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Exhibit 10.1.f
REVISED DEFERRED
COMPENSATION AGREEMENT
This Revised Deferred Compensation Agreement is made and entered
into
this 13 day of December, 2004, by and
between Monroe Carell, Jr. ("Monroe"), a
resident of Nashville, Tennessee, and
Central Parking Corporation, a Tennessee
corporation ("CPC" or the
"Corporation").
WITNESSETH
WHEREAS, Monroe presently serves as CPC's Chief Executive Officer
and
Chairman of CPC's Board of Directors and
has successfully directed the course
and growth of the Corporation for over
three decades; and
WHEREAS, the Corporation recognizes Monroe's unique talents and
contributions to the Corporation's success
during his tenure as President,
Chief Executive Officer and Chairman of the
Board of Directors; and
WHEREAS, CPC values the significant efforts, abilities and
accomplishments of Monroe, both past and
present, in the performance of his
duties as a CPC employee and recognizes
Monroe's importance, both past and
present, as a member of the Corporation's
central management team; and
WHEREAS, should the possibility of a Change in Control (as
defined
herein) of the Corporation arise, CPC's
Board of Directors believes it is
imperative that the Corporation and the
Board be able to rely upon Monroe to
continue in his position, and that the
Corporation should be able to receive
and rely upon Monroe's advice, if
requested, as to the best interests of CPC
and its shareholders without concern that
Monroe might be distracted by the
personal uncertainties and risks created by
the possibility of a Change in
Control; and
WHEREAS,
should the possibility of a Change in Control arise, in
addition to his regular duties, Monroe may
be called upon to assist in the
assessment of such possible Change in
Control, advise management and the Board
as to whether such Change in Control would
be in the best interests of the
Corporation and its shareholders, and to
take such other actions as the Board
might determine to be appropriate; and
WHEREAS, Monroe, various trusts benefitting Monroe's wife,
children
and/or other descendants, and charitable
trusts and/or foundations benefitting
said family members of Monroe and/or
various charitable organizations (the
"Carell Shareholders") own a substantial
amount of the outstanding common stock
of the Corporation; and
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WHEREAS, if the
Carell Shareholders dispose of a substantial amount of
their stock pursuant to Rule 144 of the
Securities Act of 1933 on or about the
same date, such sales in the open market
could have a significant adverse
impact on the market price of the
Corporation's common stock; and
WHEREAS, the Corporation desires to provide a mechanism for the
Carell
Shareholders to dispose of their CPC common
stock in an orderly manner that
would minimize any impact on the
Corporation's trading market; and
WHEREAS, CPC and Monroe entered into that certain Deferred
Compensation Agreement dated October 1,
1981, which Agreement was superseded by
that certain Revised Deferred Compensation
Agreement dated October 1, 1988, as
amended by that certain First Amendment to
Deferred Compensation Agreement
dated October 1, 1994 (the "1988/94
Agreement"); and
WHEREAS, the Corporation desires to revise and expand the
non-competition restrictions contained in
that certain Employment Contract
dated October 1, 1995, between Monroe and
the Corporation, and the 1988/94
Agreement, and enter into certain other
restrictions; and
WHEREAS, to encourage Monroe's continued employment by CPC and to
more
fully establish the terms of such
employment, CPC desires to provide to Monroe
the benefits set forth herein, which Monroe
acknowledges to be a material
element of his continued employment by the
Corporation and an inducement to
such continued employment by CPC, and the
parties desire and intend that this
Agreement supersede in all respects the
1988/94 Agreement.
NOW, THEREFORE, to induce Monroe to remain in the employ of the
Corporation and assure the Corporation that
it will have Monroe's continued
dedication and the availability of his
advice and counsel notwithstanding the
possibility, threat, or occurrence of a
Change in Control of the Corporation,
and in consideration of the premises, the
mutual covenants and agreements
contained herein and other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
1.
Duties. Monroe agrees to continue devoting his normal working
time to the interest and activities of the
Corporation in such capacities as
the Board of Directors may from time to
time reasonably assign to him until his
employment with CPC ceases.
1.1.
Cooperation. Monroe will, with reasonable notice
during or after the Period of Employment (which shall be defined
for
purposes of this
Section 1 as the period during which Monroe serves as
an employee Executive Officer or as a non-employee Chairman of
the
Board of Directors), furnish information as is in his possession
and
cooperate with the Corporation as may reasonably be requested
in
connection with any claims or legal actions in which the
Corporation
is or may become a party.
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1.2.
