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EXHIBIT 10.7
FORM OF EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made this day of March,
2000, by and between Imperial Parking Corporation, a Delaware corporation with
its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual residing at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("Executive").
WHEREAS, the Company desires to retain the services of Executive as Senior
Vice President--Operations and Executive desires to serve in that capacity.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and undertakings stated herein, Executive and the Company hereby agree as
follows.
1. PERIOD OF EMPLOYMENT. Subject to all of the terms and conditions hereof
including without limitation, the termination provisions of this Agreement, the
term of this Agreement shall commence on the date on which is consummated the
distribution (the "Distribution") by First Union Real Estate Equity and Mortgage
Investments ("First Union") of substantially all of the Company's common stock,
par value $.01 per share, to the beneficiaries of First Union (the "Commencement
Date") and end on the fifth anniversary thereof (sometimes referred to as the
"Term" or the "Employment Period"). By executing this Agreement, the Company and
Executive represent that neither (i) the negotiation or execution of this
Agreement nor (ii) the performance of their respective duties and obligations
hereunder, shall violate any other agreement or law to which such parties are
bound or subject.
2. DUTIES AND POWERS OF EXECUTIVE. Subject to all of the terms and
conditions hereof, the Company shall employ Executive as Senior Vice
President--Operations of the Company. During the Employment Period, Executive
shall have these powers and duties normally associated with the position of
Senior Vice President--Operations and such other powers and duties as may be
prescribed by the Company; provided, that, such powers and duties are consistent
with Executive's position. During the Employment Period, Executive shall
exclusively devote his professional and business time (other than absences due
to illness or vacation) to Executive's duties hereunder, except that Executive
may serve on boards of directors or advisory boards of charitable organizations
for reasonable amounts of time and make reasonable personal investments;
provided, that, such activities do not interfere with his services to the
Company.
3. COMPENSATION.
(a) During the Employment Period, the Company shall pay Executive an
annual base compensation of $237,000 (U.S.) in approximately equal
installments in accordance with the Company's customary payroll practices
("Base Salary"). During the Employment Period, Executive's Base Salary
shall not be reduced.
(b) For every fiscal year during the Employment Period, Executive
shall be paid an annual bonus no later than sixty (60) days following the
close of the Company's fiscal year equal to 1.75% of the increase in the
Company's EBITDA over the Company's
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EBITDA for 1998 ("1998 EBITDA"), calculated in accordance with generally
accepted accounting principles (the "Bonus"). For purposes of calculating
EBITDA, all nonrecurring extraordinary expenses and any impact on EBITDA of
any acquisitions or dispositions shall be excluded. In addition, EBITDA
shall be adjusted to reflect the amount of Company capital (including an
interest charge on such capital at a rate of not more than 10% per annum)
utilized in connection with acquiring, leasing and development of new
Company operated parking facilities.
(c) Stock Options.
(i) Thirty (30) trading days following the Commencement Date, the
Board or the compensation committee of the Board shall cause the Company
to grant Executive a stock option to acquire 21,250 shares of the
Company's common stock which is intended to represent 1.0% of the issued
and outstanding shares of the Company's common stock on a fully diluted
basis (calculated without giving effect to the grant contemplated
hereunder) as of the date of grant (the "Option"). To the extent
necessary to carry out the intended terms of this paragraph (c)(i), the
Option shall be adjusted as is necessary to take into account any change
in the common stock of the Company in a manner consistent with
adjustments made to other option holders and/or shareholders of the
Company generally. In addition, in the event that a rights offering of
the Company's common stock is made by the Company to its shareholders,
Executive shall be entitled to an additional option grant to acquire
1.0% of the shares of common stock issued pursuant to such offering on
the first $30,000,000 raised (the "Additional Option"). The Additional
Option shall be granted under substantial similar terms as those set
forth herein and with an exercise price per share equal to the fair
market value per share of the common stock upon the date of grant. The
Additional Option shall vest (or be vested) at the same time (and in the
same proportion) as the Option (if partially unvested) or shall be fully
vested if the Option is fully vested.
