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EXHIBIT 10.23
EXECUTION COPY
SHAREHOLDERS' AGREEMENT
AND AGREEMENT NOT TO COMPETE
By And Among
CENTRAL PARKING CORPORATION
MONROE J. CARELL, JR.,
▇▇▇▇▇ ▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇▇▇
Dated As Of
February 12, 1998
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TABLE OF CONTENTS
Page
ARTICLE I. Definitions ........................................................1
Section 1.01 Certain Definitions ...................................1
ARTICLE II. Board Representation ..............................................4
Section 2.01 Board of Directors ....................................4
Section 2.02 Removal of Designated Directors; Vacancies ............5
Section 2.03 Charter and By-Laws; Fiduciary Duties .................5
Section 2.04 Voting ................................................5
Section 2.05 No Duty to Designate ..................................6
Section 2.06 Directors and Officers Insurance Policy ...............6
ARTICLE III. Transfers ........................................................6
Section 3.01 Transfers of Securities ...............................6
ARTICLE IV. Non Competition ...................................................7
Section 4.01 KSHC Shareholder Non Competition ......................7
ARTICLE V. Representations and Warranties .....................................9
Section 5.01 Representations and Warranties of the Parent ..........9
Section 5.02 Representations and Warranties of the Shareholders ...10
ARTICLE VI. Indemnification; Releases ........................................11
Section 6.01 Obligation of the KSHC Shareholders to Indemnify .....11
Section 6.02 Certain Indemnification Procedures ...................11
Section 6.03 Releases; Obligation of the Parent to Indemnify ......14
Section 6.04 Releases .............................................15
Section 6.05 No Other Representations and Warranties ..............15
ARTICLE VII. Shareholders Representatives ....................................16
Section 7.01 KSHC Shareholder Representative ......................16
ARTICLE VIII. Miscellaneous ..................................................17
Section 8.01 Further Assurances ...................................17
Section 8.02 Effectiveness ........................................17
Section 8.03 Notices ..............................................17
Section 8.04 Legends ..............................................19
Section 8.06 Amendments, Waivers, Etc. ............................19
Section 8.07 Successors and Assigns ...............................19
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Section 8.08 Entire Agreement .....................................20
Section 8.09 Severability .........................................20
Section 8.10 Enforcement ..........................................20
Section 8.11 Remedies Cumulative ..................................20
Section 8.12 No Waiver ............................................20
Section 8.13 No Third Party Beneficiaries .........................20
Section 8.14 Governing Law ........................................20
Section 8.15 Consent to Jurisdiction and Service of Process .......21
Section 8.16 Waiver of Jury Trial .................................21
Section 8.17 Inspection ...........................................21
Section 8.18 Name, Headings .......................................21
Section 8.19 Counterparts .........................................21
Schedule I: Common Stock Ownership
Schedule 1.01: Excepted KSHC Restricted Assets
Schedule 6.01: Shareholder Percentages
Exhibit A: Form of Joinder Agreement
Exhibit B: KSHC Shareholder Release
Exhibit C-1: ▇▇▇▇▇▇▇▇ Release
Exhibit C-2: KSHC Release
Exhibit C-3: ▇▇▇▇ Release
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SHAREHOLDERS' AGREEMENT
AND AGREEMENT NOT TO COMPETE
SHAREHOLDERS' AGREEMENT AND AGREEMENT NOT TO COMPETE, dated as of February
12, 1998 (this "Agreement"), by and among CENTRAL PARKING CORPORATION, a
Tennessee corporation ("Parent"), MONROE J. CARELL, JR., ▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"),
and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"). Capitalized terms used without definition
herein shall have the meanings ascribed thereto in the Merger Agreement (as
defined below).
W I T N E S S E T H:
WHEREAS, KSHC, Parent and certain wholly-owned Subsidiaries of the Parent
have entered into an Acquisition Agreement and Plan of Merger, dated as of
November 7, 1997 (as the same may be amended, modified or supplemented from
time to time, the "Merger Agreement");
WHEREAS, pursuant to the Merger Agreement, the execution and delivery of
this Agreement is a condition to the consummation of the Transactions;
WHEREAS, upon the consummation of the Transactions, ▇▇▇▇ and ▇▇▇▇▇▇▇▇
shall Beneficially Own the number of shares of the common stock, par value $.01
per share, of the Parent (the "Common Stock") set forth opposite his name on
Schedule I hereto.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Certain Definitions. The following terms, when used in
this Agreement, shall have the following meanings (such definitions to be
equally applicable to both singular and plural terms of the terms defined):
"Board" means the Board of Directors of the Parent.
"By-Laws" means the By-Laws of the Parent, as amended.
"Carell Shareholders" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. and each of his
direct and indirect Permitted Transferees.
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"Change in Control" means the acquisition by any Person (other than
any of the Shareholders or their respective Affiliates) of Beneficial Ownership
of Voting Securities representing 40% or more of the outstanding Voting
Securities.
"Charter" means the certificate of incorporation of the Parent, as
amended.
"Common Stock" has the meaning ascribed thereto in the recitals to
this Agreement.
"Designated Director Vacancy" shall have the meaning ascribed
thereto in Section 2.02(b).
"Designated Environmental Engineer" means an independent, qualified
environmental engineer or environmental engineering consultant, who is also an
attorney, of nationally recognized standing and mutually acceptable to the
applicable parties.
"Environmental Activity Proposal" has the meaning ascribed thereto
in Section 6.02.
"First Indemnity Threshold" shall have the meaning ascribed thereto
in Section 6.01(a).
"IRS" means the United States Internal Revenue Service.
"▇▇▇▇ Consulting Agreement" means the Consulting Agreement, dated as
of the date hereof, between Parent and ▇▇▇▇.
"▇▇▇▇ Release" shall have the meaning set forth in Section 6.04(d).
"KSHC Director" means ▇▇▇▇, or in the event of his disability or
death, a member of the Board designated by ▇▇▇▇ or the executor of his estate,
as the case may be, who is reasonably acceptable to Parent.
"KSHC Release" shall have the meaning set forth in Section 6.04(c).
"KSHC Representative" shall have the meaning ascribed thereto in
Section 7.01(a).
"KSHC Restricted Area" means any area within a 50 mile radius of any
KSHC Restricted Asset.
"KSHC Restricted Assets" means the assets owned or operated by the
KSHC Entities (other than the KSHC Entities set forth on Schedule 1.01) on the
Closing Date.
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"KSHC Restricted Person" has the meaning ascribed thereto in Section
4.01(b).
"KSHC Shareholders" means ▇▇▇▇ and ▇▇▇▇▇▇▇▇.
"Lowest Cost Response" means any compliance activity or any
investigation, cleanup, remediation, removal action or other response activity
that (a) meets or exceeds (i) the least stringent standards (including any
lesser standards resulting from any site-specific risk assessment) required
under all applicable Environmental Laws and (ii) the standards set forth in any
applicable KSHC Real Property Contract, in each case as in effect on the
Closing Date based on the use of the applicable property on the Closing Date
and (b) can be achieved for the lowest financial cost as compared with other
potential response activities that satisfies this definition.
"Nominating Committee" means the Nominating Committee of the Board.
"NYSE Rules" means the then-current rules and regulations of the New York
Stock Exchange.
"Other Directors" means the directors of the Parent, other than the KSHC
Director.
"Outside Director" means any director of the Parent who is not (a) a KSHC
Director or (b) an officer or employee of the Parent or any Subsidiary.
"Parent Acquisition Notice" shall have the meaning ascribed thereto in
Section 4.01(b).