Confidential Information. Monroe recognizes and
acknowledges that all proprietary information pertaining to the
affairs, business, clients, customers or other relationships of
the
Corporation is confidential and is a unique and valuable asset of
the
Corporation (the "Confidential Information"). Confidential
Information
shall not include information that becomes generally available to
the
public other than as a result of a disclosure in violation of
this
Agreement or other similar obligation of secrecy. Access to and
knowledge of the Confidential Information is essential to the
performance of Monroe's duties under this Agreement. Monroe 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 Confidential Information, except as
required
by law. Monroe will not make use of Confidential Information for
his
own purposes or for the benefit of any person or organization
other
than the Corporation. All records, memoranda, and documents of
any
kind containing Confidential Information, whether made by Monroe
or
otherwise coming into his possession in the course of his
employment,
will remain the property of the Corporation.
1.3.
Non-Compete & Non-Solicitation. During (i) the
Period of Employment, (ii) the period following the Period of
Employment while Monroe is receiving compensation or benefits from
the
Corporation under this or any other agreement, and (iii) the period
of
twelve (12) months following the acceleration of amounts payable
to
Monroe under this or any other agreement upon a Change in
Control,
Monroe (a) will not use his status with the Corporation 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
Corporation; and (b) 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:
(1) own or hold any proprietary interest (as defined herein) in or
be
employed by, consult with or receive compensation from, any
party
engaged in the same or any substantially similar business as
the
Corporation, as such exists as of the date hereof and as of the
date
commencing on the first day following the Period of Employment, in
the
United States and other areas where the Corporation conducts
its
business; (2) discuss with any of the Corporation's clients,
customers, landlords, employees or consultants, as such exist as
of
the date hereof and as of the date commencing on the first day
following the Period of Employment, information about or the
operation
of any business intended to compete with the Corporation; (3)
solicit
or attempt to solicit any clients, customers or landlords of
the
Corporation existing as of the date hereof and as of the date
commencing on the first day following the Period of Employment
with
the intent or purpose to perform services for such clients,
customers
or landlords which are the same or substantially similar to
those
provided by the Corporation, or encourage or attempt to encourage
any
such clients, customers or landlords to not continue or
otherwise
modify adversely its business relationship with the Corporation;
(4)
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 Corporation or its affiliates
as
of the date hereof and as of the date commencing on the first
day
following the Period of Employment; or (5) solicit or attempt
to
solicit for the purpose of hiring or engaging, as an employee,
agent,
consultant, independent contractor, or in any other capacity,
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any of the Corporation's employees. For purposes of this Section
1,
"Corporation" shall include any of the Corporation's
subsidiaries,
joint ventures, partnerships or affiliates, to the extent that
the
Corporation has an interest of fifty percent (50%) or greater in
such
entities. For 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 non-publicly held business
firm
or entity, or ownership of more than five percent (5%) of any class
of
equity interest in a publicly-held company. Monroe acknowledges
that
the covenants contained herein are reasonable as to geographic
and
temporal scope and the sufficiency of the consideration for
such
covenants. Notwithstanding the foregoing, during the Period of
Employment (with the prior written consent of a majority of the
disinterested members of the Corporation's Board of Directors, or
a
majority of the members of a committee composed of
disinterested
directors), and following the Period of Employment, it will not be
a
violation of this Section 1.3 for Monroe to (i) provide
advisory
services to municipalities, developers, investors, owners and
others
regarding the development of parking facilities, or (ii) to
acquire
and own, directly or indirectly, any interest in one or more
parking
facilities of any kind or nature (a "Parking Facility") that
are
managed by or leased to persons other than Monroe, provided that
the
Corporation shall have a right of first refusal (subject to any
pre-existing agreements that are not by their terms terminable
without
material penalty to Monroe or the owner of the Parking Facility)
to
lease, manage or operate such Parking Facility for the first
term
(which shall not exceed five (5) years) after Monroe becomes
the
majority owner or otherwise obtains control of such Parking
Facility
(as "control" is defined in Rule 405 of the Securities Act of 1933,
as
amended). This right of first refusal shall require that Monroe
offer
to the Corporation the first right of negotiation with respect
to
management or lease of the Parking Facility. In the event the
Corporation and Monroe are unable after thirty (30) days to agree
on
terms, then the Corporation shall have the right to match any
third
party's terms that are offered to Monroe with respect to management
or
lease of the Parking Facility, such right to be exercised or
declined
by the Corporation within fifteen (15) days after written
notice
describing the third party terms. The Corporation acknowledges
that
Monroe and his daughters currently own 100% of The Carell Family,
LLC,
which is the owner of two parking facilities located in
Nashville,
Tennessee (Alloway Parking Lot and 2nd & Church Parking Lot),
that are
leased to the Corporation under leases dated October 6, 1995
("Lease
Agreements"), and that Monroe and his daughters currently own 100%
of
D-Garage, LLC, which has an ownership interest in the LoDo Garage
in
Denver, Colorado
with the Corporation. The Corporation acknowledges
that ownership of such limited liability company interests and of
such
parking facilities, by Monroe, either LLC or the members of either
LLC
upon its dissolution or distribution, shall not be deemed to be
a
violation of this Section 1.3, and each LLC and its members are
free
to dispose of the LLC membership interests or the assets of such
LLC
without restriction by this Section 1.3 except for the provisions
of
the Lease Agreements or the agreement governing ownership by
D-Garage,
LLC of the LoDo garage interest.
