, EMPLOYER agrees to pay EXECUTIVE for
said services a base salary ("Base Salary") of $600,000 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, with a target
amount equal to 100% of Base Salary; provided that for the fiscal years
beginning October 1, 2000 and 2001, the Bonus shall not be less than $400,000
(the "Guaranteed Bonus") and provided further that such Bonus (including the
Guaranteed Bonus) for the fiscal year beginning October 1, 2000 shall be
prorated by a fraction, the numerator of which is the number of days from the
commencement of EXECUTIVE's employment through and including the end of the
current fiscal year and the denominator of which is 365. Bonus amounts in
excess of 120% of Base Salary and Bonus will be paid in the form of common stock
or Deferred Stock Units (as defined herein) at the election of EXECUTIVE.
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); provided, however, that EXECUTIVE shall be eligible to
participate in EMPLOYER's Deferred Stock Unit Plan upon commencement of
employment.
(5) STOCK OPTIONS. Upon the date of the announcement (the "Announcement
Date") of EXECUTIVE's appointment as Vice Chairman and Chief Executive Officer
of EMPLOYER, EXECUTIVE will receive a grant of 400,000 non-qualified options
(the "Stock Options") to purchase EMPLOYER's common stock under EMPLOYER's 1995
Incentive and Nonqualified Stock Option Plan for Key Personnel at an exercise
price equal to $20 per share. The Stock Options will vest ratably over 4 years
(25% per year) beginning on the commencement date of EXECUTIVE's employment and
will have a 10-year term from the date of grant. Upon retirement at age 65,
EXECUTIVE shall be eligible to exercise the vested and unexercised Stock Options
through the end of the ten-year term. In the event of EXECUTIVE's death or
disability, EXECUTIVE or his representative shall be eligible to exercise any
Stock Options vested on the date of EXECUTIVE's death or disability through the
end of the ten-year term and all options that are not vested on the date of
EXECUTIVE's death or disability shall be forfeited. In the event EXECUTIVE is
terminated without Cause (as defined herein), EXECUTIVE shall be credited with
two additional years of service towards vesting and EXECUTIVE shall have three
years following such termination to exercise Stock Options which are vested on
the termination date (subject to the ten-year term of such options). In the
case of resignation by EXECUTIVE, EXECUTIVE shall have 90 days following the
date of such resignation to exercise Stock Options which are vested and
unexercised on the date of termination; all Stock Options which are not vested
on the date of such resignation or termination shall be forfeited. In the event
EXECUTIVE is terminated for Cause, all unexercised options shall be forfeited
upon such termination.
(6) DEFERRED STOCK UNITS. Twenty-four (24) months following the
Commencement Date (the "Grant Date"), EXECUTIVE shall receive 200,000 Deferred
Stock Units ("DSUs"). EXECUTIVE must be employed on the Grant Date in order to
receive the DSUs. The DSUs shall be granted subject to the terms and conditions
set forth in Exhibit A to this Agreement.
(7) TERM. EXECUTIVE's employment under this Agreement shall commence on
April 2, 2001, and continue through September 30, 2003; provided, however, that
the Term shall be automatically renewed for a one-year period on October 1,
2003, 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 current Term that such
Term shall not be so renewed and that EXECUTIVE's employment shall be terminated
at the expiration of the then current Term. 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 equal to 30 days, with normal withholdings, as pay in lieu of notice.
Notwithstanding any of the foregoing, Sections 10, 11, 12, 13, 14 and 15 shall
survive the termination of this Agreement.
(8) 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.
(9) TERMINATION OF EMPLOYMENT.
9.1 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 current 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); and such termination occurs other than during the two-year period
following a Change in Control (as defined herein), 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 two years 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 two-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 10 or 11 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."
9.2 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.
.
9.3 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.
9.4 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.
9.5 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 9.5, 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 10 or 11 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.
9.5. Termination Without Cause or Resignation for Good Reason Following
a Change in Control. (a) In the event that EXECUTIVE's employment is
terminated within the two-year period following a Change in Control (as defined
below) (i) by EMPLOYER other than for Cause, including without limitation a
termination of this Agreement pursuant to a notice by EMPLOYER that the then
current Term will not be renewed, or (ii) by EXECUTIVE for Good Reason,
EXECUTIVE shall receive the following amounts:
(i) the Compensation Payment;
(ii) the Termination Amount;
(iii) such payment, 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;
(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 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; and
(v) two years of health and welfare benefits from the date of
termination.
With regards to the DSUs granted to EXECUTIVE under Section 6 of this Agreement
and the Stock Options granted to EXECUTIVE under Section 5 of this Agreement,
any DSUs or Stock Options not assumed or substituted by the surviving
corporation in a transaction resulting in a Change in Control shall become
immediately vested and, in the case of DSUs, shall be paid out immediately in
stock, and in the case of options, shall be immediately exercisable.
(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
EMPLOYER;
(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 leaseback transactions or other transactions that are primarily
financing transactions) of EMPLOYER or of EMPLOYER 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. and members of the
Carell family, related entities, affiliates, and trusts or foundations created
by or for any of the foregoing) of common stock of EMPLOYER 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 EMPLOYER; or
(iv) the consummation of a consolidation or merger of EMPLOYER
with another corporation, unless the consummation of such consolidation or
merger would result in the stockholders of EMPLOYER 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.
9.6. Excise Tax Indemnification. If the Internal Revenue Service
asserts, or if EXECUTIVE or EMPLOYER is advised in writing by a "Big Five"
accounting firm, that any payment in the nature of compensation to, or for the
benefit of, EXECUTIVE from the EMPLOYER (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
EMPLOYER (collectively, the "Excess Parachute Payments") the EMPLOYER 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"):
(i) 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 9.6;
(ii) the amount of all estimated local, state and federal income
taxes on all Tax Indemnity Payments to EXECUTIVE pursuant to this Section 9.6
(determined in each case at the highest marginal tax rate); and
(iii) the amount of any fines, penalties or interest that have
been or potentially will be, assessed in respect of any excise or income tax
described in the preceding clauses (i) or (ii); so 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 payable in respect of the Tax Indemnity Payments received
by EXECUTIVE pursuant to this Section 9.6.
(10) RESTRICTIVE COVENANTS.
10.1. Covenant Not-to-Compete. During the term of this 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, 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.
10.2 Non-solicitation and Other Covenants. During the term of this
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 10 or 11 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.
(11) 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.
(12) 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.
(13) 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. William J. Vareschi
2401 21st Avenue South, Suite 200 Horizons at Bonita Bay #1501
Nashville, Tennessee 37212 4731 Bonita Bay Boulevard
Attn: Monroe J. Carell, Jr. Bonita Springs, Florida 34134
(14) 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 10 or 11 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 10 or 11 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 10 or 11 of this
Agreement; and (ii) EMPLOYER shall be entitled to discontinue the payment of the
Termination Amount and any other amounts payable hereunder 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 10 or 11 of this
Agreement. Accordingly, if any action or proceeding is instituted by or on
behalf of EMPLOYER to enforce any provisions in Sections 10 or 11 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.
(15) 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 10 or 11 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.
(16) 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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(17) NO ORAL NOTIFICATION. This Agreement may not be modified except by a
writing duly signed by both parties hereto.
(18) 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.
(19) 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.
(20) 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.
(21) 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/ William J. Vareschi
-------------------------------- -------------------------------
Monroe J. Carell William J. Vareschi
Title: Chairman of the Board
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