"Parent Indemnitees" has the meaning ascribed thereto in Section 6.01(a).
"Permitted Transferee" means, with respect to any Person who is a natural
Person, the spouse or any lineal descendant (including by adoption and
stepchildren) of such Person, or any trust of which such Person is the trustee
and which is established solely for the benefit of any of the foregoing
individuals and the terms of which are not inconsistent with the terms of this
Agreement, in each case who shall have executed and delivered a Joinder
Agreement substantially in the form of Exhibit A hereto, and thereby become a
party to this Agreement.
"Post-Closing Event" means any of the following events: (a) the slate of
directors actually nominated by the Nominating Committee (or if the Nominating
Committee makes no such recommendation, the Board) for election, to the Board
does not include the KSHC Director required to be so nominated pursuant to
Section 2.01; or (b) the KSHC Director becomes unable to serve by reason of any
event during his or her term and the Parent shall have failed to comply with
Section 2.02(b).
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"▇▇▇▇▇▇▇▇ Release" shall have the meaning set forth in Section
6.04(b).
"Second Indemnity Threshold" shall have the meaning ascribed thereto
in Section 6.01(a).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Shareholders" means the KSHC Shareholders and the Carell
Shareholders.
"Subsidiary" means any Subsidiary of the Parent.
"Subsidiary Board" means the Board of Directors of any Subsidiary.
"Total Voting Power" means, at any time, the aggregate number of votes
which may be cast by holders of outstanding Voting Securities.
"Transfer" means sell, transfer, assign, pledge, hypothecate, give
away or in any manner dispose of, or enter into any voting agreement with
respect to, any shares of Common Stock.
"Voting Securities" means the shares of Common Stock and other
securities (including without limitation voting preferred stock) issued by
the Parent which are entitled to vote generally for the election of
directors of the Parent, whether currently outstanding or hereafter issued
(other than securities having such powers only upon the occurrence of a
contingency).
ARTICLE II.
BOARD REPRESENTATION
Section 2.01 Board of Directors. During the term of this Agreement,
Parent convenants and agrees as follows:
(a) Except as contemplated by this Agreement or as otherwise agreed to by
the KSHC Director, the Parent shall not take or recommend to its shareholders
any action which would result in any amendment to the By-Laws or the Subsidiary
Documents of any Subsidiary, in each case as in effect on the Closing Date, that
would impose any qualifications to the eligibility of directors of the Parent or
any Subsidiary thereof to serve on any committee of the Board, any Subsidiary
Board or any committee of any such Subsidiary Board, except as may be required
under the NYSE Rules or by applicable law.
(b) From and after the Closing Date through and including the third
anniversary thereof, the Parent shall use its best efforts to cause the
Nominating Committee (or if the
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Section 2.05 No Duty to Designate. Nothing contained in this Article II
shall be construed as requiring ▇▇▇▇ or the executor of his estate, as the
case may be, to designate any KSHC Director or to require any KSHC Director to
continue to serve in office if such KSHC Director elects to resign.
Section 2.06 Directors and Officers Insurance Policy. The Parent shall
cause the KSHC Director to be covered by directors and officers liability
insurance to the same extent and in the same amount as any Outside Director.
Nominating Committee makes no such recommendation, the Board) to recommend for
election to the Board the KSHC Director.
Section 2.02 Removal of Designated Directors; Vacancies.
(a) ▇▇▇▇ or the executor of his estate, as the case may be, shall have
the right, with or without cause, to request the removal from the Board of any
KSHC Director serving as a result of a disability or death of ▇▇▇▇. Any such
removal shall be subject to the applicable provisions of the Charter and the
By-Laws (including without limitation, any shareholder vote requirement), as
well as applicable statutory provisions; provided, that the Parent shall use
its best efforts to cause the Other Directors to vote in favor of such
requested removal.
(b) If any such KSHC Director serving as a result of a disability or
death of ▇▇▇▇ for any reason ceases to serve as a member of the Board during
his or her term of office, and if at such time ▇▇▇▇ or the executor of his
estate, as the case may be, would have the right to a designation under
Section 2.01 if an election for the resulting vacancy were to be held, (i) the
director to fill such vacancy (the "Designated Director Vacancy") shall be
designated by ▇▇▇▇ or the executor of his estate, as the case may be, if ▇▇▇▇
or the executor of his estate, as the case may be, has the right under
Section 2.01 to so designate at such time, and (ii) Parent shall use its best
efforts to cause such Designated Director Vacancy to be filled by the person so
designated in accordance with the Charter; provided, that nothing in this
subsection 2.02(b) shall require Parent to call a special shareholders meeting.
Section 2.03 Charter and By-Laws; Fiduciary Duties. The obligations of
the Parent set forth in this Article II shall be subject to compliance with the
applicable provisions of the Charter and the By-Laws, and the fiduciary duties
of the members of the Board and the Nominating Committee, to the shareholders of
the Parent. Nothing contained in this Article II shall require the Parent to
violate any such provisions or to require any member of the Board to breach any
such fiduciary duty.
Section 2.04 Voting.
(a) During the term of this Agreement, the Carell Shareholders shall take
all such action as may be required so that all Voting Securities Beneficially
Owned by such Carell Shareholders are voted (in person or in proxy) for the
Parent's nominees to the Board, in accordance with the recommendation of the
Nominating Committee (or, if the Nominating Committee makes no such
recommendation, the Board).
(b) Each of the Carell Shareholders shall use its best efforts to be
present, in person or by proxy, at all duly held meetings of the shareholders
of the Parent so that all Voting Securities held by the Carell Shareholders
may be counted for the purposes of determining the presence of a quorum at such
meetings.
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Section 2.05 No Duty to Designate. Nothing contained in this Article II
shall be construed as requiring ▇▇▇▇ or the executor of his estate, as the case
may be, to designate any KSHC Director or to require any KSHC Director to
continue to serve in office if such KSHC Director elects to resign.
Section 2.06 Directors and Officers Insurance Policy. The Parent shall
cause the KSHC Director to be covered by directors and officers liability
insurance to the same extent and in the same amount as any Outside Director.
ARTICLE III.
TRANSFERS
Section 3.01 Transfers of Securities. During the period from the
Closing Date through and until the second anniversary thereof, neither ▇▇▇▇ nor
▇▇▇▇▇▇▇▇ shall Transfer any shares of Common Stock Beneficially Owned by such
Person, except:
(a) to any Permitted Transferee of ▇▇▇▇ or ▇▇▇▇▇▇▇▇, as the case may
be;
(b) to Parent;
(c) pursuant to a merger or consolidation, or plan of liquidation of
the Parent, in each case which has been approved by the affirmative vote of a
majority of the members of the Board then in office;
(d) pursuant to a tender offer or exchange offer by any Person in
connection with which the Board (i) recommends that the shareholders of the
Parent tender their shares in such tender or exchange offer or (ii) states that
it is neutral with respect to such tender or exchange offer;
(e) to any Person in any other transaction after the occurrence of (i)
a Change in Control, (ii) the sale of all or substantially all of the assets of
the Parent and the Subsidiaries, taken as a whole, or (iii) a Post-Closing
Event;
(f) (i) in the case of ▇▇▇▇, to any Person in any other transaction,
so long as ▇▇▇▇ holds such number of shares of Common Stock (rounded to the
nearest whole number) having an aggregate value equal to $28 million (based on
a per share price equal to the Base Period Trading Price as of the Closing, as
adjusted thereafter for any securities paid, issued or distributed in respect
of any shares of Common Stock by way of stock dividend or distribution or stock
split or in connection with a combination of shares, recapitalization,
reorganization, merger, consolidation or otherwise), (ii) in the case of
▇▇▇▇▇▇▇▇, to any Person in any other transaction, so long as ▇▇▇▇▇▇▇▇ holds
such number of shares of Common Stock (rounded to the nearest whole number)
having an aggregate value equal to $9 million (or $8.75 million after giving
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effect to the charitable contribution of Common Stock, if applicable, as more
fully set forth in the proviso to this subsection) based on a per share price
equal to the Base Period Trading Price as of the Closing, as adjusted thereafter
for any securities paid, issued or distributed in respect of any shares of
Common Stock by way of stock dividend or distribution or stock split or in
connection with a combination of shares, recapitalization, reorganization,
merger, consolidation or otherwise; provided that, notwithstanding the
foregoing, pursuant to an agreement between the KSHC Shareholders, ▇▇▇▇▇▇▇▇ may
pledge, at his option, such number of shares of Common Stock (rounded to the
nearest whole number) having an aggregate value of $250,000, based on a per
share price equal to the Base Period Trading Price at Closing, to a charitable
organization designated by ▇▇▇▇; or
(g) to any Person by any Permitted Transferee or the estate of ▇▇▇▇ or
▇▇▇▇▇▇▇▇, after the death of ▇▇▇▇ or ▇▇▇▇▇▇▇▇, as the case may be.