1.4.
Injunctive Relief. Monroe hereby acknowledges the
receipt and sufficiency of the consideration set forth in this
Agreement in return for the covenants and agreements set forth in
this
Section 1 and that such consideration includes, but is not limited
to,
the payments set forth in Section 3 of this Agreement. Monroe
further
acknowledges and agrees that his breach or threatened or
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attempted breach of any provision of Section 1 would cause
irreparable
harm to the Corporation not compensable in monetary damages and
that
the 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 without being
required
to prove damages or furnish any bond or other security. If any
provision of this Section 1 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 1 shall ever be deemed to exceed the time
or
geographical limits permitted by applicable law, then such
provision
shall be reformed to the maximum time and geographical limits
permitted by applicable law. In the event of the material breach
by
Monroe of a provision of this Section 1, which remains uncured
after
thirty (30) days' written notice to Monroe, the Corporation shall
be
entitled to suspend all payments required to be made under this
Agreement and the provision of benefits (excluding insurance
benefits
under Section 4) to Monroe pending resolution thereof as
provided
herein.
2.
Post-Retirement Payments. If Monroe ceases to be employed by
the Corporation for any reason other than
his termination by the Corporation
for "Cause" as provided in Section 14
below, CPC shall make the following
payments:
2.1.
Payments to Monroe. If Monroe ceases to be employed
by the Corporation for any reason other than his death or
Termination
for Cause, then the Corporation shall pay to Monroe a monthly
retirement benefit on the first day of each month for the remainder
of
his life. The first such payment in the amount of Two Hundred
Fifty
Thousand Dollars ($250,000) shall be due on the first day of
the
seventh (7th) month immediately following the last month in
which
Monroe is employed by the Corporation and subsequent monthly
payments
in the amount of Forty-One Thousand Six Hundred Sixty-Seven
Dollars
($41,667) shall be due on the first day of each succeeding
month
thereafter until Monroe's death.
2.2.
Payments to Monroe's Widow. Following Monroe's death
(whether such occurs before or after Monroe ceases to be employed
by
the Corporation), CPC shall pay a monthly widow's benefit to
Monroe's
wife, Ann Scott Carell, on the first day of each month for the
remainder of her life. The first payment shall be due on the first
day
of the month immediately following the month in which Monroe
dies
(provided, however, if Monroe's death occurs before he ceases to
be
employed by the Corporation for any reason, then the first payment
to
Ann Scott Carell shall be due on the first day of the seventh
(7th)
month immediately following the month in which Monroe dies) and
all
subsequent payments shall be due on the first day of each
succeeding
month thereafter until Ann Scott Carell's death. The amount of
each
monthly payment shall be Forty-One Thousand Six Hundred
Sixty-Seven
Dollars ($41,667); provided, however, if Monroe's death occurs
before
he ceases to be employed by the Corporation for any reason, then
the
first payment to Ann Scott Carell shall be in the amount of Two
Hundred Fifty Thousand Dollars ($250,000) and all subsequent
monthly
payments shall be in the amount of Forty-One Thousand Six
Hundred
Sixty-Seven Dollars ($41,667). Notwithstanding
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anything in this Section 2.2 to the contrary, if Monroe's death
occurs
after he ceases to be employed by the Corporation for any reason
and
before payments to Monroe have begun under Section 2.1, then the
first
payment to Ann Scott Carell in the amount of Two Hundred Fifty
Thousand Dollars ($250,000) shall be due on the first day of
the
seventh (7th) month immediately following the last month in
which
Monroe is employed by the Corporation and subsequent monthly
payments
in the amount of Forty-One Thousand Six Hundred Sixty-Seven
Dollars
($41,667) shall be due on the first day of each succeeding
month
thereafter until Ann Scott Carell's death.
Notwithstanding anything in this Section 2 to the contrary, if
CPC
makes the payment(s) required of it under
Section 9 below in the event of a
Change in Control of the Corporation,
neither Monroe nor his widow shall
receive any additional payments under this
Section 2 after the payment(s)
required under Section 9 are paid in full
by the Corporation.
For purposes of this Agreement, Monroe's employment by the
Corporation
shall not include any period in which
Monroe is serving as a non-employee
Chairman or member of the Corporation's
Board of Directors. It is intended by
the parties hereto that Monroe's ceasing to
be employed by the Corporation
(regardless of whether Monroe continues
thereafter to serve as a non-employee
Chairman or member of the Corporation's
Board of Directors) be a "separation
from service" as such phrase is used in
Section 409A of the Internal Revenue
Code of 1986, as amended (the "Code").