(ii) The Option described in paragraph (i) above shall be granted
subject to the following terms and conditions: (A) except as provided
below, the Option shall be granted under and subject to the Company's
stock option plan; (B) the exercise price per share of each Option shall
be equal to the greater of the (1) the last reported sales price of a
share of the common stock on the day which is the thirtieth (30th)
trading date following the Commencement Date or (2) the average closing
price of a share of common stock for the ten (10) day trading period
ending on the date which is the thirtieth (30th) trading date following
the Commencement Date, in either case, as reported on such principal
trading market for the Company's common stock where quotes are readily
available; provided, that, the exercise price of the Option shall be
adjusted at least monthly, but not below zero, by an increase of 0.8333%
per month (less all dividends and distributions (including non-cash
distributions) made to common shareholders on a per share basis) (C) the
Option shall vest and be exercisable as to 2.0833% of the shares subject
thereto on each of the forty-eight (48) monthly anniversaries of the
grant date; (D) unless earlier terminated or forfeited, the Option shall
be exercisable for the ten (10) year period following the date of grant;
(E) the Option shall become immediately vested and exercisable in full
upon a Change in Control (as defined below) or upon Executive's
termination of employment by the Company without Cause (as defined
below) or due to his death or Disability (as defined below) or upon
Executive's termination of employment by him for Good Reason (as defined
below); (F) the Option shall provide that upon Executive's termination
of
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employment due to his death, Disability, by the Company without Cause or
by Executive for Good Reason, such Option will remain exercisable by
Executive (or his beneficiaries or estate in the event of his death) for
six (6) months following his termination of employment and in the event
Executive's employment is terminated for any other reason, ninety (90)
days following such termination of employment, but, in either case, in
no event beyond the ten (10) year term and (G) the Option shall be
evidenced by, and subject to, a stock option agreement whose terms and
conditions are consistent with the terms hereof. In addition, the
Company shall take all action necessary such that the shares of common
stock issuable upon exercise of the Option are registered on Form S-4 or
Form S-8 (or any successor or other appropriate forms) to the extent
such shares are eligible for registration thereon.
4. BENEFITS.
(a) During the Employment Period, the Company shall provide to
Executive all such health insurance, dental insurance, life insurance,
disability insurance, retirement savings, pension, and other fringe
benefits as are provided from time to time by the Company to its senior
executives generally, in accordance with the Company's general benefits
practices then in effect, in addition to any fringe benefits provided for
expressly in this Agreement without regard to eligibility restrictions
contained therein.
(b) During the Employment Period and upon appropriate documentation,
the Company shall reimburse Executive for all reasonable business and
travel expenses incurred by Executive in performing his duties hereunder in
accordance with the Company's reimbursement policy for senior executive
officers.
(c) During the Employment Period, Executive shall be entitled to a
minimum of three (3) weeks paid vacation per year and such other paid
absences whether for holidays, sick days, personal time or any similar
purposes in accordance with the plans, policies and practices of the
Company in effect from time to time for senior executive officers
generally; provided, however, if less than three (3) weeks vacation is
taken by Executive in any year, the balance of vacation time may be taken
in whole or in part in any later year or years in addition to that year's
vacation time.
(d) During the Employment Period, the Company shall provide Executive,
at the Company's sole cost and expense, a new midsize automobile to be
selected by Executive which shall be replaced by the Company at the end of
its lease term which shall not exceed three (3) years. In addition to the
aggregate leasing or purchase costs, the Company shall bear all expenses
relating to the automobile, including, but not limited to insurance, fuel,
garaging and maintenance for such vehicle; provided, that, such amounts
will not exceed $10,000 (U.S.) annually. Upon termination of Executive's
employment for any reason, Executive may purchase from the Company or its
agent, at its depreciated value, the automobile or assume any lease
obligations with respect thereto.
(e) By March 31 of each year during the Employment Period, the Company
shall pay to Executive an additional cash payment to make Executive whole
for any additional taxes owed by Executive on all cash and non-cash
benefits provided under this Agreement (including this clause (e)) due to
residing in Vancouver, British Columbia and being
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subject to Canadian national and local taxes at any time during such year
over such obligations if Executive had resided solely in Cincinnati, Ohio
during such year.
(f) If the Company requires that Executive relocate and Executive
agrees to such relocation, prior to the date Executive relocates his family
to such region or area so requested by the Company (the "Metro Area"), the
Company shall reimburse Executive, on an after tax basis, (i) the cost of
temporary housing for a period of up to one year for a furnished
one-bedroom apartment in a first class rental building located within the
Metro Area and (ii) for a period of one year, the cost of reasonable travel
expenses for Executive and his family to visit the Metro Area once.