ARTICLE IV.
NON COMPETITION
Section 4.01 KSHC SHAREHOLDER NON COMPETITION.
(a) For a period of five years following the date on which the term of any
KSHC Real Property Contract relating to a KSHC Restricted Asset effectively
expires, terminates or is not otherwise extended or renewed, each KSHC
Shareholder severally agrees that it shall not, directly or indirectly,
through any Person Controlled by such KSHC Shareholder or otherwise, in any form
or manner, acquire or seek to acquire the applicable KSHC Restricted Asset, for
its own account or for the account of any other Person (other than Parent or any
of its Subsidiaries).
(b) For a period of three years following the Closing date, except as
contemplated or permitted under the Transaction Documents, each KSHC Shareholder
severally agrees that it shall not, directly or indirectly, through any Person
Controlled by such KSHC Shareholder or otherwise, in any form or manner; (i)
engage in any activities in the KSHC Restricted Area relating to the Business,
for its own account or for the account of any other Person; or (ii) become
interested in any Person (other than Parent or any of its Subsidiaries) engaged
in activities relating to the Business in the KSHC Restricted Area (a "KSHC
restricted person") as a partner, shareholder, member, principal, agent,
employee, trustee, consultant or in any other relationship or capacity;
provided, however, that (A) such KSHC Shareholder may own, directly or
indirectly, solely as a passive investment, securities of any KSHC Restricted
Person if (x) such KSHC Shareholder or any Affiliate of such KSHC Shareholder,
as the case may be, (1) is not a Person in Control of, or a member of a group
that Controls, such KSHC Restricted Person and (2) does not, directly or
indirectly, own 5% or more of any voting class of securities of such KSHC
Restricted Person, and (y) such KSHC Restricted Person does not, directly or
indirectly, derive 10% or more of its total revenues from activities related to
the Business in the KSHC Restricted Area (it being expressly understood that any
other activity by such KSHC Shareholder
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related to such contemplated purchase otherwise prohibited by the provisions
of this Section 4.01(b) shall not be permitted) and (B) notwithstanding the
provisions above, on or after the Closing Date, in the event that ▇▇▇▇ or
▇▇▇▇▇▇▇▇, as the case may be, proposes to Parent to acquire commercial real
property or a long-term leasehold in respect of commercial property in excess
of 50 years, in each case that is reasonably likely to be used in the Business,
by notice in writing to Parent setting forth the proposed consideration,
description of the property and any other terms that ▇▇▇▇ or ▇▇▇▇▇▇▇▇ deems
material (a "Property Acquisition Notice"), and Parent notifies ▇▇▇▇ or
▇▇▇▇▇▇▇▇ in writing within 15 calendar days after receipt by Parent of the
Property Acquisition Notice that Parent wishes to acquire up to 50% of all of
the interests offered to ▇▇▇▇ or ▇▇▇▇▇▇▇▇, ▇▇▇▇ or ▇▇▇▇▇▇▇▇, as the case may
be, may own, directly or indirectly, solely as a passive investment, such other
offered interest in any such commercial real property or a long-term leasehold
in respect of commercial property in excess of 50 years; provided, that, Parent
shall have the right to manage or lease any parking facility acquired on
commercially reasonable terms and conditions, when and to the extent such
facility becomes reasonably available; and provided, further, that ▇▇▇▇ or
▇▇▇▇▇▇▇▇ or their respective Affiliates (other than KSHC and its Subsidiaries)
may not actively participate, directly or indirectly, in the operation of any
such parking facility acquired and (C) notwithstanding the provisions above, on
or after the Closing Date, in the event that ▇▇▇▇ or ▇▇▇▇▇▇▇▇ delivers to
Parent a Property Acquisition Notice to Parent and Parent notifies ▇▇▇▇ or
▇▇▇▇▇▇▇▇, as the case may be, that Parent does not wish to purchase any
interest in such transaction within 15 calendar days after receipt by Parent of
a Property Acquisition Notice (or ▇▇▇▇ or ▇▇▇▇▇▇▇▇ does not receive written
notice from Parent within such 15 calendar day period), ▇▇▇▇ or ▇▇▇▇▇▇▇▇ may
own, directly or indirectly, solely as a passive investment, up to 100% of the
interest to be acquired; provided, that ▇▇▇▇ or ▇▇▇▇▇▇▇▇ or their respective
Affiliates (other than KSHC and its Subsidiaries) may not actively participate,
directly or indirectly, in the operation of any such parking facility acquired;
and provided, further, that such acquisition is subject to Section 4.01(c),
below and (D) in the event that Parent has not removed the Special Philadelphia
Asset as an Investment Asset to be sold by KSHC to ▇▇▇▇ prior to Closing by
written notice to KSHC, ▇▇▇▇ may manage or lease any parking facility relating
to the Special Philadelphia Asset.
(c) (i) If the events described in clause (C) of Section 4.01(b), above,
occur, ▇▇▇▇ or ▇▇▇▇▇▇▇▇, as the case may be, shall give Parent written notice
of the consummation of such acquisition and, in the case of any available
parking facility acquired, shall set forth the proposed terms and conditions of
any management contract or lease in connection therewith, including the
proposed consideration, term, and any other provisions which ▇▇▇▇ or ▇▇▇▇▇▇▇▇
deems material.
(ii) Parent shall have 20 calendar days from receipt of such notice
to review such terms and conditions and enter into a management agreement or
lease with ▇▇▇▇ or ▇▇▇▇▇▇▇▇ or their respective Affiliates on such terms and
conditions. If, at the end of such 20 calendar day period, Parent has elected
not to enter into a management agreement on such terms and conditions, ▇▇▇▇ or
▇▇▇▇▇▇▇▇ or their respective Affiliates may enter into a management agreement
or lease with any third party on substantially no less favorable terms.
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(iii) If ▇▇▇▇ or ▇▇▇▇▇▇▇▇ or their respective Affiliates does not
enter into any such management agreement or Lease with a third party, then ▇▇▇▇
or ▇▇▇▇▇▇▇▇ or their respective Affiliates may either (A) elect not to enter
into any such management agreement, subject to the provisos in clause (C) of
Section 4.01(b) or (B) propose revised terms and conditions for any such
management agreement or lease that would remain subject to the procedures set
forth in clauses (i) and (ii) of this Section 4.01(c).