3.
Payments Following Termination of Employment as Chief
Executive Officer. Immediately after Monroe
ceases to serve as the
Corporation's Chief Executive Officer, the
Corporation shall pay to Monroe a
monthly amount of Twenty-Five Thousand
Dollars ($25,000), which payments shall
commence on the first day of the month
immediately following the last month in
which Monroe is employed as CPC's Chief
Executive Officer and continue each
month thereafter until the later to occur
of (i) the date on which Monroe
ceases to serve as non-employee Chairman of
the Corporation's Board of
Directors, and (ii) the date that is five
(5) years after the first payment is
made under this Section 3; provided,
however, if Monroe does not commence
serving or ceases to serve as non-employee
Chairman of the Board prior to the
termination of said five (5) year period,
then payments under this Section 3
shall be suspended for six (6) months and
shall begin or resume in the seventh
(7Th) month thereafter and continue until
the date that is five (5) years and
six (6) months after the first payment is
made or is to be made under this
Section 3. Notwithstanding anything in this
Section 3 to the contrary, payments
under this Section 3 shall cease upon
Monroe's death and shall be suspended
upon any breach of Section 1 of this
Agreement in accordance with Section 1.4
of this Agreement.
3.1.
Per Diem Payments. The Corporation shall pay to
Monroe a daily per diem fee of Two Thousand Five Hundred
Dollars
($2,500) for services rendered by Monroe as Chairman (excluding
Board
meetings) in excess of eighteen (18) days in any consecutive
twelve
(12) month period. For purposes of this Section 3.1, any
services
provided by Monroe during a day shall constitute one (1) day
regardless of the actual length of such services.
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3.2.
Use of Office. During the period in which Monroe is
serving as a non-executive officer Chairman of the Corporation's
Board
of Directors, Monroe shall be entitled to the continued use of
the
office, secretarial assistance and customary office facilities
and
services he is using at the time he ceases to be CPC's Chief
Executive
Officer.
4.
Insurance. Immediately following Monroe's cessation of
employment by CPC (other than upon his
termination by the Corporation for
Cause), the Corporation will arrange and
pay for health care (including, but
not limited to, medical, prescription,
vision and dental), life (including, but
not limited to, individual, group and
accidental death) and other insurance
coverage (excluding disability) for Monroe
and his wife, during their
respective lifetimes after Monroe's
cessation of employment by CPC, at the same
or substantially similar level of benefits
as if Monroe's employment by CPC had
not ceased. Any costs Monroe is paying for
such coverages at the time he ceases
to be employed by CPC shall continue to be
paid by him (and following his
death, his widow). There shall be no period
of time after Monroe ceases to be
employed by CPC in which the Corporation is
not providing Monroe or his wife
with such coverage.
5.
Additional Benefits. After Monroe ceases to be employed by
the Corporation (other than upon his
Termination for Cause):
5.1.
Reimbursement of Expenses Incurred as Director.
During any period in which Monroe is serving as a member of the
Corporation's Board of Directors, the Corporation shall pay, or
reimburse Monroe upon his submission of receipts therefor, all
out-of-pocket expenses for entertainment, travel, meals, hotel
accommodations, and the like incurred in connection with his
duties
and responsibilities as a Board member.
5.2.
Stationary. After Monroe ceases to serve as Chairman
of the Corporation's Board of Directors, Monroe may use stationary
and
other letterhead of the Corporation, at CPC's expense, in which
Monroe
is referred to as Chairman of the Board Emeritus.
6.
Right to Participate in Secondary Offerings. If the
Corporation at any time proposes to
register any of its common stock under the
Securities Act for sale to the public,
except with respect to (i) registration
statements on Forms S-4, S-8 or any
successor or similar forms or another form
not available for registering the shares
held by the Carell Shareholders for
sale to the public or in connection with a
tender offer, merger or other
acquisition, (ii) any registration
statement relating to any demand
registration rights granted pursuant to any
existing registration rights
agreement, or (iii) any registration
statement filed in connection with the
Trust Issued Preferred Securities that the
Corporation sold pursuant to Rule
144A on March 18, 1998, each such time it
will give written notice to the
Carell Shareholders of its intention to do
so. Upon the written request of any
of such Carell Shareholder, given within
fifteen (15) days after receipt by
such person of such notice, the Corporation
will, subject to the limits
contained in this Section 6, use its
reasonable best efforts to cause all such
shares of said requesting shareholders to
be registered under the Securities
Act and qualified for sale under any state
blue sky law, all to the extent
required to permit such sale or other
disposition of said shares held by the
Carell Shareholders; provided, however,
that if the Corporation is advised in
good faith by any managing underwriter of
the Corporation's securities
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being offered in a public offering pursuant
to such registration statement that
the amount to be sold by persons othe