(g) If Executive relocates his family to the Metro Area as provided in
clause (g) above, the Company shall reimburse Executive, on an after tax
basis, for all relocation expenses incurred in connection with Executive's
move, including without limitation, reasonable costs for Executive and his
family to visit the Metro Area once in order to procure a residence
(including, related travel expenses), reasonable transportation costs for
Executive and his family to move to the Metro Area, all real estate
brokerage and related fees, closing costs, and legal expenses incurred in
connection with the purchase or leasing of a new home and sale of
Executive's current residence, the actual cost of moving Executive's and
his family's household goods and personal effects. In addition, the Company
shall reimburse Executive, on an after tax basis, for any equity losses
Executive incurred on the sale of his current residence. In addition,
Company shall reimburse Executive, on an after tax basis, the cost of
temporary housing (not to exceed three (3) months) suitable for Executive
and his family during the period from his family's relocation to the Metro
Area until the closing date on the purchase or lease of the family's
permanent residence.
(i) As soon as administratively feasible following the execution of
this Agreement, the Company shall pay directly to Executive's legal
counsel(s) the reasonable attorneys' fees and costs that Executive incurred
in connection with the negotiation and preparation of this Agreement,
provided that such legal fees do not exceed $5,000 (U.S.), such cap to be
exclusive of any costs (including cost associated with Canadian counsel
retained by Executive's U.S. counsel).
5. TERMINATION. Executive's employment by the Company hereunder shall end
immediately upon:
(a) Receipt by the Company of Executive's resignation from the Company
on no less than forty-five (45) days prior written notice;
(b) Executive's receipt of written notice from the Company of
termination of Executive's employment on no less than forty-five (45) days
prior written notice;
(c) Executive's death or Disability; or
(d) Expiration of the Employment Period, and the date on which any of
the foregoing terminations shall occur shall be the "Termination Date"
hereunder.
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6. PAYMENTS UPON TERMINATION.
(a) If Executive's employment hereunder ends by reason of:
(i) Resignation by Executive without Good Reason;
(ii) The termination by the Company for Cause; or
(iii) Death;
then the Company shall pay Executive's Base Salary through the Termination Date,
accrued, but unpaid Bonus for completed performance periods, and any other
payments or benefits due to Executive under any plan or policy of the Company or
as otherwise set forth in this Agreement. In addition, if Executive's employment
is terminated due to his death, then the Company shall pay to his beneficiaries
or estate, as the case may be, a pro-rated Bonus for the year of termination.
(b) If Executive's employment hereunder ends by reason of Disability,
then the Company shall continue to pay Executive's Base Salary and
pro-rated Bonus for six (6) months offset by any payments Executive should
receive under a long-term disability plan maintained by the Company or its
affiliates. In addition, Executive shall be paid any accrued, but unpaid
Bonus for completed performance periods and any other payments or benefits
due to Executive under any plan or policy of the Company or as otherwise
set forth in this Agreement including any benefits that Executive may be
entitled to under any disability insurance maintained for the benefit of
Executive during the term of his employment.
(c) If Executive's employment hereunder ends by reason of:
(i) Termination by the Company without Cause, or
(ii) Resignation by Executive for Good Reason
then the Company shall, within 15 days after the Termination Date, pay Executive
a lump sum payment in cash equal to two times the sum of (i) his then annual
Base Salary and (ii) his annual Bonus paid for the year prior to the year his
termination, but in no event shall the sum of Base Salary and annual Bonus be
less than $237,000 (U.S.) for this purpose ("Severance"), together with any
other amounts that he is owed under any incentive plans or other benefit plans
(including, without limitation, severance or bonus plans) in which he is then
participating and any amounts that may become due under Section 4(e) for the
year of termination, taken into account the Severance. In addition, the Company
shall continue to provide Executive and his family with fully paid health and
dental insurance coverage for a period of two years following such termination.