(d) If any KSHC Shareholder breaches, or threatens to commit a breach of,
any of the provisions contained in Sections 4.01(a) or (b), the Parent shall
have the following rights and remedies with respect to such KSHC Shareholder,
each of which rights and remedies shall be independent of the others and
severally enforceable, and each of which is in addition to, and not in lieu of,
any other rights and remedies available to the Parent under law or in equity:
(i) the right and remedy to have the provisions of Sections 4.01(a)
or (b) specifically enforced by any court of competent jurisdiction, it being
agreed that any breach or threatened breach of the provisions of Sections
4.01(a) or (b) would cause irreparable injury to the Parent and that money
damages would not provide an adequate remedy to the Parent; and
(ii) the right and remedy to require such KSHC Shareholder to account
for and pay over to the Parent, all compensation, profits, monies, accruals,
increments or other benefits derived or received by such KSHC Shareholder as
the result of any action constituting a breach of Sections 4.01(a) or (b).
(e) Each of the KSHC Shareholders acknowledges and agrees that the
provisions of Sections 4.01(a) and (b) are reasonable and valid in geographical
and temporal scope and in all other respects. If any court determines that the
provisions of Sections 4.01(a) or (b), or any part thereof, is unenforceable
because of the duration or geographical scope of such provision, such court
shall have the power to reduce the duration or scope of such provision, as the
case may be, and, in its reduced form, such provision shall be enforceable.
(f) If any court determines that the provisions of Sections 4.01(a) or
(b), or any part thereof, is invalid or unenforceable, the remainder of the
provisions of Sections 4.01(a) or (b) shall not thereby be affected and shall
be given full effect without regard to the invalid portions.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01 Representations and Warranties of the Parent. Parent
represents and warrants to the other parties hereto as follows:
(a) Parent is a corporation duly organized, validly existing and in good
standing under the laws of the State of Tennessee.
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(b) Parent has all necessary power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery by Parent of this
Agreement has been duly and validly authorized by all necessary corporate,
including the approval of the Board, and no other corporate proceedings on the
part of Parent are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by a duly authorized officer of the Parent and
constitutes a valid and binding obligation of the Parent, enforceable against
the Parent in accordance with its terms, except as limited by (i) bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
creditors' rights generally or (ii) general principles of equity, whether such
enforceability is considered in a proceeding in equity or at law, and to the
discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution or delivery of this Agreement nor the
consummation by the Parent of the transactions contemplated hereby conflicts
with or constitutes a violation of or default under (ii) the Charter or the
By-Laws, (ii) any federal or state law, rule, regulation, order judgment or
decree applicable to the Parent or by which any of its respective properties is
bound or affected or (iii) any contract, commitment, agreement, arrangement or
restriction of any kind to which the Parent is a party.
Section 5.02 Representations and Warranties of the Shareholders. Each of
the Shareholders represents and warrants, severally and not jointly, to the
other parties hereto as follows:
(a) such Shareholder has full right, power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby;
and
(b) neither the execution or delivery of this Agreement nor the
consummation by such Shareholder of the transactions contemplated hereby will
violate any provisions of any law, rule or regulation applicable to such
Shareholder or any contract or agreement to which such Shareholder is a party.
Section 5.03 Representations and Warranties of KSHC Shareholders. Each of
the KSHC Shareholders represents and warrants, severally and not jointly, to
Parent as follows:
(a) The shares of Common Stock are being or will be acquired by each KSHC
Shareholder pursuant to the ▇▇▇▇▇▇▇▇ Stock Purchase Agreement or the Merger
Agreement, as the case may be, for his own account and with no intention of
distributing or reselling such securities or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America, or any state, without prejudice, however, to the rights of such KSHC
Shareholder at all times to sell or otherwise dispose of all or any part of the
shares of Common Stock owned by such KSHC Shareholder under an effective
registration statement
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under the Securities Act, or under an exemption from such registration
available under the Securities Act, and subject, nevertheless, to the
disposition of such KSHC shareholder's property pricing at all times within his
control. If such KSHC Shareholder should in the future decide to dispose of any
of the shares of Common Stock received pursuant to the ▇▇▇▇▇▇▇▇ Stock Purchase
Agreement or the Merger Agreement, such KSHC Shareholder understands and agrees
that it may do so only in compliance with this Agreement, the Securities Act
and applicable state securities laws, as then in effect.
(b) Each KSHC Shareholder is an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
ARTICLE VI.
INDEMNIFICATION; RELEASES
Section 6.01 Obligation of the KSHC Shareholders to Indemnify.
(a) The KSHC Shareholders shall, severally and not jointly, on a
percentage basis equal to the percentages set forth opposite their respective
names on Schedule 6.01 attached hereto, indemnify, defend and hold harmless, to
the fullest extent permitted under applicable law, the Parent and its
Subsidiaries (including KSHC after Closing) and their respective directors,
officers and employees (for purposes of this Agreement, other than ▇▇▇▇,
collectively referred to as the "Parent Imdemnitees") from and against eighty
percent (80%) of each Loss (net of all general reserves and accruals for
liabilities that are the subject of indemnification pursuant to this Section
6.01(a) and set forth as a line item on the KSHC Closing Date Balance Sheet,
insurance proceeds and indemnification payments from third parties) that arise
from (i) item no. 5 set forth in Schedule 4.11 of the KSHC Disclosure Schedule
as in effect as of the date of execution of the Merger Agreement (without giving
effect to subsequent disclosures on such Schedule after such date and prior to
the Effective Time), (ii) all of the items set forth in Schedule 4.09 of the
KSHC Disclosure Schedule as in effect as of the date of execution of the Merger
Agreement (without giving effect to subsequent disclosures on such Schedule
after such date and prior to the Effective Time) and (iii) all of the items set
forth in Schedule 4.17 of the KSHC Disclosure Schedule as in effect as of the
date of execution of the Merger Agreement (without giving effect to subsequent
disclosures on such Schedule after such date and prior to the Effective Time),
until the aggregate amount of all such Losses exceeds $10 million (the "First
Indemnity Threshold"). All such losses in excess of the First Indemnity
Threshold shall be paid one hundred percent (100%) in full by the KSHC
Shareholders on a percentage basis equal to the percentages set forth opposite
their respective names on Schedule 6.01 until the aggregate amount of all Losses
under this Section 6.01(a) exceeds $40 million (the "Secondary Indemnity
Threshold"), in which event all such Losses in excess of the Second Indemnity
Threshold shall be paid one hundred percent (100%) in full by Parent.
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(b) In addition to the indemnification set forth in Section 6.01(a),
the KSHC Shareholders shall, severally and not jointly, on a percentage basis
equal to the percentages set forth opposite their respective names on Schedule
6.01, indemnify, defend and hold harmless, to the fullest extent permitted under
applicable law, the Parent Indemnitees from and against each Loss (net of all
general reserves and accruals for liabilities that are the subject of
indemnification pursuant to this Section 6.01(b) and set forth as a line item on
the KSHC Closing Date Balance Sheet, insurance proceeds and indemnification
payments from third parties) to the extent arising out of (i) the operations of
any of the KSHC Excluded Entities or any of the KSHC Designated Entities prior
to or after the Closing Date (other than any such Losses to the extent arising
from or based upon the management or operation of any KSHC Excluded Entity or
KSHC Designated Entity (A) prior to the Closing Date, by any KSHC Entity or (B)
on or after the Closing Date, by the Parent or any Subsidiary) and (ii) clause
(A) of paragraph 3 of each of the severance agreements, dated June 9, 1997, as
amended, between ▇▇▇▇▇▇ System, Inc. and each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇.
(c) Promptly after receipt by the Parent of notice of any demand,
claim or circumstance received by Parent on or after the Closing Date that,
with or without the lapse of time, the Parent has reason to believe may result
in any such Losses described in clauses (i) and (ii) of Section 6.01(a) or
Section 6.01(b), Parent shall give notice thereof to each of the KSHC
Shareholders, which notice shall describe such demand, claim or circumstance in
reasonable detail and shall indicate the amount (estimated, if necessary) of
the Losses that have been or may be suffered by Parent. The KSHC Shareholders
shall compromise or defend, by their own counsel, any such demand, claim or
circumstance and all fees and expenses related thereto shall be subject to
Section 6.01(a) or 6.01(b), as applicable. Parent shall cooperate in the
compromise of, or defense against, such demand, claim or circumstance and shall
make available to the KSHC Shareholders and their counsel any books, records or
other documents within its control that are necessary or appropriate for such
compromise or defense.
(d) Parent shall reimburse the KSHC Shareholders, on a percentage
basis equal to the percentages set forth opposite their respective names on
Schedule 6.01, in an amount equal to twenty percent (20%) of all premiums paid
by the KSHC Shareholders in respect of one or more insurance policies providing
coverage up to $10 million in the aggregate for Losses that are subject to
indemnification by the KSHC Shareholders pursuant to Section 6.01(a); provided,
that all such premiums shall be included in computing the First and Second
Indemnity Thresholds; and provided, further, that, the KSHC Shareholders shall
consult with Parent with respect to the terms and conditions of such insurance
policies, including, without limitation, the premiums to be paid with respect
thereto, prior to obtaining any such coverage.
Section 6.02 Certain Indemnification Procedures. Notwithstanding
anything in Section 6.01 to the contrary, Parent shall have the right to
determine the manner of resolution of, and control, conduct and direct any
activities (including but not limited to investigation and remediation
activities) that may result in Losses arising out of the items set forth in
Schedule
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4.17 of the KSHC Disclosure Schedule (clause (iii) of Section 6.01(a));
provided, however, that the KSHC Representative and Parent shall comply with
the following procedures for indemnification of any such Losses resulting from
such activities for any particular matter:
(a) Parent shall notify the KSHC Representative in writing of the action
it proposes to take, describing in reasonable detail the matter to be
investigated, remediated, prevented or complied with, the scope of the work to
be performed and the estimated cost associated with such activities
("Environmental Activity Proposal"). Parent shall provide the KSHC
Representative with (i) copies of all work plans for, and test results, surveys
and other data generated by, the investigations performed by Parent or their
consultants promptly upon the availability thereof, (ii) final and any prior
drafts of all reports, plans and other documents to be filed with any
Governmental Body upon the availability thereof and in any event prior to any
such filing being made, (iii) an opportunity to meet with Parent and their
representatives prior to and following any substantive communications with
Governmental Bodies, and (iv) a timely opportunity to discuss and comment upon
the foregoing and any other proposed determinations or actions relating to the
investigation, testing and remediation of any relevant property and the
reporting thereon with Governmental Bodies.
(b) In the event that the KSHC Representative objects to the Environmental
Activity Proposal in whole or in part, the KSHC Representative shall notify
Parent in writing of its disagreement (and its basis therefor) regarding such
Environmental Activity Proposal and, if the KSHC Representative desires, shall
provide an alternative proposal within 30 calendar days of its receipt of notice
of the Environmental Activity Proposal. Parent and the KSHC Representative shall
thereafter negotiate in good faith in an attempt to reach agreement as to the
disputed Environmental Activity Proposal. In the event that Parent and the KSHC
Representative are unable to resolve the dispute within 20 calendar days after
the Parent's receipt of such written notice, the KSHC Representative or Parent
may provide written notice to the other of its intent to submit the matter to
the Designated Environmental Engineer, which shall resolve such items in dispute
within a 30-calendar day determination period following submission of such items
in dispute to such Designated Environmental Engineer, based on independent
review of (i) written submissions by the KSHC Representative and the Parent and
(ii) any environmental engineering studies or reports prepared in conjunction
with the submission of the Environmental Activity Proposal or the written
notice.
(c) Any review by the Designated Environmental Engineer conducted
pursuant to this Section 6.02 shall be limited to the Environmental Activity
Proposal and resolution of the dispute set forth in the written notice, and the
Designated Environmental Engineer shall have no jurisdiction or authority to
resolve any claims not so related, whether arising by way of asserted rights,
offsets or otherwise. The Designated Environmental Engineer may order that the
Environmental Activity Proposal be implemented or that the KSHC
Representative's alternative proposal as set forth in the written notice be
implemented or that different activities be implemented, so long as the
activity ordered by the Designated Environmental Engineer is consistent with
the Lowest Cost Response and is required by applicable Environmental Laws.
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The Designated Environmental Engineer's decision shall be final and binding on
the KSHC Representative and the Parent. Any award by the Designated
Environmental Engineer shall be enforceable in any court of competent
jurisdiction. The parties hereby consent to such jurisdiction and to entry of
judgment thereon. The costs of dispute resolution by the Designated
Environmental Engineer shall be borne equally by the Parent and the KSHC
Shareholders and as between the KSHC Initial Shareholders, on a percentage
basis equal to the percentages set forth opposite their respective names on
Schedule 6.01.
(d) Notwithstanding anything in this Agreement to the contrary, the
indemnity obligation for Losses arising out of the disclosed items set forth in
Schedule 4.17 of the KSHC Disclosure Schedule shall be limited to activities
required by Environmental Law and the applicable provisions in any KSHC Real
Property Contract or satisfied by implementation or indemnification of the
Lowest Cost Response. Should Parent, at the Parent's sole discretion,
undertake remedial action or such other action that exceeds the requirements of
the Lowest Cost Response, Parent shall bear the incremental costs, if any,
incurred in implementing the more stringent remedy.
(e) The KSHC Representative and Parent shall cooperate with each other
with respect to making claims under (i) any occurrence-based policies written
by third party insurance companies, to the extent such policies were applicable
to the relevant properties prior to the Closing Date, (ii) any acquisition
agreements with third parties, to the extent such agreements are in effect as
of the Closing Date and afford indemnification rights for the benefit of such
entities and (iii) any underground storage tank or similar environmental
reimbursement program, to the extent such programs are available to such
entities at any time after the Closing Date, for reimbursement or contribution
in connection with environmental matters disclosed on Schedule 4.17 of the KSHC
Disclosure Schedule. Such cooperation shall include making all reasonable
claims and demands against such third parties with respect to such
environmental matters and pursuing such claims and demands in a commercially
reasonable manner.
(f) Parent and the KSHC Representative will not initiate or encourage
any action by any third party, including any Governmental Body, which could
reasonably be expected to lead to a claim by such third party with respect to
any environmental matter of the KSHC Shareholders for which the KSHC
Shareholders are responsible pursuant to Section 6.01, except to the extent
required by Environmental Law; provided, however, that nothing herein shall
prevent Parent from conducting and implementing environmental audits in the
ordinary course of business.
(g) Indemnification claimed by the Parent under Section 6.01 is the
exclusive remedy available to the Parent for all Losses arising out of all
matters covered thereby and the Parent waives its rights for relief against the
KSHC Shareholders under any other applicable law.
Section 6.03 Releases; Obligation of the Parent to Indemnify.