(d) Termination by the Company for Cause shall mean termination for:
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(i) An act or acts of dishonesty or fraud, knowingly and
intentionally undertaken by Executive, and intended to result in
enrichment of Executive at the expense of the Company;
(ii) Failure to perform the duties and obligations of Executive's
employment which are willful and deliberate on Executive's part and
which are not remedied in a reasonable period of time after receipt of
written notice from the Company;
(iii) The final conviction of Executive of, or plea by Executive of
guilty or nolo contendere to, a felony involving moral turpitude; or
(iv) A breach of any material provision of this Agreement which
Executive has failed to cure within thirty (30) days of written notice
thereof by the Company.
For purposes of this paragraph, no act by Executive shall be considered
"willful" or "intentional" unless committed in bad faith or without a reasonable
belief that the act or omission was in the best interests of the Company. Cause
shall not exist under this paragraph unless and until the Company has delivered
to Executive a copy of a resolution duly adopted by a majority of the Board
(excluding Executive for purposes of determining such majority) at a meeting of
the Board called and held for such purpose (after reasonable (but in no event
less than twenty (20) days) notice to Executive and an opportunity for
Executive, together with the counsel, to be heard before the Board), finding
that in the good faith opinion of the Board, Executive was guilty of the conduct
set forth in this paragraph and specifying the particulars thereof in detail.
This shall not prevent Executive from challenging in any court of competent
jurisdiction the Board's determination that Cause exists.
(e) Good Reason for resignation by Executive shall mean resignation
because of:
(i) a voluntary termination of employment by Executive that occurs
within twelve (12) months following the first anniversary of a Change in
Control (as defined below);
(ii) without the express written consent of Executive, the
assignment to Executive of duties materially adverse and inconsistent in
any substantial respect with Executive's position, authority and
responsibilities at the Company or any other material change in
authority;
(iii) any material failure by the Company to comply with the
provisions of this Agreement other than any failure remedied by the
Company, within thirty (30) days following receipt of notice thereof
given by Executive; or
(iv) any failure of the Company to pay Executive his Base Salary
when otherwise due or any action taken by the Company or the Company to
reduce such
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Base Salary, other than an inadvertent failure which is immediately
remedied by the Company after notice thereof given by Executive.
(f) Change of Control shall mean the occurrence of one or more of the
following:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
"Person" (as the term person is used for purposes of Section 13(d) or
14(d) of the Securities Exchange Act of 1934, as amended (the " 1934
Act")) immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the ▇▇▇▇ ▇▇▇) of
thirty-five percent (35%) or more of the combined voting power of the
Company's then outstanding Voting Securities; provided, however, that in
determining whether a Change in Control has occurred, Voting Securities
which are acquired in a "Non-Control Acquisition" (as hereinafter
defined) shall not constitute an acquisition which would cause a Change
in Control. A "Non-Control Acquisition" shall mean an acquisition by (1)
an employee benefit plan (or a trust forming a part thereof) maintained
by (x) the Company or any of its affiliates or (y) any corporation or
other Person of which a majority of its voting power or its equity
securities or equity interest is owned directly or indirectly by the
Company (a "Subsidiary"), (2) the Company or any of its affiliates or
(3) any Person in connection with a "Non-Control Transaction" (as
defined below).
(ii) The individuals who are members of the Board on the
Commencement Date (the then "Incumbent Board"), cease for any reason to
constitute at least majority of the Board; provided, however, that if
the election, or nomination for election by the Company's stockholders,
of any new director was approved by a vote of at least two-thirds of the
then Incumbent Board, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; provided,
further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result
of either an actual or threatened "Election Contest" (as described in
Rule 14a-II promulgated under the ▇▇▇▇ ▇▇▇) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board (a "Proxy Contest") including by reason of
any agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(iii) The consummation of-
(a) A merger, consolidation or reorganization involving the
Company, unless
1. the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or indirectly,
immediately following such merger, consolidation or reorganization,
at least sixty percent of the combined voting power of the
outstanding Voting Securities of the corporation resulting from such
merger or consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership
of the Voting Securities immediately before such merger,
consolidation or reorganization, and
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2. the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least a
majority of the members of the board of directors of the Surviving
Corporation or a corporation beneficially owning, directly or
indirectly, a majority of the Voting Securities of the Surviving
Corporation, and
3. no Person (other than the Company, any Subsidiary, any
employee benefit plan (or any trust forming a part thereof)
maintained by the Company, the Surviving Corporation or any
Subsidiary, or any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership of
thirty-five percent (35%) or more of the then outstanding Voting
Securities) owns, directly or indirectly, thirty percent or more of
the combined voting power of the Surviving Corporation's then
outstanding voting securities (a transaction described in clauses 1.
through 3. shall herein be referred to as a "Non-Control
Transaction"); or
(b) A complete liquidation or dissolution of the Company; or
(c) The sale or other disposition of all or substantially all of the
assets of the Company to any Person.