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(a) (i) Parent shall use its commercially reasonable efforts to obtain
the release of each of the KSHC Shareholders, within 120 days following the
Closing Date, from any and all guarantees made by such KSHC Shareholder in
connection with (x) any KSHC Assumed Indebtedness and (y) any letters of credit
or similar instruments of any KSHC Entity assumed by the Parent as a result of
the consummation of the KSHC Merger, by providing replacement guarantees,
letters of credit for the account of the Parent or any Subsidiary thereof, or
other reasonable financial assurances.
(ii) Parent shall indemnify, defend and hold harmless, to the fullest
extent permitted under applicable law, each of the KSHC Shareholders from and
against all Losses arising out of (x) any KSHC Assumed Indebtedness and (y) any
letters of credit or similar instruments of any KSHC Entity assumed by the
Parent as a result of the consummation of the KSHC Merger after the Closing
Date.
(iii) Promptly after receipt by any KSHC Shareholder of any demand,
claim or circumstance that, with or without the lapse of time, may result in
any Losses described in Section 6.03(a)(ii), such KSHC Shareholder shall give
notice thereof to the Parent, which notice shall describe such demand, claim or
circumstance in reasonable detail and shall indicate the amount (estimated, if
necessary) of the Losses that have been or may be suffered by such KSHC
Shareholder. The Parent shall compromise or defend, at its own expense and by
its own counsel, any such demand, claim or circumstance, and such KSHC
Shareholder shall cooperate, at the expense of the Parent, in the compromise or
defense thereof. Such KSHC Shareholder shall make available to the Parent and
its counsel any books, records or other documents within its control that are
necessary or appropriate for such compromise or defense.
(iv) Parent shall reimburse the KSHC Shareholders for any fees
relating to letters of credit or similar instruments issued for the account of
any KSHC Entity that any such KSHC Shareholder incurs for any period on or
after the Closing Date, payable in immediately available funds to such KSHC
Shareholder on a quarterly basis within ten business days following the last
day of each March, June, September and December in each applicable year.
(v) Parent shall promptly reimburse ▇▇▇▇ for eighty percent (80%) of
any amount received by KSHC or any Affiliate thereof after the Closing Date
arising out of (a) any tax appeal relating to the Lease, dated November 1,
1983, between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustees of Government
Center Garage Realty Trust, and ▇▇▇▇▇▇ System of Sudbury St., Inc, as amended
by amendment dated as of November 15, 1991, for all time periods on or prior to
December 31, 1996 or (b) that certain pending reimbursement claim against the
City of New York for electric bills paid on behalf of the City of New York by
KSHC or any Affiliate thereof relating to the properties at ▇▇▇▇ Stadium in
Flushing, New York, in each case within ten Business Days of receipt of any
such amount by Parent.
Section 6.04 Releases. Simultaneously with the execution of this
Agreement:
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(a) Each KSHC Shareholder shall execute a release substantially in the
form of Exhibit B hereto.
(b) In addition, ▇▇▇▇▇▇▇▇ shall execute a release substantially in form
of Exhibit C-1 hereto (the "▇▇▇▇▇▇▇▇ Release").
(c) KSHC shall execute a release substantially in the form of Exhibit C-2
hereto ("KSHC Release").
(d) ▇▇▇▇ shall execute a release substantially in the form of Exhibit C-3
hereto ("▇▇▇▇ Release").
Section 6.05 No Other Representations and Warranties. Each party hereto
agrees that it has not made or shall be deemed to have made, any representation
or warranty, express or implied, to any other party hereto or in the case of
the Parent, to any Affiliate or shareholder thereof or any of their respective
partners, members, officers, directors, employees or representatives with
respect to (a) the execution and delivery of this Agreement or the
Transactions, (b) any financial projections heretofore or hereafter delivered
to or made available to any such Persons or their counsel, accountants,
advisors, representatives or Affiliates, and agrees that it has not and will
not rely on such financial projections in connection with its evaluation of any
other party or the Transactions or (c) any information, statement or document
heretofore or hereafter delivered to or made available to any such Persons or
their counsel, accountants, advisors, representatives or Affiliates with
respect to any other party or the businesses, operations or affairs of any
other party, except to the extent and as expressly covered by a representation
and warranty contained in this Agreement, the Merger Agreement, the Lock-Up
Agreement or the other agreements expressly referred to herein or therein.
ARTICLE VII.
SHAREHOLDER REPRESENTATIVES
Section 7.01 KSHC Shareholder Representative.
(a) ▇▇▇▇ shall act as the KSHC Representative (the "KSHC Representative")
in all matters relating to Article III of the Merger Agreement In the event
▇▇▇▇ is unable to serve in such capacity for any reason, a successor KSHC
Representative shall be appointed by ▇▇▇▇ and ▇▇▇▇▇▇▇▇.
(b) The KSHC Representative shall be fully authorized to take any action
(or to determine to take no action) with respect to all disputes, and all other
notices and communications relating to Article III of the Merger Agreement in
the manner set forth therein as the KSHC Representative then serving hereunder
may deem appropriate, including, without limitation, the institution or defense
of litigation on behalf of any KSHC Shareholder and the
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settlement or compromise of any dispute or controversy. The KSHC Representative
shall have no duties or obligations hereunder except those specifically set
forth herein and such duties and obligations shall be determined solely by
Article III of the Merger Agreement. In connection with the duties hereunder,
the KSHC Representative, in his capacity as such, shall be protected in acting
or refraining from acting upon any written notice, request, consent,
certificate, order, affidavit, letter, telegram or other document furnished in
connection with Article III of the Merger Agreement and believed by the KSHC
Representative to be genuine and to have been signed or sent by the proper
party or parties and the KSHC Representative shall not be liable for anything
the KSHC Representative may do or refrain from doing in connection with his
duties as the KSHC Representative except as a result of his own gross
negligence, willful misconduct or bad faith. The KSHC Representative may, at
his expense, consult counsel and shall be protected in respect of any action,
claim or proceeding brought against the KSHC Representative by another party
hereto if the KSHC Representative took or omitted taking any action in good
faith on the advice of such counsel.
(c) In connection with the payment of and KSHC Post Closing Adjustment
Consideration which is finally determined to be due and owing from the Parent to
▇▇▇▇, the KSHC Representative (in the event the KSHC Representative is a Person
other that ▇▇▇▇) shall provide written notification to ▇▇▇▇ of the amount due
▇▇▇▇ and shall request in writing that the Parent pay to ▇▇▇▇ the amount
attributable to him pursuant to Article III of the Merger Agreement. In the
event ▇▇▇▇ gives the KSHC Representative (in the event the KSHC Representative
is a person other than ▇▇▇▇) notice that the Parent has failed to pay any KSHC
Post Closing Adjustment Consideration which is due, in accordance with the terms
of Article III of the Merger Agreement, the KSHC Representative shall use
commercially reasonable efforts to assist ▇▇▇▇ in enforcing his rights under
Article III of the Merger Agreement; provided, however, in no event shall the
KSHC Representative be required to incur any expense or obligation or waive any
of its rights in connection with such assistance. Nothing contained herein is
intended or shall be construed to constitute a guarantee by the KSHC
Representative of collection or payment, with respect to any KSHC Post Closing
Adjustment Consideration due from Parent.