A Change in Control shall not be deemed to occur solely because any Person (the
"Subject Person") acquired Beneficial Ownership of more than the permitted
amount of the outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of Voting
Securities outstanding, increases the proportional number of shares Beneficially
Owned by the Subject Person, provided that if a Change in Control would occur
(but for the operation of this sentence) as a result of the acquisition of
Voting Securities by the Company, and after such share acquisition by the
Company, the Subject Person becomes the Beneficial Owner of any additional
Voting Securities which increases the percentage of the then outstanding Voting
Securities Beneficially Owned by the Subject Person, then a Change in Control
shall occur. In addition, notwithstanding anything contained in this Agreement
to the contrary, if Executive's employment is terminated prior to a Change in
Control and Executive reasonably demonstrates that such termination (i) was at
the request of a third party who has indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who effectuates a Change
in Control (a "Third Party") or (ii) otherwise occurred in connection with, or
in anticipation of, a Change in Control which actually occurs, then for all
purposes of this Agreement, the date of a Change in Control with respect to
Executive shall mean the date immediately prior to the date of such termination
of the Executive's employment.
Notwithstanding the foregoing, the consummation of the Distribution shall not be
a Change in Control for purposes of this Agreement.
(g) Disability means the determination by a physician mutually
agreeable to the Company and Executive that Executive is unable to perform
Executive's duties hereunder by reason of illness or other physical or
mental impairment or condition for 182 days in any 365 day period.
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(h) In the event that any payment or benefit made to Executive
pursuant to this Agreement or otherwise (the "Payments") becomes subject to
an excise taxes ("Excise Tax") under Section 4999 of the Internal Revenue
Code of 1986, as amended (the "Code"), then the amounts payable to
Executive under this Agreement shall be the greater of (A) the Payments, if
the result of subtracting the Excise Tax from the Payments is more than the
Safe Harbor Cap and (B) the Payments, reduced to the maximum amount as will
result in no portion of the Payments being subject to the Excise Tax (the
"Safe Harbor Cap"). For purposes of reducing the Payments to the Safe
Harbor Cap, only amounts payable to Executive under this Agreement (and no
other Payments) shall be reduced, unless consented to by Executive. The
determination of amounts required to be paid under this Section 6(h) shall
be made by an independent auditor selected and paid by the Company. Such
independent auditor shall be a nationally recognized accounting firm used
by the Company to audit its financial statements.
7. CONFIDENTIALITY; NON-COMPETITION; AND NON-SOLICITATION.
(a) Executive shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data
relating to the Company or its affiliates ("Confidential Information"),
which shall have been obtained by Executive during Executive's employment
by the Company and which shall not be or become public knowledge (other
than by acts by Executive or representatives of Executive in violation of
this Agreement). After termination of Executive's employment with the
Company, Executive shall not, without the prior written consent of the
Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone
other than the Company and those designated by it.
(b) In consideration of the benefits to be provided to Executive
hereunder, Executive covenants that he will not, without the prior written
consent of the Company, during the Employment Period and the twelve (12)
month period following his termination of employment for any reason (the
"Restriction Period") engage in any way, directly or indirectly, in the
Business (as defined below) of the Company anywhere within Canada OR
LOCATIONS IN THE U.S. IN WHICH THE COMPANY IS CONDUCTING BUSINESS AS OF THE
EXECUTIVE'S DATE OF TERMINATION,other than as an employee of the Company.
For purposes of this Section 7, Business means all activities of the
Company relating to (i) acquiring, owning, leasing, managing or operating
parking facilities; (ii) providing consulting services in connection with
the development and operation of parking facilities; (iii) manufacturing,
assembling, selling and distributing parking meters and parking facility
operation and control equipment; and (iv) printing and selling parking
tickets. Notwithstanding any other provision contained herein, Executive
shall not be deemed to have breached this covenant if he engages in the
Business with any Canadian entity outside of Canada.
(c) Executive hereby covenants and agrees that, at all times during
the Restriction Period, Executive shall not employ or seek to employ any
person employed during such period by the Company, or otherwise encourage
or entice such person or entity to leave such employment.
8. NO SET-OFF. The Company's obligations to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder shall not
be affected by
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any circumstances, including, without limitation, any set-off, counterclaim,
recoupment, or other right which the Company or the Company may have against
Executive or others. In no event, shall Executive be obligated to seek other
employment by way of mitigation of the amounts payable to Executive under any of
the provisions of this Agreement.
9. SUCCESSORS AND ASSIGNS. This Agreement is binding on Executive and the
Company and its successors and assigns; provided, however, that the rights and
obligations of the Company under this Agreement may not be assigned to a
successor without the prior written consent of Executive which consent shall not
be unreasonably withheld. No rights or obligations of Executive hereunder may be
assigned by Executive to any other person or entity.
10. GOVERNING LAW. This Agreement shall be construed under and governed by
the laws of the State of New York without regard to the conflicts or choice of
law provisions thereof.
11. SEVERABILITY. Each section and provision of this Agreement shall be
considered severable and any invalidity of any provision shall not render
invalid or impair to any extent any other section or provision hereof, all of
which shall be interpreted to carry out the intent of the parties to the fullest
extent permissible under the law.
12. ARBITRATION. If any dispute arises between the parties with respect to
the application, interpretation, or termination of this Agreement, then such
dispute shall be submitted to arbitration for resolution in New York City. The
arbitrator shall be selected and the arbitration shall be conducted pursuant to
the Employment Dispute Resolution Rules of the American Arbitration Association
("AAA"). Any request for arbitration must be made in writing by the party
seeking arbitration and must be delivered by hand or sent by registered or
certified mail, return receipt requested, postage prepaid, to both the other
party and the AAA within 90 days after the date on which the dispute between the
parties first arose. The decision of the arbitrator regarding any such dispute
shall be final and binding on both parties, and any court of competent
jurisdiction may enter judgment upon the award. The Company shall reimburse
Executive for all reasonable legal fees and out-of-pocket expenses attributable
to the dispute, unless the position taken by the Company is found to be correct
in all material respects.
13. NOTICES. All notices hereunder shall be in writing and shall be deemed
to have been duly given if delivered by hand or sent by registered or certified
mail, return receipt requested, postage prepaid, to the party to receive the
same at the address set forth on the first page of this Agreement or at such
other address as may have been furnished to the sender by notice hereunder. All
notices shall be deemed given on the date on which delivered or, if mailed, 2
days after the date postmarked.
14. SURVIVAL OF RIGHTS AND OBLIGATIONS. All rights and obligations of
Executive and the Company arising during the term of this Agreement shall
continue to have full force and effect after the termination of the Agreement
unless otherwise provided herein.
15. MISCELLANEOUS. This Agreement shall be effective upon consummation of
the Distribution. If the Distribution does not occur, this Agreement shall be
null and void and Executive's Prior Agreement (as defined below) shall remain in
full force and effect without
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regard to this Section 15. Upon its effectiveness, this Agreement shall contain
the entire understandings of the parties hereto with respect to the employment
of Executive by the Company, and supersede all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto
in respect of such subject matter, including, without limitation, as of the
Commencement Date, the Employment Agreement, by and between, First Union
Management Inc., Imperial Parking Limited and Executive, dated January 15, 1999
(the "Prior Agreement"). No provision thereof may be altered, amended, modified,
waived, or discharged in any way whatsoever except by written agreement executed
by the parties. No delay or failure of either party to insist, in any one or
more instances, upon performance of any of the terms and conditions of this
Agreement or to exercise any rights or remedies thereunder shall constitute a
waiver or a relinquishment of such rights or remedies or any other rights or
remedies hereunder.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be duly
executed on the date and year first above written.
▇▇▇▇▇ ▇▇▇▇▇▇▇ IMPERIAL PARKING CORPORATION
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By:
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Only with respect to the termination of the Prior Agreement as provided in
Section 15 of the Agreement.
FIRST UNION MANAGEMENT, INC.
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IMPERIAL PARKING LIMITED
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