(d) In connection with the payment of any KSHC Post Closing Adjustment
Consideration which is finally determined to be due and owing from ▇▇▇▇ to the
Parent, the KSHC Representative (in the event the KSHC Representative is a
Person other than ▇▇▇▇) shall provide written notification to ▇▇▇▇ of the
amount of such KSHC Post Closing Adjustment Consideration and shall request in
writing that ▇▇▇▇ pay such amount to Parent. Nothing contained herein is
intended or shall be construed to constitute a guarantee by the KSHC
Representative of collection, payment, or otherwise with respect to any KSHC
Post Closing Adjustment Consideration due to the Parent.
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ARTICLE VIII.
MISCELLANEOUS
Section 8.01 Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out
and comply with all of their obligations under this Agreement.
Section 8.02 Effectiveness. It is a condition precedent to the
effectiveness of this Agreement that the Transactions shall have been
consummated.
Section 8.03 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to either or both of the KSHC Shareholders, to:
c/▇ ▇▇▇▇, Ettin, Levine, Kurzweil & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇, Esq.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Flattau & Klimpl
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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(b) If to the Parent or the Carell Shareholders, to:
Central Parking Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Monroe J. Carell, Jr.
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ & Manner, P.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ Manner, Esq.
Section 8.04 Legends. Each KSHC Shareholder and Parent shall cause any
and all certificates evidencing the shares of Common Stock acquired by each
KSHC Shareholder after the date hereof to bear the following legends:
(a) for so long as such shares shall be subject to the transfer
restrictions set forth in Article III:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
WHETHER BY SALE, ASSIGNMENT, PLEDGE, ENCUMBRANCE, GIFT, REQUEST,
APPOINTMENT OR OTHERWISE, EXCEPT IN CERTAIN CIRCUMSTANCES PURSUANT TO
AND SUBJECT TO THAT CERTAIN SHAREHOLDERS' AGREEMENT AND AGREEMENT NOT
TO COMPETE AMONG CENTRAL PARKING CORPORATION AND THE SHAREHOLDERS
NAMED THEREIN. A COPY OF SUCH AGREEMENT IS ON FILE WITH THE SECRETARY
OF THE PARENT."
(b) for so long as required by law:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION TO THE
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REGISTRATION REQUIREMENTS OF SUCH ACT OR SUCH LAWS."
Section 8.05 Fees and Expenses. Other than as expressly provided herein,
all fees and expenses incurred in connection with the transactions contemplated
hereby shall be paid by the party incurring such expenses.
Section 8.06 Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing, signed by each of the parties hereto.
Section 8.07 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of and be enforceable by the parties hereto
and their respective successors and assigns, including without limitation, in
the case of any corporate party hereto any corporate successor by merger or
otherwise. Except with the prior written consent of the other parties hereto or
as otherwise provided herein, no party may assign any of its rights or
obligations hereunder.
Section 8.08 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written
and oral, among the parties, or any of them, with respect to the subject matter
hereof and except as otherwise expressly provided herein. There are no
representations, warranties or covenants by the parties hereto relating to such
subject matter other than those expressly set forth in this Agreement.
Section 8.09 Severability. If any term or other provisions of this
Agreement is invalid, illegal or incapable or being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.
Section 8.10 Enforcement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms. It is accordingly
agreed that the parties hereto shall be entitled to specific performance of the
terms hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
Section 8.11 Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law
or in equity shall be cumulative
20
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and not alternative, and the exercise or beginning of the exercise of any
thereof by any party hereto shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
Section 8.12 No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy or
to demand such compliance.
Section 8.13 No Third Party Beneficiaries. This Agreement is not intended
to be for the benefit of and shall not be enforceable by any person or entity
who or which is not a party hereto.
Section 8.14 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to any principles of conflicts of law that might indicate the applicability of
the laws of any jurisdiction.
Section 8.15 Consent to Jurisdiction and Service of Process. EACH OF THE
PARTIES HERETO CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES
THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY MAY BE LITIGATED IN SUCH COURTS. EACH OF THE PARTIES HERETO
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE PARTY AT THE ADDRESS
SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE 15 DAYS AFTER
SUCH MAILING, NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF
ANY PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND
DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN
JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST ANY OF THE
OTHER PARTIES HERETO IN SUCH OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE
PERMITTED BY ANY APPLICABLE LAW.
21
25
Section 8.16 Waiver of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY
AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FOR ANY
COUNTERCLAIM THEREIN.
Section 8.17 Inspection. For so long as this Agreement shall remain in
effect, this Agreement shall be made available for inspection by any KSHC
Shareholder at the principal executive offices of Parent.
Section 8.18 Name Headings. The name assigned to this Agreement and the
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Section 8.19 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Each counterpart may
consist of a number of copies each signed by less than all, but together signed
by all, the parties hereto.
22
26
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CENTRAL PARKING CORPORATION
By: /s/ Monroe Carell
-------------------------------------
Name: Monroe Carell
Title: Chairman & C.E.O.
/s/ MONROE J. CARELL, JR.
----------------------------------------
MONROE J. CARELL, JR.
----------------------------------------
▇▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
23
27
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CENTRAL PARKING CORPORATION
By: /s/
--------------------------------
Name:
Title:
-----------------------------------
MONROE J. CARELL, JR.
/s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
24
28
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
CENTRAL PARKING CORPORATION
By:
--------------------------------
Name:
Title:
------------------------------------
MONROE J. CARELL, JR.
------------------------------------
▇▇▇▇▇ ▇▇▇▇
/S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
25
29
SCHEDULE I
COMMON STOCK BENEFICIAL OWNERSHIP
NAME NO. OF SHARES
---- -------------
▇▇▇▇▇ ▇▇▇▇ 667,779
▇▇▇▇ ▇▇▇▇▇▇▇▇ 214,643 (5,806 of which were transferred to
the Jewish Federation of Southern New
Jersey (a charity designated by ▇▇▇▇) on the
Closing Date.)
26
30
SCHEDULE 1.01
(1) Silou Corp.
(2) Lousil Corp.
(3) ▇▇▇▇▇▇▇▇ Louisville Associates L.P.
(4) ▇▇▇▇▇▇▇▇ Louisville Inc.
(5) ▇▇▇▇▇▇▇▇ Silver Towers L.P.
(6) ▇▇▇▇▇▇▇▇ Silver Towers Inc.
(7) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates L.P.
(8) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Inc.
(9) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Partnership
(10) Ztak Aviation, Inc.
(11) SK Travel L.L.C.
27
31
EXHIBIT A
Form of Joinder Agreement
SCHEDULE 6.01
Percentage Allocation Schedule
▇▇▇▇ 83.75
▇▇▇▇▇▇▇▇ 16.25
28
32
EXHIBIT A
Form of Joinder Agreement
33
EXHIBIT A
TO SHAREHOLDERS' AGREEMENT
Form of
JOINDER AGREEMENT
FOR PERMITTED TRANSFEREES
Central Parking Corporation
and the Other Persons Parties to
the Shareholders' Agreement (as
defined herein)
Ladies & Gentlemen:
In consideration of the transfer to the undersigned of [DESCRIBE SECURITY
BEING TRANSFERRED] of Central Parking Corporation, a Tennessee corporation (the
"Parent"), the undersigned represents that [HE] [SHE] [IT] shall become a party
to and a Permitted Transferee as defined in that certain Shareholders'
Agreement, dated as of __________, 1998, (as such agreement may have been
amended, supplemented or modified from time to time (the "Agreement"), among the
Parent and the persons named therein, and as a Permitted Transferee shall be
fully bound by, and subject to, all of the covenants, terms and conditions of
the Agreement that are applicable to the undersigned's transferor, as though an
original party thereto and shall be deemed a [KSHC SHAREHOLDER] [CARELL
SHAREHOLDER] for all purposes thereof.
Executed as of the ___ day of ________, 199_.
SIGNATORY: /s/
-------------------------------
Address:
-------------------------------
-------------------------------
A-1
34
ACKNOWLEDGED AND ACCEPTED:
CENTRAL PARKING CORPORATION
By: /s/
-------------------------
Name
Title
----------------------------
MONROE J. CARELL, JR.
----------------------------
▇▇▇▇▇ ▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
A-2
35
EXHIBIT B
KSHC Shareholder Release
36
EXHIBIT B
TO SHAREHOLDERS' AGREEMENT
RELEASE OF CLAIMS
In consideration of $1.00 (the receipt and sufficiency of which is hereby
acknowledged), the undersigned (the "KSHC Releasing Shareholder"), in his
capacity as shareholder of ▇▇▇▇▇▇ System Holding Corp. (the "Parent"), for
himself and his successors and assigns, hereby releases, waives, discharges and
covenants not to ▇▇▇ each present or former officer or director of the Parent,
any of its present or former subsidiaries or any of its successors and assigns
by operation of law or otherwise ("KSHC Released Persons") from and against any
and all claims, actions, causes of action, suits and demands whatsoever, known
or unknown, fixed, conditional or contingent, in law or in equity, which the
KSHC Releasing Shareholder, ever had, now has or hereafter can, shall or may
have against any of the KSHC Released Persons arising out of or based upon (a)
any indemnity obligation of the Parent to the KSHC Releasing Shareholder
resulting from facts or circumstances existing on or before the Closing Date of
any kind whatsoever and (b) the consummation of the Transactions by the Parent
or by any other shareholder thereof. Capitalized terms used herein and not
otherwise defined herein shall have the meanings ascribed to them in the
Acquisition Agreement and Plan of Merger, dated as of November 7, 1997, among
the parties named herein.
/s/
-------------------------------
[KSHC RELEASING SHAREHOLDER]
Dated:____________, 1998.
37
EXHIBIT C-1
▇▇▇▇▇▇▇▇ Release
38
EXHIBIT C-1
TO SHAREHOLDER'S AGREEMENT
▇▇▇▇▇▇▇▇ RELEASE
In consideration for the payment of the consideration to the undersigned
pursuant to the ▇▇▇▇▇▇▇▇ Stock Purchase Agreement, the undersigned hereby
releases, waives and discharges, covenants not to ▇▇▇ and agrees to hold
harmless KSHC or any of its present and former Affiliates, Subsidiaries,
shareholders, employees, directors, officers, representatives, agents,
successors or assigns from all actions, causes of action, suits, liabilities,
claims, obligations and rights whatsoever, known or unknown, fixed, conditional
or contingent, in law or in equity, that the undersigned or any of his
successors or assigns ever had, now has or hereafter can, shall or may have for
any matters based upon or arising out of (a) the Employment and Equity
Agreement, dated December 19, 1994, between ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ System, Inc.,
(b) Employment Agreement dated May 17, 1991, between KSHC and ▇▇▇▇▇▇▇▇, (c)
Stock Purchase Agreement, dated May 17, 1991, between ▇▇▇▇ and ▇▇▇▇▇▇▇▇, (d) the
Shareholders' Agreement, dated May 17, 1991, among ▇▇▇▇, ▇▇▇▇▇▇▇▇ and KSHC, (e)
Agreement between ▇▇▇▇▇▇ System, Inc. and ▇▇▇▇▇▇▇▇ relating to deferred
compensation for the years 1995 and 1996, (f) any promissory note issued by KSHC
or any of its subsidiaries in favor of ▇▇▇▇▇▇▇▇, or (g) any similar agreement
among ▇▇▇▇▇▇▇▇, ▇▇▇▇ and/or KSHC and its consolidated Subsidiaries, and any and
all claims, costs, expenses and attorneys' fees with respect to any of the
foregoing. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Acquisition Agreement and Plan of
Merger, dated as of November 7, 1997, among the parties named therein.
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Dated: ____________, 1998.
39
EXHIBIT C-2
KSHC Release
40
EXHIBIT C-2
TO SHAREHOLDERS' AGREEMENT
KSHC RELEASE
In consideration of $1.00 (the receipt and sufficiency of which is hereby
acknowledged) the undersigned, on behalf of itself and its subsidiaries, hereby
releases, waives and discharges, covenants not to ▇▇▇ and agrees to hold
harmless ▇▇▇▇ or ▇▇▇▇▇▇▇▇, as the case may be, or any of their respective
representatives, agents, successors or assigns from all actions, causes of
action, suits, liabilities, claims, obligations and rights whatsoever, known or
unknown, fixed, conditional or contingent, in law or in equity, that the
undersigned or any of his successors or assigns ever had, now has or hereafter
can, shall or may have for any matters based upon or arising out of (a) the
Employment and Equity Agreement, dated December 19, 1994, between ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ System, Inc., (b) Employment Agreement dated May 17, 1991, between KSHC
and ▇▇▇▇▇▇▇▇, (c) Stock Purchase Agreement, dated May 17, 1991, between ▇▇▇▇ and
▇▇▇▇▇▇▇▇, (d) the Shareholders' Agreement, dated May 17, 1991, among ▇▇▇▇,
▇▇▇▇▇▇▇▇ and KSHC, (e) Agreement between ▇▇▇▇▇▇ System, Inc. and ▇▇▇▇▇▇▇▇
relating to deferred compensation for the years 1995 and 1996, (f) any
promissory note issued by KSHC or any of its subsidiaries in favor of ▇▇▇▇▇▇▇▇,
or (g) any similar agreement among ▇▇▇▇▇▇▇▇, ▇▇▇▇ and/or KSHC and its
consolidated Subsidiaries, and any and all claims, costs, expenses and
attorneys' fees with respect to any of the foregoing. Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Acquisition Agreement and Plan of Merger, dated as of November 7, 1997,
among the parties named therein.
▇▇▇▇▇▇ SYSTEM HOLDING CORP.
By: /s/
-----------------------
Name:
Title:
Dated: ___________, 1998.
41
EXHIBIT C-3
▇▇▇▇ Release
42
EXHIBIT C-3
TO SHAREHOLDERS' AGREEMENT
▇▇▇▇ RELEASE
In consideration for the payment of the consideration to the undersigned
pursuant to the Merger Agreement, the undersigned hereby releases, waives and
discharges, covenants not to ▇▇▇ and agrees to hold harmless KSHC or any of its
present and former Affiliates, Subsidiaries, Shareholders, employees, directors,
officers, representatives, agents, successors or assigns from all actions,
causes of action, suits, liabilities, claims, obligations and rights whatsoever,
known or unknown, fixed, conditional or contingent, in law or in equity, that
the undersigned or any of his successors or assigns ever had, now has or
hereafter can, shall or may have for any matters based upon or arising out of
(a) the Stock Purchase Agreement, dated May 17, 1991, between ▇▇▇▇ and ▇▇▇▇▇▇▇▇,
(b) the Shareholders' Agreement, dated May 17, 1991, among ▇▇▇▇, ▇▇▇▇▇▇▇▇ and
KSHC or (c) any similar agreement amount ▇▇▇▇▇▇▇▇, ▇▇▇▇ and/or KSHC and its
consolidated Subsidiaries, and any and all claims, costs, expenses and
attorneys' fees with respect to any of the foregoing. Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Acquisition Agreement and Plan of Merger, dated as of November 7, 1997,
among the parties named therein.
----------------------------------
▇▇▇▇▇ ▇▇▇▇
Dated: _________ __, 1998.